<PAGE>
UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended: March 31, 2000
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________ to ____________
Commission file number: 333-53841
WAM!NET Inc.
(Exact name of registrant as specified in its charter)
Minnesota 41-1795247
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
655 Lone Oak Dr
Eagan, Minnesota 55121
(Address of principal executive offices)
(Zip Code)
(651) 256-5100
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes [X] No [_]
As of March 31, 2000 there were 9,747,227 shares of the Corporation's Common
Stock, par value $.01 per share, outstanding.
Total number of pages in this report: 22
<PAGE>
WAM!NET Inc.
INDEX TO FORM 10-Q
Part I--Financial Information
<TABLE>
<CAPTION>
Page No.
--------
Item 1--Financial Statements
<S> <C>
Consolidated Balance Sheets as of March 31, 2000 (unaudited) and December 31,
1999................................................................................... 3
Consolidated Statements of Operations for the three months in the period
ended March 31, 2000 and 1999 (unaudited).............................................. 5
Consolidated Statements of Cash Flows for the three months in the periods ended
March 31, 2000 and 1999 (unaudited).................................................... 6
Notes to Consolidated Financial Statements (unaudited)................................... 8
Item 2--Management's Discussion and Analysis of Results of Operations
and Financial Condition.............................................................. 10
Item 3--Quantitative and Qualitative Disclosures About Market Risk........................... 16
Part II--Other Information
Item 2--Changes in Sercurities and Use of Proceeds........................................... 17
Item 4--Submission of Matters to a Vote of Security Holders.................................. 17
Item 6--Exhibits and Reports on Form 8-K..................................................... 17
Signature --.......................................................................................... 18
Exhibit Index--....................................................................................... 19
</TABLE>
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<PAGE>
Part I--FINANCIAL INFORMATION
Item 1--Financial Information
WAM!NET Inc.
Consolidated Balance Sheets
(Dollars in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------ -----------
<S> <C> <C>
(Unaudited)
Assets
Current assets:
Cash and cash equivalents........................................................... $ 37,292 $ 27,180
Investment.......................................................................... 64,286 --
Accounts receivable, net of allowance of $1,225 and $1,570, respectively............ 3,685 3,982
Inventory........................................................................... 955 1,254
Prepaid expenses and other current assets........................................... 4,068 4,018
-------- --------
Total current assets.................................................................. 110,286 36,434
Property, plant, and equipment, net................................................... 356,511 358,336
Goodwill, net......................................................................... 20,101 21,421
Deferred financing charges, net....................................................... 16,544 18,300
Other assets.......................................................................... 912 764
-------- --------
Total assets.......................................................................... $504,354 $435,255
======== ========
</TABLE>
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<PAGE>
WAM!NET Inc.
Consolidated Balance Sheets (continued)
(Dollars in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------ --------------
<S> <C> <C>
(Unaudited)
Liabilities and shareholders' deficit
Current liabilities:
Accounts payable................................................................... $ 5,911 $ 13,739
Accrued salaries and wages......................................................... 3,274 2,839
Accrued expenses................................................................... 8,002 6,450
Deferred Revenue................................................................... 2,500 2,500
Current portion of long-term debt.................................................. 37,175 55,950
--------- ---------
Total current liabilities............................................................ 56,862 81,478
Deferred Revenue..................................................................... 10,000 10,000
Long-term debt, less current portion................................................. 490,489 490,450
Class A Redeemable Preferred Stock................................................... 1,239 1,212
Shareholders' deficit:
Class B Convertible Preferred Stock................................................ 57 57
Class C Convertible Preferred Stock................................................ 9 9
Class D Convertible Preferred Stock................................................ 22 22
Class E Convertible Preferred Stock................................................ 1 --
Class F Convertible Preferred Stock................................................ -- --
Class G Convertible Preferred Stock................................................ -- --
Common Stock....................................................................... 97 95
Additional paid-in capital......................................................... 276,176 156,680
Accumulated deficit................................................................ (343,392) (303,614)
Accumulated other comprehensive income (loss)...................................... 12,794 (1,134)
--------- ---------
Total shareholders' deficit.......................................................... (54,236) (147,885)
--------- ---------
Total liabilities and shareholders' deficit.......................................... $ 504,354 $ 435,255
========= =========
</TABLE>
See accompanying notes.
-4-
<PAGE>
WAM!NET Inc.
Consolidated Statements of Operations
(Dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three months ended
March 31,
-----------------------------
2000 1999
---------- ----------
(Unaudited)
<S> <C> <C>
Revenues:
Net service revenues............................................................ $ 6,183 $ 3,128
Software and hardware sales..................................................... 1,712 1,710
---------- ----------
Total revenues.................................................................... 7,895 4,838
Operating expenses:
Network communication fees...................................................... 7,172 6,477
Cost of software and hardware................................................... 546 823
Network operations and development.............................................. 5,421 5,983
Selling, general, and administrative............................................ 11,917 10,299
Depreciation and amortization................................................... 8,653 8,206
---------- ----------
33,709 31,788
---------- ----------
Loss from operations.............................................................. (25,814) (26,950)
Other income (expense):
Interest income................................................................. 206 200
Interest (expense).............................................................. (15,261) (10,074)
Other income.................................................................... 1,092 29
---------- ----------
Net loss.......................................................................... (39,777) (36,795)
Less preferred dividends........................................................ (2,244) (555)
---------- ----------
Net loss applicable to common stock............................................... $ (42,021) $ (37,350)
========== ==========
Net loss applicable per common share - basic and diluted.......................... $ (4.41) $ (4.01)
========== ==========
Weighted average number of common shares outstanding - basic and diluted.......... 9,524,227 9,294,127
========== ==========
</TABLE>
See accompanying notes.
-5-
<PAGE>
WAM!NET Inc.
Consolidated Statements of Cash Flows
(Dollars in thousands)
<TABLE>
<CAPTION>
Three months ended
March 31,
-----------------------------
2000 1999
---------- ----------
(Unaudited)
<S> <C> <C>
Operating activities
Net loss.......................................................................... $(39,777) $(36,795)
Adjustments to reconcile net loss to net cash used in operating activities:
Noncash interest expense, including related warrants values..................... 7,118 8,564
Value of stock options issued to employees and consultants...................... 161 87
Depreciation and amortization................................................... 8,653 8,206
Changes in operating assets and liabilities:
Accounts receivable.......................................................... 296 (752)
Prepaid expenses and other assets............................................ 100 (420)
Accounts payable............................................................. (7,828) (5,467)
Accrued expenses............................................................. 1,993 (962)
-------- --------
Net cash used in operating activities............................................. (29,284) (27,539)
Investing activities
Purchases of property and equipment............................................... (5,091) (9,791)
Investment in Winstar Communications, Inc......................................... (50,000) --
Business acquisitions (net of cash acquired)...................................... (353) --
-------- --------
Net cash used in investing activities............................................. (55,444) (9,791)
Financing activities
Proceeds from sale of preferred stock............................................. 119,098 59,514
Proceeds from borrowings (net of financing expenses).............................. 477 3,500
Proceeds from exercise of stock options........................................... 199 5
Payments on borrowings............................................................ (24,576) (1,472)
-------- --------
Net cash provided by financing activities......................................... 95,198 61,547
Effect of foreign currencies on cash.............................................. (358) (318)
-------- --------
Net increase in cash and cash equivalents......................................... 10,112 23,899
Cash and cash equivalents at beginning of period.................................. 27,180 6,272
-------- --------
Cash and cash equivalents at end of period........................................ $ 37,292 $ 30,171
======== ========
</TABLE>
See accompanying notes.
-6-
<PAGE>
WAM!NET Inc.
Consolidated Statements of Cash Flows (continued)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three months ended
March 31,
-----------------------------
2000 1999
---------- ----------
(Unaudited)
<S> <C> <C>
Supplemental schedule of noncash financing activities
Conversion of accrued interest to subordinated debt......................... $ -- $ 458
Issuance of convertible preferred stock in exchange for land,
building and furniture & fixtures...................................... -- 40,000
Dividends declared but unpaid............................................... 20 --
Change in Market Value of Investments....................................... 14,286 --
Issuance of common stock relating to acquisition............................ 62 --
Conversion of accrued dividends to preferred stock.......................... -- 152
Supplemental schedule of cash flow information
Cash paid for interest...................................................... $ 7,577 $ 1,033
</TABLE>
See accompanying notes.
-7-
<PAGE>
WAM!NET INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Consolidated Financial Statements
The accompanying consolidated financial statements have been prepared by
WAM!NET Inc. (the "Company") without audit and reflect all adjustments
(consisting only of normal and recurring adjustments and accruals) which are, in
the opinion of management, necessary to present a fair statement of the results
for the interim periods presented. The statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of regulation
S-X, but omit certain information and footnote disclosures necessary to present
the statements in accordance with generally accepted accounting principles. The
results of operations for the interim periods presented are not necessarily
indicative of the results to be expected for the full fiscal year. These
financial statements should be read in conjunction with the Company's audited
Consolidated Financial Statements for the year ended December 31, 1999. The
December 31, 1999 balance sheet was derived from audited financial statements,
but does not include all disclosures required by generally accepted accounting
principles. Certain amounts for the prior year have been reclassified to
conform to current year presentation.
2. Consolidation Policy and Foreign Currency Translations
The consolidated financial statements include the accounts of the Company,
its wholly-owned subsidiaries and its 60% owned joint venture. All significant
intercompany accounts and transactions have been eliminated in consolidation.
All assets and liabilities are translated to U.S. dollars at year-end exchange
rates, while elements of the income statement are translated at average exchange
rates in effect during the year. The functional currencies of the Company's
foreign subsidiaries are considered to be the respective subsidiary's local
currency. All translation gains and losses resulting from fluctuations in
currency exchange rates of these subsidiaries are recorded in equity as a
component of accumulated other comprehensive loss.
3. Short-Term Investments
The short-term investment consists of Winstar Communications, Inc. common
stock which we received as proceeds from the sale of preferred stock. This
investment is classified as an available for sale security and is recorded at
its fair value at March 31, 2000. The unrealized gains and losses are reflected
as a component of accumulated other comprehensive income (loss).
4. Preferred Stock
In March, 2000, the Company entered into a transaction whereby Winstar
Communications, Inc. purchased a total of 85,000 shares of Class E convertible
preferred stock for $85,000, of which $35,000 was paid in cash and $50,000 was
paid in the form of 1,071,429 shares of Winstar common stock valued at $46.66
per share (as adjusted for the 3-for-2 Winstar stock split declared in February
2000). Other investors purchased 16,725 shares of Class E convertible preferred
stock for an aggregate $16,725 in cash. The Class E convertible preferred stock
accumulates dividends at an annual rate of 7%, which are added monthly to the
accreted liquidation value of the stock. Each of the two largest purchasers of
Class E convertible preferred stock has the right to elect one director, and
vote on an as-converted basis, not to exceed 17.5% of the total voting power, on
all matters submitted to the vote of common stock holders, including the
election of directors. The Class E convertible preferred stock is currently
convertible into 19,714,147 shares of common stock at an initial conversion rate
of $5.16 per share of common stock, subject to
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<PAGE>
anti-dilution provisions. Holders of Class E convertible preferred stock may
convert their shares into common stock at any time, and are required to convert
their shares into common stock. (beginning after the later to occur of (i) the
closing of an underwritten public offering of common stock raising at least
$50,000,000 of gross proceeds or (ii) the third anniversary of the date of
issuance of the Class E convertible preferred stock) at the then applicable
conversion rate, subject to adjustment for certain anti-dilution provisions, on
the last trading day of the first period of 20 consecutive trading days during
which the average (weighted by trading volume) closing price per share of common
stock during such 20 consecutive trading day period is at least 155% of the then
applicable conversion price.
In February 2000, SGI purchased 10,000 shares of Class F convertible
preferred stock for $10,000 in cash. The rights and preferences of the Class F
convertible preferred stock, including its conversion provisions, are
substantially the same as the rights and preferences of the Class E convertible
preferred stock, except that the holders of Class F preferred stock do not have
the right to separately elect directors and there is no cap on the voting power
of that class. The Class F convertible preferred stock is initially convertible
into a total of 1,937,984 shares of common stock, at an initial conversion rate
of $5.16 per share, subject to anti-dilution provisions.
In February 2000, the Company sold to Sumitomo and certain other investors
10,000 shares of Class G convertible preferred stock for an aggregate of $10,000
in cash. Holders of Class G convertible preferred stock have the right to vote,
on an as-converted basis, with holders of common stock on all matters submitted
to a vote of common stockholders. The Class G convertible preferred stock is
initially convertible into 1,937,984 shares of common stock, at an initial
conversion rate of $5.16 per share, subject to anti-dilution provisions. The
shares of Class G convertible preferred stock will mandatorily convert into
shares of common stock upon completion of an initial public offering.
5. Comprehensive Income
Comprehensive income for the Company includes net loss, the effects of
currency translation which are charged or credited to the cumulative translation
adjustment account within stockholders' equity, and the unrealized gain/loss on
investments available for sale which is recorded within stockholders equity.
Comprehensive income for the three months ended March 31, 2000 and 1999 was as
follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
For the three months
ended March 31,
- --------------------------------------------------------------------------------------------------------------------
(Dollars in thousands) 2000 1999
----- ----
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Net loss $(39,777) $(36,795)
- --------------------------------------------------------------------------------------------------------------------
Changes in cumulative translation adjustments (358) (318)
- --------------------------------------------------------------------------------------------------------------------
Unrealized gain/loss on investments 14,286 --
-------- --------
- --------------------------------------------------------------------------------------------------------------------
Comprehensive loss $(25,849) $(37,113)
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
Item 2--Management's Discussion and Analysis of Results of Operations and
Financial Condition
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion and analysis is based on the historical results of
WAM!NET Inc. (the ''Company'') and should be read in conjunction with the
Company's Financial Statements included herein. The following discussion
contains forward-looking statements that reflect our plans, estimates and
beliefs. Our actual results could differ materially from those discussed in the
forward-looking statements.
Overview
WAM!NET is a leading global provider of business-to-business e-services for
the media industry. We enable entertainment, advertising, publishing, printing
and related media businesses worldwide to collaborate on-line within their
workflow chains.
We offer our customers a wide array of e-services that meet their need to
collaborate digitally with their workflow partners. Our services, applications
and infrastructure provide a common electronic workflow platform to our
customers, enabling them to achieve measurable operating efficiencies, cost
savings and productivity growth.
We have made substantial investments in building our global network, hosting
and storage infrastructure. In addition, we have developed an array of digital
workflow services to meet the needs and demands of a broad-based customer group.
We have also invested in and developed a substantial and skilled customer
service group, which makes our services more valuable to existing customers and
more attractive to potential customers. Finally, we have made substantial
investments in recruiting, training and developing a skilled and knowledgeable
sales force, operations workforce and an application development workforce. We
use a consultative approach in our sales and marketing efforts to both identify
and meet our customers' diverse needs. Our initial focus and investment has been
in building an installed base of influential customers. We seek to increase the
utilization of our service offerings among our existing customers, as well as to
broaden our market penetration through the addition of new customers.
In December 1997, we acquired Freemail Inc., a developer of file transmission
and job ticket technology, to support our business-to-business e-services. In
March 1998, we established our presence in Europe with the acquisition of 4-
Sight Limited, a developer and worldwide marketer of ISDN-based digital data
transmission applications. 4-Sight had primarily sold software and hardware
supporting digital transmission of data to its customer base.
We offer a wide array of e-services including: (1) managed data transport, (2)
media application hosting, (3) managed data storage, (4) computer animation
rendering and (5) Internet-based services. Our services and network
infrastructure provide businesses a common electronic platform to seamlessly
integrate their production processes and accelerate the adoption of digital
workflow collaboration. Access to these services is provided through our Direct
Service, ISDN Tracked Service and Internet Gateway Service. Our initial focus
through 1998 was our Direct Service. This is our fastest, most secure and
reliable media transport service, providing direct, guaranteed access and
transport over our managed network. Our network access devices are installed on
our customers' premises and are connected to our network with a dedicated leased
line. We recently acquired a 20-year indefeasible right of use for backbone
capacity and purchased wireless local loop facilities in the U.S. from Winstar.
These facilities will allow us to offer our Direct Service customers greater
bandwidth capacity and eliminate the need for a dedicated leased line at a
customer's premises. In the first quarter of 1999 we began to provide access to
our network through our ISDN Tracked Service. Our ISDN Tracked Service offers
the security and predictability of dial-up connectivity to our network at a
slower transmission speed without the performance guarantee of Direct Service.
This service does not require a network access device or leased line
connectivity. We introduced our Internet Gateway Service in the
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<PAGE>
third quarter of 1999. Internet Gateway Service allows connection to our network
over the Internet. We provide hosted media applications with our managed data
services that further integrate our services into our customers' digital
workflow processes, including Transmission Manager, Info Center, Electronic Job
Tickets and Remote Proofing. We commercially introduced our WAM!BASE Data
Archiving Service in the first quarter of 2000. Also in the first quarter of
2000, we began to offer Render on Demand, a hosted service that processes
computer generated animation into high resolution motion images such as motion
picture special effects.
At March 31, 2000, we had over 11,400 subscribers using our business-to-
business e-services. Subscribers are customer sites that access our electronic
business-to-business services through our Direct Service, ISDN Tracked Service
and Internet Gateway Service.
Revenues
Service revenue
Our service revenue is directly related to the number of customers, type of
service, and volume of data moved, stored or processed. Service revenue is
derived primarily from annual or multi-year service contracts, many of which
have automatic renewal or extension provisions. These contracts generally
include a minimum monthly fee and additional charges for usage that exceeds a
minimum monthly service level. We currently offer our services at scaled minimum
usage fees, which typically range from $650 per month to $4,000 per month for
Direct Service, and from $45 per month to $360 per month for ISDN Tracked
Service. We record monthly service revenue for Direct Service and ISDN Tracked
Service based upon contracts signed with customers, following installation of
equipment and commencement of service at a customer's premises. Our Internet
Gateway Service is priced primarily on a per-megabyte basis and recognized as
revenue in the month the service is provided. Our Render on Demand service is
billed per computer processing unit hour and revenues are recognized as the
service is provided to the customer. We began to earn service revenue from ISDN
Tracked Service and Internet Gateway Service in March and September 1999,
respectively. Our WAM!BASE Archive Service is priced on the basis of megabytes
stored per month.
Software and hardware sales
Revenue from software and hardware sales has resulted primarily from the sale
of 4-Sight ISDN Manager software and ISDN cards. Our ISDN Tracked Service
customers may choose to make a single up-front payment to purchase our software
or to pay a monthly service fee. In both cases these purchases appear as
software and hardware revenue. We are in the process of shifting 4-Sight from a
product sales focus to a service model. As a result, we expect software and
hardware sales to decline in the future.
Operating Expenses
Network communication
Network communication expense represents the largest direct cost associated
with providing our Direct Service. Network communication expense includes the
costs of providing local loop telephone circuits connecting our network access
devices from a customer's premises to the nearest distribution hub and the costs
of the high bandwidth backbone carrier services which connect the distribution
hubs with our network operation and data storage centers.
Local telephone circuit connections provided by local exchange carriers
account for the substantial majority of these charges. National and
international service carrier charges account for the balance of these charges.
Network communication expense is generally a fixed monthly cost per circuit. We
believe that growing competition among telephony and communications providers
may reduce the future costs of local telephone circuit and backbone connections.
We actively seek to obtain and deploy technologies that will reduce the costs of
local telephone circuit
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<PAGE>
connections, such as wireless technologies, remote dial-up capabilities and DSL.
We also intend to use our network management tools to optimize the use of
existing and planned network capacity as volume increases and traffic patterns
emerge.
In December 1999, we purchased a 20-year indefeasible right of use for
backbone capacity and purchased wireless local loop facilities from Winstar.
When Winstar's wireless technology is deployed it will allow us to deliver
increased bandwidth, at speeds ranging from 1.5mb to 155mb per second, to
customers in most of the major U.S. metro areas, eliminating the need for local
telephone circuit connections. This increased bandwidth capability will also
allow us to offer additional services to new and existing customers.
Software and hardware
Software and hardware expense reflects the costs of software and hardware
sold.
Network operations and development
Network operations and development expense represents costs directly
associated with developing, maintaining, managing and servicing our global
private network and expanding our service offerings. These costs include direct
labor, vendor service fees, point-of-presence charges and research and
development charges, which are often incurred in advance of receiving revenue.
Our currently installed network operation centers account for the substantial
majority of these direct labor and operating costs. Most of the costs associated
with the development of new services and applications, such as WAM!BASE Data
Archiving Service, WAM!PROOF, ISDN Tracked Service, Internet Gateway Service and
Render on Demand service, are accounted for as network operations expenses and
are incurred in advance of receiving revenue.
Selling, general and administrative
Our selling expense consists primarily of the salaries and commissions of our
direct sales force and our global marketing groups, commissions for channel
partners, and the costs of ongoing marketing activities such as promotions and
channel development. Our sales and marketing efforts are focused on expanding
our customer base and increasing utilization on our network. Accordingly, we
offer new and existing services and develop new channels to sell and support our
services. We also seek to increase the utilization of our network with the
assistance of our influential customers who encourage their workflow partners to
use our services.
Our general and administrative expense includes administrative salaries,
related overhead and professional service fees. These costs reflect expenditures
related to the rapid growth and expansion of our administrative infrastructure
necessary to manage our globally expanding operations, and professional service
fees incurred in connection with financing activities, contract negotiations and
business acquisitions.
Depreciation and amortization
We generally retain ownership of the customer premise equipment and most of
the hardware and software necessary for our customers to use our services on a
turn-key basis. Depreciation and amortization expense includes depreciation of
this hardware and software as well as the equipment located in our distribution
hubs and network operation, hosting and data storage centers. We also amortize
certain costs relating to the acquisitions of 4-Sight and Freemail, which we
acquired using the purchase method of accounting. We anticipate additional
capital investments in our network, hosting and storage infrastructure
commensurate with customer demand and market opportunity.
-12-
<PAGE>
Results of Operations
Three Month Period Ended March 31, 2000 Compared with Three Month Period Ended
March 31, 1999
Revenues
Total revenue for the three months ended March 31, 2000 was $7.9 million
compared to $4.8 million for the three months ended March 31, 1999, an increase
of $3.1 million or 63.2%. This increase in revenues was due to a greater demand
for managed data and application services.
Net service revenue was $6.2 million for the three months ended March 31, 2000
compared to $3.1 million for the three months ended March 31, 1999, an increase
of $3.1 million or 97.7%. This increase in net service revenue was primarily due
to growth in the number of subscribers purchasing our services and increased
utilization by subscribers.
Revenues from software and hardware sales for the three months ended March 31,
2000 and 1999 remained flat at $1.7 million. We expect that sales of 4-Sight
software and hardware products will continue shifting to sales of service
contracts.
Operating Expenses
Network communication
Network communication expense for the three months ended March 31, 2000 was
$7.2 million compared to $6.5 million for the three months ended March 31, 1999,
an increase of $0.7 million or 10.7%. Network communication expenses increased
as a result of increased local loop connections directly related to growth in
the number of our Direct Service customers, and from expenses incurred as a
result of expanding our domestic and foreign network operations through the
installation of additional hubs. Average monthly communication expense per
Direct Service customer has declined, and is expected to continue to decline, as
a result of increased customer utilization of our backbone capacity and
declining costs of North American local loop connections. These trends were
partially offset by growth in our Direct Service customer base in Europe, where
local loop costs are generally higher than in North America. We continue to
incur substantial network communication expense as we deploy our network and
related services and applications globally; however, we expect the network
communications expense as a percentage of revenue to decline.
Software and hardware
The cost of software and hardware for the three months ended March 31, 2000
was $0.5 million compared to $0.8 million for the three months ended March 31,
1999. This decrease reflects the mix of hardware and software sold as stand
alone products or in association with ISDN Tracked Service agreements.
Network operations and development
Network operations and development expense for the three months ended March
31, 2000 was $5.4 million compared to $6.0 million for the three months ended
March 31, 1999, a decrease of $0.6 million or 9.4%. The decrease was primarily
due to completion of several development projects during 1999, including ISDN
Tracked Service, Internet Gateway Service and WAM!BASE Data Archiving Service
and the discontinuance of related outsourced development costs, partially offset
by costs incurred for establishing our network operations center in
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<PAGE>
Belgium and deploying our network in Europe. We expect that network operations
costs will increase as our network expands; however, the cost of network
operations as a percentage of revenue is expected to decline.
Selling, general and administrative
Selling, general and administrative expense for the three months ended March
31, 2000 was $11.9 million compared to $10.3 million, an increase of $1.6
million or 15.7%. The increase reflects increases in marketing expenses, for
introduction of new services and tradeshows, and increases to support the growth
of the company. We expect to continue to incur significant selling, general and
administrative expenses as we continue to increase market penetration and
traffic among existing customers. We expect selling, general and administrative
expenses will continue to decline as a percentage of revenue.
Depreciation and amortization
Depreciation and amortization for the three months ended March 31, 2000 was
$8.7 million compared to $8.2 million for the three months ended March 31, 1999,
an increase of $0.5 million or 5.5%. This increase was primarily due to
depreciation of additional network and related equipment purchased for network
expansion. Included in these totals for 2000 and 1999 was $1.7 million of
amortization expense relating to the goodwill recorded in connection with the 4-
Sight and Freemail acquisitions. We anticipate that depreciation and
amortization expense will increase in future periods as we continue to purchase
equipment and expand operations, and as we begin to depreciate the wireless
network facilities purchased from Winstar.
Interest income
Interest income for both of the three months ended March 31, 2000 and March
31, 1999 was $0.2 million.
Interest expense
Interest expense for the three months ended March 31, 2000 was $15.3 million
compared to $10.1 million for the three months ended March 31, 1999, an increase
of $5.2 million or 51.5%. The increase is related to the increase in long-term
debt necessary to fund operations including network facilities. Included in
interest expense for the three months ended March 31, 2000 and 1999, are non-
cash charges of $7.1 million, and $8.6 million related to the amortization of
deferred financing charges and the value of warrants issued in connection with
debt financing transactions.
Other income
Other income for the three months ended March 31, 2000 was $1.1 million
compared to $.03 million for the three months ended March 31, 1999, an increase
of $1.1 million. Other income primarily relates to rental income received from
SGI in connection with leasing a portion of the corporate campus facility in
Eagan which we received as part of an investment by SGI in March 1999.
Income taxes and net loss
At March 31, 2000, we had approximately $211.5 million of net operating loss
carryforwards. These carryforwards are available to offset future taxable income
through the year 2020 and are subject to the limitations of Section 382 of the
Internal Revenue Code of 1986. These limitations may result in the expiration of
net operating loss carryforwards before they can be utilized.
-14-
<PAGE>
Liquidity and Capital Resources
Since inception, we have incurred net losses and experienced negative cash
flow from operating activities. Net losses since inception have resulted in an
accumulated deficit of $346.6 million as of March 31, 2000. We expect to
continue to operate at a net loss and experience negative cash flow from
operating activities for the foreseeable future. Through March 31, 2000, we have
issued equity and debt securities and incurred other borrowings resulting in
cash received by us of $432.0 million. We have used the majority of these
proceeds to expand our global network, to build our customer base and for
geographic expansion. In addition, we expanded our operations in Europe through
the acquisition of 4-Sight for $16.4 million in cash and the issuance of equity
securities. Our ability to achieve profitability and positive cash flow from
operations will be dependent on substantially growing our revenues and realizing
increased operating efficiencies.
In December, 1999, we entered into an agreement with Winstar pursuant to which
we purchased a 20-year indefeasible right of use for backbone capacity and
purchased wireless local loop facilities. Under this agreement, we took title to
equipment of varying bandwidth capacity; Winstar has agreed to maintain the
equipment, including replacement as necessary for connectivity to Winstar's
telecommunications network at a specified level of functionality over the
agreement's term. We have the right to assign or sell our rights under the
facility at any time. The cost of the 20-year facility is payable in an initial
$20.0 million payment, which was made in January 2000, and quarterly payments,
beginning at $5.0 million and increasing to approximately $24.9 million, over a
seven-year period ending December 15, 2006. The network facility has been
capitalized in property, plant and equipment, and we have recorded a related
liability at the agreed-upon fair value of $260.3 million, which liability bears
an effective interest rate of 8.3%.
Under related agreements, Winstar has committed to purchase from us $12.5
million of services, which Winstar can use itself or resell to third parties.
Winstar's commitment was prepaid in December 1999, which prepayment has been
recorded as deferred revenue. We have also entered into a sublease agreement
with Winstar for space in our Minnesota data center. In December 1999, Winstar
made a one-time advance payment of approximately $12.5 million. We are required
to repay this advance payment at $200,000 per month over 10 years, at an imputed
interest rate of 15.7%. We have recorded the advance payment as a borrowing.
Winstar is required to make monthly payments of approximately $81,000 over 10
years.
In March, 2000, the Company entered into a transaction whereby Winstar
Communications, Inc. purchased a total of 85,000 shares of Class E convertible
preferred stock for $85 million, of which $35 million was paid in cash and $50
million was paid in the form of 1,071,429 shares of Winstar common stock valued
at $46.66 per share as adjusted for the Winstar 3-for-2 stock split declared in
February 2000. Also in this transaction, other investors purchased 16,725 shares
of Class E convertible preferred stock for an aggregate $16.7 million in cash.
The Class E convertible preferred stock accumulates dividends at an annual rate
of 7%, which are added monthly to the accreted liquidation value of the stock.
Each of the two largest purchasers of Class E convertible preferred stock has
the right to designate one director, and vote on an as-converted basis, provided
that no holder (based solely on its ownership of Class E convertible preferred
stock) shall be entitled to more than the number of votes equal 17.5% of the
voting power outstanding on the record date for the vote being taken (and
therefore to the extent that its ownership of Class E convertible preferred
stock would entitle it to voting power in excess of 17.5%, the voting power
shall be reduced to that percentage) and provided further that, with respect to
any holder of fewer than 50,000 shares of Class E convertible preferred stock,
the maximum voting percentage any such holder may have is equal to 17.5%
multiplied by a ratio, the numerator of which is the number of shares of Class E
convertible preferred stock held by such stockholder and the denominator of
which is 50,000, on all matters submitted to the vote of common stock holders,
including the election of directors. The Class E convertible preferred stock is
initially convertible into 19,714,147 shares of common stock at an initial
conversion rate of $5.16 per share, subject to anti- dilution provisions.
Holders of Class E convertible preferred shares may convert their shares into
common stock at any time, and are required to convert their shares into common
stock on the last trading day of the first 20 consecutive trading days during
which the weighted average closing price (weighted by daily trading volume) of
the common stock is at least $8.00 per share.
In February 2000, SGI purchased 10,000 shares of our Class F convertible
preferred stock from us for $10 million in cash. The rights and preferences of
the Class F convertible preferred stock, including its conversion provisions,
are substantially the same as the rights and preferences of our Class E
convertible preferred stock, except that the holders of Class F convertible
preferred stock do not have the right to separately elect directors and there is
no cap on the voting power of that class. The Class F convertible preferred
stock is initially convertible into a total of 1,937,984 shares of common stock
at an initial conversion rate of $5.16 per share, subject to anti-dilution
provisions.
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In February and March 2000, we sold to Sumitomo and other investors 10,000
shares of our Class G convertible preferred stock for $10 million in cash.
Holders of Class G convertible preferred stock have the right to vote, on an as-
converted basis, with holders of common stock on all matters submitted to a vote
of stockholders. The Class G convertible preferred stock is initially
convertible into 1,937,984 shares of common stock at an initial conversion rate
of $5.16 per share, subject to anti-dilution provisions. The shares of Class G
convertible preferred stock will mandatorily convert into shares of common stock
upon completion of this offering.
We believe the capital resources obtained from the foregoing transactions,
together with other financing resources available to the Company, will be
sufficient to fund our business plan through the current fiscal year.
Impact of Year 2000
In prior years, we developed and implemented plans to become Year 2000 ready.
In late 1999, we completed our remediation and testing of systems. As a result
of those implementation efforts, we experienced no significant disruptions in
critical information technology and non-information technology systems and
believe those systems successfully responded to the Year 2000 date change.
Expenses resulting from our Year 2000 efforts were not material. We are not
aware of any material problems resulting from Year 2000 issues, either with our
services, our internal systems, or the products and services of third parties.
We will continue to monitor our critical computer applications and those of our
suppliers and vendors throughout the year 2000 to ensure that any latent Year
2000 matters that may arise are addressed promptly.
Item 3--Quantitative and Qualitative Disclosures About Market Risk
Foreign Currency Exchange Rates
During the three month period ended March 31, 2000, our revenue originating
outside the U.S. was 36.1% of total revenue, substantially all of which was
denominated in the local functional currency. Currently, we do not employ
currency hedging strategies to reduce the risks associated with the fluctuation
of foreign currency exchange rates.
Our international business is subject to risks typical of an international
business, including, but not limited to: differing economic conditions, changes
in political climate, differing tax structures, other regulations and
restrictions, and foreign exchange rate volatility. Accordingly, our future
results could be materially adversely impacted by changes in these or other
factors.
Interest Rates
We invest cash in a variety of financial instruments, including bank time
deposits and fixed rate obligations of governmental entities and agencies. These
investments are denominated in U.S. dollars. Cash balances in foreign currencies
overseas are operating balances and are invested in short-term deposits of the
local operating bank.
Investments in fixed rate interest earning instruments carry a degree of
interest rate risk. Fixed rate securities may have their fair market value
adversely impacted due to a rise in interest rates. Due in part to these
factors, our future investment income may fall short of expectations due to
changes in interest rates, or we may suffer losses in principal if we sell
securities that have seen a decline in market value due to changes in interest
rates. Our investment securities are held for purposes other than trading.
We are exposed to market risk from changes in the interest rates on certain of
our outstanding debt. The outstanding loan balance under our $25 million
revolving credit facility bears interest at a variable rate based on prevailing
short-term interest rates in the U.S. and Europe. Based on the average
outstanding bank debt for the three months ended March 31, 2000, a 100 basis
point change in interest rates would not change interest expense by a
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material amount. For fixed rate debt such as our 13.25% senior discount notes,
interest rate changes affect its fair market value, but do not impact earnings
or cash flows.
Cash Equivalents and Investments
We account for cash equivalents and our investment in accordance with
Statement of Financial Accounting Standards (SFAS) No. 115, "Accounting for
Certain Investments in Debt and Equity Securities." Cash equivalents are short-
term, highly liquid investments with original maturity dates of three months or
less. Cash equivalents are carried at cost, which approximates fair market
value. Our investment is classified as available-for-sale and is recorded at
fair value with any unrealized gain or loss recorded as an element of
stockholders' equity.
Part II--OTHER INFORMATION
Item 2 - Changes in Securities and Use of Proceeds
(c) The information required by this Item 2 of Part II has been
previously reported in Item 2 of Part I of this Form 10-Q, and is incorporated
herein by reference. For a complete discussion of the transactions involving
recent sales of unregistered securities of the Company please see "Management's
Discussion and Analysis of Financial Condition and Results of Operations--
Liquidity and Capital Resources."
The sale of the Class E Preferred Stock, Class F Preferred Stock and
Class G Preferred Stock were exempt from the registration requirements of
Section 5 of the Securities Act of 1933 (the "Securities Act") pursuant to the
provisions of Section 4(2) of the Securities Act.
Item 4 - Submission of Matters to Vote of Security Holders.
On March 29, 2000, the shareholders at a Special Meeting amended the
Company's Articles of Incorporation to eliminate certain anti-takeover
provisions otherwise applicable under Minnesota law and to require the
affirmative vote of at least three-fourths (3/4ths) of the total voting power of
the Company to reinstitute the applicability of such provisions. The anti-
takeover provisions that were eliminated generally limit the voting rights of
securities held by a shareholder representing more than 20% of the voting stock
and permit the Company to reacquire such securities from such holder. The
shareholders also amended the Articles to eliminate reference to an outdated
class of preferred stock and to change the authorized capital of the Company,
and also authorized the filing of the Restated Articles of Incorporation
incorporating the actions approved at the Special Meeting.
The votes cast in connection with each such action were as follows:
1. Providing that Section 302A.671 of Minnesota Statutes
("Control Share Acquisitions") shall not apply to the Company:
For: 6,207,520 Against: 2,500 Withhold Authority: 55,833
Abstain 18,710,271.
2. Requiring 3/4ths affirmative vote of the total voting power of
the Company to make Section 302A.671 of Minnesota Statutes
applicable to the Company in the future:
For: 6,206,687 Against: 3,333 Withhold Authority: 55,833
Abstain 18,710,271.
3. Eliminating reference to outdated Class A Preferred stock:
For: 6,262,520 Against: 2,500 Withhold Authority: 833
Abstain 18,710,271.
4. Changing authorized capital stock from 490,000,000 common
shares and 10,000,000 undesignated shares to 480,000,000
common shares and 20,000,000 undesignated shares:
For: 6,262,520 Against: 2,500 Withhold Authority: 833
Abstain 18,710,271.
5. Adopting Restated Articles of Incorporation reflecting actions
taken at Special Meeting:
For: 6,264,187 Against: 833 Withhold Authority: 833
Abstain 18,710,271.
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibits
See Exhibit Index
(b) Reports on Form 8-K
None
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed by the
undersigned thereunto duly authorized.
WAM!NET Inc.
Date: May 11, 2000
By: /s/ Terri F. Zimmerman
------------------------
Terri F. Zimmerman
Chief Financial Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Item
Number Description
- ------ -----------
<S> <C>
2.1 (1) Agreement for the Sale and Purchase of the entire issued share capital of WAM!NET U.K. Limited
dated February 11, 1998, among the Company, WAM!NET (UK) Limited and the Selling Shareholders
listed therein.
2.2 (1) Agreement and Plan of Reorganization dated December 17, 1997 by and among NetCo Communications
Corporation, NetCo Acquiring Corporation, FreeMail, Inc. and the shareholders listed therein.
2.3 (4) June 1, 1999 Amendment to the Agreement and Plan of Reorganization, dated December 17, 1997, by
and among the Company, NetCo Acquisition Corporation, FreeMail, Inc. and the shareholders listed
therin.
3.1 * Amended and Restated Articles of Incorporation of the Company.
3.2 (1) By-Laws of the Company.
4.1 (1) Indenture dated as of March 5, 1998, between the Company, as Issuer, and First Trust National
Association, as Trustee.
4.2a (1) Certificate for the Rule 144A Original Notes ($200.0 million).
4.2b (1) Certificate for the Rule 144A Original Notes ($8.0 million).
4.3 (1) Certificate for the Regulation S Original Notes.
4.4 (1) Certificate for the Rule 144A Warrants.
4.5 (1) Certificate for the Regulation S Warrants.
4.6a (1) Rule 144A Unit Certificate. (200,000 Units)
4.6b (1) Rule 144A Unit Certificate. (8,030 Units)
4.7 (1) Certificate for the Regulation S Units.
4.8 (1) Form of Certificate for the Exchange Notes (incorporated herein by reference and included in
Exhibit 4.1 to the Company's Registration Statement on Form S-4 filed with Securities and
Exchange Commission on May 28, 1998).
4.9 (1) Common Stock Certificate.
4.10 (1) Registration Rights Agreement, dated March 5, 1998, among the Company and Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Credit Suisse First Boston Corporation and First Chicago Capital
Markets, Inc.
4.11 (1) Common Stock Registration Rights Agreement, dated as of March 5, 1998, among the Company, MCI
WorldCom, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse First Boston
Corporation and First Chicago Capital Markets, Inc.
4.12 (1) Warrant Agreement, dated as of March 5, 1998, by and between the Company and First Trust National
Association, as Warrant Agent, to purchase Common Stock of the Company.
4.13 Intentionally omitted.
4.14 (2) Warrants to purchase 4,157,500 Shares of Common Stock of the Company exercisable on or before
December 31, 2000, issued to MCI WorldCom, Inc. on December 16, 1996 (Incorporated herein by
reference to exhibit 10.6 of the Company's Registration Statement on Form S-4 (File No.
333-53841) filed with the Securities and Exchange Commission on May 28, 1998).
4.15 (2) Certificate for 13.25% Subordinated Unsecured Convertible Note due August 28, 2005, ($25.0
million Note) issued to MCI WorldCom, Inc. on January 13, 1999.
4.16 (2) Certificate for 1,679,234 Class A Warrants and 2,840,967 Class B Warrants to purchase Common
Stock of the Company, issued to MCI WorldCom Inc. on September 26, 1997 (Incorporated herein by
reference to Exhibit 10.9 of the Company's Registration Statement on Form S-4 (File No.
333-53841) filed with the Securities and Exchange Commission on May 28, 1998).
4.17 (2) Subordinate Unsecured Convertible Note and Warrant Purchase Agreement between the Company and MCI
WorldCom, Inc. dated January 13, 1999.
</TABLE>
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<TABLE>
<S> <C>
4.18 (2) Preferred Stock Purchase Agreement by and between the Company and Silicon Graphics, Inc. dated as
of March 3, 1999.
4.19 (2) Certificate for 150,000 Warrants to purchase shares of Common Stock for the purchase price of
$.01 per share dated January 13, 1999.
4.20 (2) Certificate of Designation of Rights and Preferences of Class A Preferred Stock of the Company
filed with the Secretary of State of the State of Minnesota on March 4, 1999, as corrected and
filed with the Secretary of State of the State of Minnesota on March 5, 1999.
4.21 (2) Certificate of Designation of Rights and Preferences of Class B Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on March 4, 1999.
4.22 (2) Certificate of Designation of Rights and Preferences of Class C Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on March 4, 1999.
4.23 (2) Certificate of Designation of Rights and Preferences of Class D Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on March 4, 1999.
4.24 (2) Certificate representing 115,206 shares of Class A Preferred Stock of the Company issued to MCI
WorldCom. Inc. on March 4, 1999.
4.25 (2) Certificate representing 5,710,425 shares of Class B Convertible Preferred Stock of the Company
issued to Silicon Graphics, Inc. on March 4, 1999.
4.26 (2) Certificate representing 878,527 shares of Class C Convertible Preferred Stock of the Company
issued to Silicon Graphics, Inc. on March 4, 1999.
4.27 (2) Certificate representing 2,196,317 shares of Class D Convertible Preferred Stock of the Company
issued to MCI WorldCom. Inc. on March 4, 1999.
4.28 (2) Stockholders Agreement by and among the Company, Silicon Graphics, Inc. and MCI WorldCom, Inc.
dated as of March 4, 1999.
4.29 (2) Class A Preferred Stock Exchange Agreement by and between the Company and MCI WorldCom, Inc.
dated as of March 4, 1999.
4.30 (2) Class D Preferred Stock Conversion Agreement by and between the Company and MCI WorldCom, Inc.
dated as of March 4, 1999.
4.31 (6) Certificate of Designation of Rights and Preferences of Class E Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on February 16, 2000, as
corrected and filed with the Secretary of State of the State of Minnesota on March 1 and March 8,
2000.
4.32 (6) Certificate of Designation of Rights and Preferences of Class F Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on February 11, 2000, as
corrected and filed with the Secretary of State of the State of Minnesota on March 1 and March 9,
2000.
4.33 (6) Certificates of Designation of Rights and Preferences of Class G Convertible Preferred Stock of
the Company filed with the Secretary of State of the State of Minnesota on February 6, 2000.
4.34 (6) Securities Purchase Agreement, dated as of December 31, 1999, by and between the Company and
Winstar Communications, Inc.
4.35 (6) Securities Purchase Agreement, dated as March 14, 2000, by and between the Company and Cerebrus
Partners, L.P.
4.36 (6) Securities Purchase Agreement, dated February 3, 2000, by and between the Company and Silicon
Graphics, Inc.
4.37 (6) Preferred Stock Purchase Agreement, dated as of February 18, 2000, by and between the Company and
the buyers listed on Schedule 1.1 thereto.
4.38 (6) Form of Certificate for Shares of Class E Convertible Preferred Stock of the Company.
4.39 (6) Form of Certificate for shares of Class F Convertible Preferred Stock of the Company.
4.40 (6) Form of Certificate for shares of Class G Convertible Preferred Stock of the Company.
4.41 (6) Certificate for 200,000 Warrants to purchase shares of Common Stock for the purchase price of
$.01 per share issued to MCI WorldCom, Inc. in connection with the 13.25% subordinated unsecured
convertible Note, dated January 13, 1999.
10.1 (1) Credit Agreement among the Company, the Lending Institutions party thereto, as Lenders, The First
National Bank of Chicago, as Agent, dated as of September 26, 1997.
</TABLE>
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<TABLE>
<S> <C>
10.2 (1) Ten Percent Convertible Note Purchase Agreement between the Company and MCI WorldCom, Inc., dated
September 12, 1996 ($5.0 million Note).
10.3 (1) Preferred Stock, Subordinated Note and Warrant Purchase Agreement between the Company and MCI
WorldCom, Inc., dated November 14, 1996.
10.4 (1) $28.5 million Seven Percent Subordinated Note due December 31, 2003, payable to MCI WorldCom,
Inc.
10.5 Intentionally omitted.
10.6 Intentionally omitted.
10.7 (1) Right of Refusal Agreement Among WorldCom Inc., Edward Driscoll III and Alan L. Witters dated
December 16, 1996.
10.8 (1) Guaranty Agreement dated September 26, 1997, by and between the Company and MCI WorldCom, Inc.
10.9 Intentionally omitted.
10.10 (1) Sublease dated September 24, 1997 between the Company and 1250895 Ontario Limited, relating to
the property located at 6100 110th Street West, Bloomington, Minnesota.
10.11 (1) Service Provision Agreement dated as of July 18, 1997, by and between the Company and Time Inc.
10.12 (1) Standby Agreement dated as of July 19, 1997 by and between MCI WorldCom, Inc. and Time Inc.
10.13 Intentionally omitted.
10.14 Intentionally omitted.
10.15 Intentionally omitted.
10.16 Intentionally omitted.
10.17 (1) Agreement dated February 11, 1998 between the Company and MCI WorldCom, Inc. modifying certain
terms of the (i) 10% Convertible Subordinated Note, due September 30, 1999, (ii) 7% Subordinated
Note, due December 31, 2003, and (iii) 100,000 shares of Series A Preferred Stock, all of which
are held by MCI WorldCom, Inc. (incorporated herein by reference to exhibit No. 4.17 to the
Company's Registration Statement on Form S-4 (File No. 333-53841) filed with the Securities and
Exchange Commission on May 28, 1998)
10.18 (1) 1994 Stock Option Plan
10.19 (1) Amended and Restated 1994 Stock Option Plan
10.20 (1) 1998 Combined Stock Option Plan.
10.21 (1) Agreement dated June 5, 1997 between the Company and WorldCom, Inc. regarding data services
provided by MCI WorldCom, Inc. to the Company.
10.22 (3) Preferred Provider Agreement by and between the Company and Silicon Graphics, Inc., dated as of
March 4, 1999 (portions of this exhibit have been ommitted pursuant to a request for confidential
treatment and have been filed with the Securities Commission under separate cover).
10.23 (2) Sale and Purchase Agreement by and between Silicon Graphics, Inc., on behalf of itself and its
wholly-owned subsidiary, Cray Research, L.L.C., and the Company dated as of March 4, 1999.
10.24 (2) Lease by and between the Company and Silicon Graphics, Inc. on behalf of itself and its
wholly-owned subsidiary, Cray Research, L.L.C., with respect to the Company's corporate campus
facility located in Eagan, Minnesota dated as of March 4, 1999.
10.25 Intentionally omitted.
10.26 Intentionally omitted.
10.27 (4) Loan and Security Agreement, dated July 16, 199, by and between Foothill Capital Corporation and
the Company.
10.28 (5) Purchase and Sale Agreement and Escrow Instructions,, dated September 30, 1999, between the
Company and CCPRE-Eagan, LLC.
10.29 (5) Amendment No. 1 to the Purchase and Sale Agreement and Escrow Instructions, dated September 30,
1999 between the Company and CCPRE-Eagan, LLC.
10.30 (5) Net Lease, dated September 30, 1999 between the Company and CCPRE-Eagan, LLC.
10.31 (6) Master Agreement by and between Winstar Wireless, Inc. and the Company, dated December 31, 1999.
27.1 Financial Data Schedule.
</TABLE>
________________
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(1) Incorporated herein by reference to our Registration Statement on Form S-4
(File No. 333-53841), filed with the SEC on May 28, 1998.
(2) Incorporated herein by reference to our Annual Report on Form 10-K, filed
with the SEC on March 31, 1999.
(3) Incorporated herein by reference to our Quarterly Report on Form 10-Q,
filed with the SEC on May 17, 1999.
(4) Incorporated herein by reference to our Quarterly Report on Form 10-Q,
filed with the SEC on August 4, 1999.
(5) Incorporated herein by reference to our Quarterly Report on Form 10-Q,
filed with the SEC on November 12, 1999.
(6) Incorporated herein by reference to our Annual Report on Form 10-K, filed
with the SEC on March 15, 2000.
* Filed herein.
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Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
of
WAM!NET INC.
ARTICLE 1.1.
NAME
The name of the corporation is WAM!NET Inc., which shall be referred to
in these Amended and Restated Articles of Incorporation as the "Corporation."
ARTICLE 2.2.
REGISTERED OFFICE
The address of the registered office of the Corporation in Minnesota is
655 Lone Oak Drive, Eagan, Minnesota 55121.
ARTICLE 3.3.
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE 4.4.
PURPOSE
The Corporation is organized for general business purposes.
ARTICLE 5.5.
POWERS
The Corporation shall have the unlimited power to engage in and to do
any act necessary or incidental to the carrying out of its purposes, together
with the power to do or perform any acts consistent with or which may be implied
from the powers expressly conferred upon corporations by Minnesota Statutes,
Chapter 302A.
ARTICLE 6.6.
STOCK
6.1) Capitalization. The aggregate number of shares of stock that the
Corporation has authority to issue shall be five hundred million (500,000,000)
shares, which shall consist of (a) four hundred eighty million (480,000,000)
shares of common stock, with a par value of One Cent ($.01) per share ("Common
Stock"); and (b) twenty million (20,000,000) shares of undesignated stock
("Undesignated Stock"). The Board of Directors of the Corporation is authorized
to establish from the
<PAGE>
Undesignated Stock, by resolution adopted and filed in the manner provided by
law, one or more classes or series of shares, to designate each such class or
series (which may include but is not limited to designation as additional Common
Stock), and to fix the relative rights and preferences of each such class or
series.
6.2) Prior Certificates of Designation. A number of shares of
Undesignated Stock have already been designated by the Board of the Directors of
the Corporation pursuant to those certain Certificates of Designation, and
amendments and corrections thereto, previously adopted by the Board of Directors
of the Corporation and filed with the Minnesota Secretary of State as further
described on Schedule 1 attached hereto (collectively, the "Certificates). The
Certificates shall remain in full force and effect in accordance with their
respective terms after the effective date of these Amended and Restated Articles
of Incorporation. Any other Certificates of Designation filed by the Company
prior to the effective date of these Amended and Restated Articles of
Incorporation and not described on Schedule 1 attached hereto are hereby
canceled. Any shares currently issued and outstanding pursuant to the
Certificates, as amended and identified on Schedule 1, shall remain issued and
outstanding shares after the Effective Date subject to the same designations,
rights and preferences stated in the Certificates, as amended, and these Amended
and Restated Articles of Incorporation. Any such shares that are hereafter
converted into shares of Common Stock pursuant to the terms of the Certificates,
as amended, or redeemed, purchased or otherwise acquired by the Company shall be
retired and canceled promptly after such conversion, redemption, purchase or
acquisition and shall become authorized but unissued shares of Undesignated
Stock and may be reissued subject to the conditions and restrictions on issuance
in these Amended and Restated Articles of Incorporation, in any other
Certificate of Designation creating a series of preferred stock or any similar
stock, or as otherwise required by law.
6.3) Preemptive Rights. Shareholders shall not have any preemptive or
preferential rights for or to shares of this Corporation, whether now or
hereafter authorized, or to any obligations convertible into shares of this
Corporation, or to any options, warrants or other rights to acquire shares of
this Corporation, or to any subscription or right of subscription therefor,
except such, if any, as may be provided in any Certificate or as the Board of
Directors in its sole discretion may determine from time to time, and at such
price or terms as the Board of Directors may fix. The Board of Directors may, at
any time and from time to time, issue and sell for such consideration as may be
permitted by law and these Amended and Restated Articles of Incorporation, any
or all of the authorized shares of the Corporation not then issued and any and
all of any stock of any class or series that may hereafter be authorized.
6.4) Issuance of Shares. Subject to this Article 6, the Board of
Directors may issue any or all shares of the Corporation
2
<PAGE>
authorized by these Amended and Restated Articles of Incorporation and not
already issued, including any shares previously issued and reacquired by the
Corporation. Upon approval by the Board of Directors, shares may be issued (i)
for any consideration determined appropriate by the Board of Directors, or (ii)
for no consideration in order to effectuate share conversions, dividends or
splits, including reverse splits.
6.5) Issuance of Rights to Acquire Shares. Subject to Section 6.4, the
Board of Directors may issue rights to purchase shares of the Corporation, and
shall fix the terms, provisions and conditions of such rights to purchase,
including the conversion basis and the price at which shares may be purchased or
subscribed for. Shares to be issuable upon the exercise of all outstanding
rights to purchase, including such rights to be issued, must be authorized by
these Amended and Restated Articles of Incorporation and not already issued.
ARTICLE 7.7.
SHAREHOLDERS
Unless otherwise provided in these Amended and Restated Articles of
Incorporation or in any Certificate of Designation, all shareholder actions
shall require an affirmative vote of the holders of a majority of the voting
power of the shares represented and entitled to vote at a duly held meeting,
except where the law requires a vote with respect to all outstanding shares of
the Corporation, in which case the affirmative vote of a majority of the shares
entitled to vote (by class or series if more than one class or series of shares
is outstanding and entitled to vote separately as a class or series on such
matter) shall be sufficient to authorize the action.
ARTICLE 8.8.
NON-CUMULATIVE VOTING
Unless otherwise provided in these Amended and Restated Articles of
Incorporation or in a Certificate of Designation, cumulative voting for
directors shall not be permitted.
ARTICLE 9.9.
DIRECTORS
9.1) Power; Voting. The Board of Directors shall have the power and
authority to take any action required or permitted by law or by these Amended
and Restated Articles of Incorporation. The Board of Directors shall take action
by the affirmative vote of a majority of directors present at a duly held
meeting, except where law requires the affirmative vote of a larger proportion
or number.
3
<PAGE>
9.2) Written Action. Any action required or permitted to be taken at a
board meeting may be taken by written action signed by a majority of directors.
If the action must also be approved by the shareholders, then the action must be
taken by written action of all the directors.
9.3) Indemnification. A director of the Corporation shall not be
personally liable to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for (i) liability based on a
breach of the duty of loyalty to the Corporation or the shareholders (ii)
liability for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law; (iii) liability under Minnesota
Statutes Section 302A.559 or 80A.23; or (iv) liability for any transaction from
which the director derived an improper personal benefit. If Chapter 302A of the
Minnesota Statutes is hereafter amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by Chapter 302A of the
Minnesota Statutes, as amended. Any repeal or modification of this Section 9.3
by the shareholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation at the time of such repeal or modification.
ARTICLE 10.10.
BYLAWS
The Board of Directors may adopt bylaws which may contain any provision
relating to the management of the business or the regulation of the affairs of
the Corporation not inconsistent with law or these Amended and Restated Articles
of Incorporation. The power to adopt, amend or repeal the bylaws shall be vested
in the Board of Directors.
ARTICLE 11.11.
INAPPLICABILITY OF
MINNESOTA CONTROL SHARE ACQUISITION ACT
Section 302A.671 of the Minnesota Statutes shall not apply to the
Corporation, and these Amended and Restated Articles of Incorporation may not be
amended to make Section 302A.671 of the Minnesota Statutes applicable to the
Corporation without the affirmative vote of at least three-quarters (3/4) of the
voting power of the shares outstanding and entitled to vote.
4
<PAGE>
SCHEDULE 1
Certificates of Designation
---------------------------
<TABLE>
<CAPTION>
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Certificate of Designation of Rights and Preferences of 115,206 March 7, 2000
Class A Preferred Stock
March 17, 2000
As corrected by Articles of Correction of Certificate of
Designation of Rights and Preferences of Class A
Preferred Stock
Certificate of Designation of Rights and Preferences of 5,710,425 March 4, 1999
Class B Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
Certificate of Designation of Rights and Preferences of 878,527 March 4, 1999
Class C Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
</TABLE>
<PAGE>
SCHEDULE 1 (Continued)
<TABLE>
<CAPTION>
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Certificate of Designation of Rights and Preferences of 2,196,317 March 4, 1999
Class D Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of August 17, 1999
Designation of Rights and Preferences of Class A
Preferred Stock, Class B Convertible Preferred Stock,
Class C Convertible Preferred Stock and Class D
Convertible Preferred Stock
Amendment to Certificate of Designation of Rights and 116,725 March 8, 2000
Preferences of Class E Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of
Designation of Rights and Preferences of Class E March 17, 2000
Convertible Preferred Stock
Certificate of Designation of Rights and Preferences of 50,000 February 11, 2000
Class F Convertible Preferred Stock
As corrected by Articles of Correction of Certificate of March 1, 2000
Designation of Rights and Preferences of Class E
Convertible Preferred Stock and Class F Convertible
Preferred Stock
As further corrected by Articles of Correction of March 9, 2000
Certificate of Designation of Rights and Preferences of
Class F Convertible Preferred Stock
</TABLE>
2
<PAGE>
SCHEDULE 1 (Continued)
<TABLE>
<CAPTION>
Date Filed With
Number of Shares Minnesota Secretary
Certificate and Amendments and Corrections Designated of State
- -------------------------------------------------------------- ---------------- -------------------
<S> <C> <C>
Certificate of Designation of Rights and Preferences of 10,000 March 6, 2000
Class G Convertible Preferred Stock
</TABLE>
3
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 37,292
<SECURITIES> 64,286
<RECEIVABLES> 4,910
<ALLOWANCES> 1,225
<INVENTORY> 955
<CURRENT-ASSETS> 110,286
<PP&E> 402,704
<DEPRECIATION> 46,193
<TOTAL-ASSETS> 504,354
<CURRENT-LIABILITIES> 56,862
<BONDS> 490,489
1,239
89
<COMMON> 97
<OTHER-SE> (154,422)
<TOTAL-LIABILITY-AND-EQUITY> 504,354
<SALES> 1,712
<TOTAL-REVENUES> 7,895
<CGS> 546
<TOTAL-COSTS> 7,718
<OTHER-EXPENSES> 17,338
<LOSS-PROVISION> 1,225
<INTEREST-EXPENSE> 15,260
<INCOME-PRETAX> (39,777)
<INCOME-TAX> 0
<INCOME-CONTINUING> (39,777)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (42,021)
<EPS-BASIC> (4.41)
<EPS-DILUTED> (4.41)
</TABLE>
