UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1995 COMMISSION FILE NO. 0-12386
INCOMNET, INC.
A California IRS Employer No.
Corporation 95-2871296
21031 Ventura Blvd., Suite 1100
Woodland Hills, California 91364
Telephone no. (818) 887-3400
Securities registered pursuant to Section 12(b)of the Act:..............None
Securities registered pursuant to Section 12(g)of the Act:..................
..................................................Common Stock, No Par Value
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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 for 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__
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy
or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ ]
Aggregate market value of voting common stock held by non-
affiliates of the registrant (based upon the average of the closing bid
and ask prices of $5 3/8 and $5 5/8 respectively, as reported by the
NASDAQ System on March 27, 1996 $55,939,956
Number of shares of registrant's common stock outstanding as of
March 27, 1996 13,224,024
Documents incorporated by reference: Portions of registrant's proxy
statements relating to registrant's 1996 annual meeting of
shareholders have been incorporated by reference into Part III hereof.
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TABLE OF CONTENTS
PART I PAGE
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ITEM 1 - BUSINESS
General 5
Telephone Services 5
Optical Systems 5
Network Products and Services 5
National Telephone & Communications, Inc. (NTC) 6
Products 6
Network Marketing Program 6
Disclosure of Independent Representative Organizations
Related to NTC Executives 7
Pager Agreement 7
Wiltel Contract 8
Management Incentive Agreement 8
Acquisition of Rapid Cast, Inc. (RCI) 9
Acquisition 9
Financing of Acquisition 10
Registration Rights 11
Right to Designate Directors 11
Certain Transactions 11
Agreement with Martin Price 12
Rapid Cast, Inc. (RCI) 12
General 12
The Optical Marketplace 12
The Production and Dispensing of Prescription
Eyeglass Lenses 13
The Rapid Cast LenSystem 15
Technical Overview of the Rapid Cast LenSystem 15
Marketing and Pricing Strategy 16
Manufacturing Strategy 17
Research and Development Strategy 17
Maintenance, Warranty and Insurance 17
Competition 17
Patents and Proprietary Rights 18
Governmental Regulation 19
Acquisition of LabTech, Inc. 19
Nonissuer Sales of Stock Pursuant to Regulation S 20
Agreement with Price International, Inc. 20
Network Services 21
Employees, Officers and Directors 21
Employees 21
Officers 22
Reconstitution of Board of Directors 22
ITEM 2 - PROPERTIES 23
ITEM 3 - LEGAL PROCEEDINGS 24
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TABLE OF CONTENTS (CONT'D)
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Securities & Exchange Commission Investigation 24
Class Action and Related Lawsuits 24
Section 16 (b) Lawsuit 25
Patent Infringement Lawsuit 26
Legal Action Against Prior Representatives 26
Claims by Prior Noteholders 27
Potential Lawsuits 27
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS 28
PART II
ITEM 5 - MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS 29
Market Information 29
Dividends 30
ITEM 6 - SELECTED FINANCIAL DATA 30
Statements of Operations Data 30
Balance Sheet Data 31
ITEM 7 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 31
Liquidity and Capital Resources 31
Results of Operations - 1995 Compared to 1994 33
Results of Operations - 1994 Compared to 1993 35
ITEM 8 - FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA 36
PART III
ITEM 10 - DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL
PERSONS OF THE REGISTRANT 37
ITEM 11 - EXECUTIVE COMPENSATION 37
ITEM 12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT 37
ITEM 13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS 37
PART IV
ITEM 14 - EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON
FORM 8-K 38
Index to Financial Statements 38
Index to Exhibits 39
Report of Independent Auditors 41
Consolidated Balance Sheets 42
Consolidated Statements of Operations 44
Consolidated Statements of Shareholders' Equity 45
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Consolidated Statements of Cash Flows 46
Notes to Consolidated Financial Statements 48
Note 1 - Summary of Significant Accounting Policies 48
Note 2 - Funding of Marketing Commissions and
Deferred Income 49
Note 3 - Related Party Transactions 50
Note 4 - Notes Payable 50
Note 5 - Deferred Tax Liability 51
Note 6 - Shareholders' Equity 52
Note 7 - Commitments and Contingencies 55
Note 8 - Network Marketing Costs 56
Note 9 - Segment Information 57
Note 10 - Gain on Settlement with Creditors 59
Note 11 - Acquisition of Rapid Cast, Inc. 59
Note 12 - Fourth Quarter Adjustments 59
Schedule II - Valuation and Qualifying Accounts 60
Exhibit 3.2 - Amendment to Bylaws Regarding Directors 61
Exhibit 10.2 - Lease Agreement 62
Exhibit 21 - Subsidiaries of the Registrant 69
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PART I
ITEM 1. BUSINESS
GENERAL:
Incomnet, Inc. (the "Company") was incorporated under the laws of the State of
California on January 31, 1974. The Company is engaged in the following
businesses:
Telephone services - The Company, through its wholly-owned subsidiary,
National Telephone & Communications, Inc. (NTC), markets long distance
telecommunications services to commercial and residential customers in the
United States. Service is provided by procuring long distance
telecommunications transmission services from long distance communication
carriers at high volume wholesale rates and reselling those services at
retail rates. NTC uses a network marketing program of independent
representatives to sell its telecommunications-related services to retail
customers. NTC does not sign up telephone customers directly. The growth in
NTC's telecommunications-related revenues is directly tied to its network
marketing program. NTC's independent representatives typically pay an annual
fee in order to purchase materials, training and/or annual services from
NTC to assist them in selling new retail customers and enrolling
other representatives in the NTC program. NTC pays the independent
representatives a residual monthly commission on the telecommunications
revenue. In addition, the network marketing program pays various bonuses
and overrides when and if representatives obtain a minimum number of new
telephone customers within a specific 30 to 60 day period. This program has
been designed to bring NTC new retail telephone customers even if little or
no growth occurs in the marketing program revenues. The new telecommunications
revenues generally lag the new marketing program revenues by one to three
months. Sales from this segment accounted for 96% of the Company's total
1995 sales.
Optical systems- The Company, through its 51%-owned subsidiary Rapid Cast,
Inc. (RCI), acquired in February 1995 (see "Acquisition of Rapid Cast,Inc."),
manufactures and markets the FastCast LenSystem that allows retail optical
stores and wholesale optical lens manufacturing laboratories to produce
single vision, flat-top bifocal and progressive bifocal lenses on demand, in
approximately 30 minutes. The FastCast LenSystem uses a series of
high-accuracy prescription glass molds that are filled with a proprietary
liquid monomer (plastic). When exposed to ultraviolet light within the
system's curing chamber, the monomer undergoes a chemical reaction that
rapidly "cures" or hardens the lens. Sales from this segment accounted for
2.3% of the Company's total 1995 sales. Rapid Cast's operating results are
included in the accompanying financial statements.
Network products and services- The Company acquires and/or develops hardware
and software, primarily for interactive data communications networks. In
this regard, the Company operates a communications network known under the
tradename "AutoNETWORK" that services the automotive dismantling industry
in California, Nevada, Arizona, Oregon and Washington. Sales from this segment
accounted for 1.7% of the Company's total 1995 sales.
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NATIONAL TELEPHONE & COMMUNICATIONS, INC. (NTC):
Products - NTC is an inter-exchange carrier and reseller of long distance
telephone services to residential and small business customers throughout the
United States. NTC's primary product is its Dial-1 Telephone Service. Its
other long distance telephone products are 800-Number Services and Calling
Card Services, which include the Flag Card, Sure$aver Card, Sure$aver Gold
card and Call$aver Card.
In order to provide these products, NTC generally contracts to purchase long
distance telephone time from national carriers at wholesale rates based upon
high volume usage. NTC then resells this time to its customers at its own
discounted retail rates which are generally 10% to 60% below AT&T's
published, tariffed MTS rates. NTC's Dial-1 Service is transparent to its
customers once a customer's long distance service has been converted to NTC.
NTC's calling card products operate similarly to the calling card products
offered by the major carriers. NTC's customers pay for their long distance
calling usage either through direct billing from NTC , through billing from
the customer's local exchange carrier ("LEC"), through direct billing by NTC
of the customer's major credit card, or by prepaying for long distance time
in the case of certain NTC calling card products. In certain states, NTC has
an agency agreement with an unaffiliated company which bills customers' local
intrastate calls through the local telephone company. Commencing in the
second quarter of 1996, NTC intends to increase its use of LECs to bill and
collect telephone service accounts receivable. The planned increase in the
use of LECs is expected to increase the amount of time that it takes for NTC
to receive payment on its accounts receivable.
Network marketing program - NTC markets its products on a nationwide basis
through a multi-level, network marketing program of independent sales
representatives. NTC authorizes and trains the independent representatives to
resell its services to residential and small business customers, and allows
the individual representatives to build up their own "downline" sales force of
other independent representatives. NTC currently has in excess of 40,000
independent representatives in its network marketing program. Once an
independent representative has signed up a long distance telephone customer on
one or more of NTC's services/products, the customer becomes an NTC customer.
NTC takes over the servicing and billing of the customer as well as the
collection of monies owed by the customer for the use of the NTC telephone
services/products. NTC pays each independent representative a commission
on the telephone usage monies collected from those retail telephone customers
who are directly signed up by that representative. NTC also pays override
commissions to each independent representative on the monies collected from
those telephone customers signed up by the representative's downline as well
as a bonus percentage of all telephone monies collected by NTC from the retail
telephone customers collectively signed up by all independent representatives,
if certain minimums of retail telephone business are personally achieved by
the representative. In addition, NTC pays sales bonuses to independent
representatives for assisting other representatives to obtain certain minimums
of new retail long distance telephone business. NTC does not pay any monies
to independent representatives simply for recruiting other representatives
into NTC's network marketing program. NTC generally maintains communications
with its independent representatives through (1) NTC's proprietary
communications systems, (2) NTC's internal personnel dedicated to the
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support of the independent representatives, (3) various NTC manuals,
newsletters and other publications that are periodically and continually sent
to the independent representatives, (4) NTC's network of senior independent
representatives, and (5) various training programs offered by NTC and its
senior independent representatives throughout the United States.
NTC believes it is in compliance with all State and Federal regulations
governing multi-level marketing companies. However, to ensure the Company
has objective and knowledgeable outside legal opinion in this area, NTC has
formed a Regulatory Compliance Committee consisting of four former State
Attorneys General that periodically reviews NTC's marketing programs for such
compliance.
Disclosure of Independent Representative Organizations Related to NTC
Executives - In order to eliminate potential conflicts of interest, at the end
of 1992, NTC implemented its current policy that no senior, decision-making
NTC executive or officer may have a downline organization of independent
representatives involved with the selling of NTC's long distance telephone
services and/or marketing programs ("Executive Downlines"). Violation of
this policy subjects such an NTC officer/executive to immediate termination
and forfeiture of all past and future commissions from such disallowed
Executive Downlines. To the best of the Company's knowledge, none of NTC's
senior officers/executives have an Executive Downline, including Ed Jacobs
(President and CEO), Jerry Ballah (Executive Vice President), Richard Marting
(Vice President of Finance and Administration) and William Savage (Vice
President of Operations).
In addition, NTC's current policy requires full disclosure by all senior NTC
officers/executives of any NTC downline organizations headed by an immediate
family member of such senior officer/executive as well as disclosure of the
personal involvement of an immediate family member in the sale of NTC's long
distance telephone services to retail customers ("Immediate Family
Customers/Downlines"). To the best of the Company's knowledge, none of
NTC's senior officers/executives have Immediate Family Customers/Downlines
with the exception of Jerry Ballah. Mr. Ballah has previously disclosed
the existence of Immediate Family Customers/Downlines, at the time each such
customer base and/or downline was being initiated by the specific family
member, for his mother and his two sons. In addition, although not required
by NTC's current policy, Mr. Ballah voluntarily disclosed, at the time
each such customer base and/or downline was being initiated, that certain
members of the immediate family of Mr. Ballah's fiance have Immediate Family
Customers/Downlines. It is also NTC's policy to periodically have the
activities and income of such Immediate Family Customers/Downline reviewed by
an NTC company committee headed by NTC's President and CEO (and from which
the related senior officer/executive is excluded) for the purpose of
determining that all of NTC's policies and procedures are being strictly
followed.
Pager Agreement - In June 1995, NTC entered into additional promotional
agreements with a publicly-traded, personal pager company and a privately-held
Internet access service provider. Under the terms of these agreements, (i)
NTC will use certain merchandise and services offered by these two companies
to enhance NTC's marketing of long distance services, and (ii) NTC will be
compensated by the two companies for each subscriber added to their respective
services and for the development of certain promotional programs.
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Wiltel Contract - In September 1995, NTC entered into a new carrier contract
with Wiltel, Inc. of Tulsa, Oklahoma, a subsidiary of WorldCom, Inc., covering
a potential volume purchase of $600 million of long distance telephone time
over a five year period commencing in November 1995. As in the prior carrier
contract with Wiltel, Inc., NTC commits to purchase the designated volume of
telephone time in accordance with a schedule over the term of the contract.
NTC currently relies on the purchases of another unaffiliated long distance
telephone service provider to meet its volume purchase requirements under the
new contract.
Management Incentive Agreement - On February 6, 1996, the Company entered into
an agreement with NTC pursuant to which it agreed to permit NTC to do a public
underwriting of its (NTC's) common stock in the future. The underwriting
would be implemented if NTC receives a firm commitment from a reputable
regional or national investment banking firm. The Company also agreed to
create three stock option plans for the management, employees and
independent sales representatives of NTC. The exercise price of all options
issued under such plans will be based on the fair market appraisal value of
NTC shares as of the date of the grant of the options. The options will be
granted and become exercisable only if NTC becomes a public reporting company
and its stock is publicly traded. The options will be granted pursuant to a
stock option plan meeting the requirements of Section 16(b)(3) of the
Securities Exchange Act of 1934, as amended, and the plans will be registered
on Form S-8 under the Securities Act of 1933, as amended.
Pursuant to one plan, up to 15% of NTC's outstanding shares, after taking into
account the issuance of all shares pursuant to all three plans and the
underwriting, will be reserved for issuance pursuant to options granted to
current and/or future key independent sales representatives of NTC and will
only be vested conditioned upon NTC's achieving certain specific minimum
revenue levels prior to January 1, 1999. The NTC Board of Directors will
determine the grantees of the stock options under this plan.
Pursuant to the second plan, up to 10% of NTC's outstanding shares, after
taking into account the issuance of all shares pursuant to all three plans
and the underwriting, will be reserved for issuance to two senior
executive officers and a key consultant of NTC. The options issued to the
two senior executive officers will be fully vested on the date of grant
(i.e. the date NTC's stock first becomes publicly traded), while one-third of
the options to be granted to the key consultant will vest immediately upon
grant, and two-thirds of such options will vest in accordance with a
schedule to be determined by NTC's Board of Directors.
Pursuant to the third plan, up to 10% of NTC's outstanding shares, taking into
account the issuance of all shares pursuant to all three plans, will be
reserved for issuance to current and future executive officers, employees and
key consultants of NTC. The options, once granted, will vest one-third based
on the time of service and two-thirds only if NTC achieves a total of $10
million in pre-tax profits in any four consecutive calendar quarters prior to
January 1, 1998. Only 25% of the options eligible for grant under this third
plan may be issued to the senior executive officers who are the beneficiaries
of the second stock option plan. The Board of Directors of NTC will determine
the grantees of the stock options under this plan.
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Upon the creation of the three plans and issuance of options to Ed Jacobs and
Jerry Ballah, Mr. Jacobs will waive his rights to the remaining outstanding
warrants and options to purchase the Company's common stock which are provided
for in Mr. Jacobs' Employment Agreement. See the Company's Proxy Statement for
its 1996 Annual Meeting of Shareholders, filed with the Securities and
Exchange Commission on or about April 30, 1996.
The agreement with NTC also provides that upon NTC becoming a publicly traded
company, it will add four new independent outside directors to the existing
Board, which currently consists of three individuals. Initially, the Company
will have the right to select two of the new independent directors and NTC
will have the right to select the other two. After NTC's initial public
offering, the NTC Board of Directors will select future nominees for the NTC
Board. The independent directors will constitute the Audit and Compensation
Committees of NTC's Board of Directors. Until NTC becomes publicly traded,
the NTC Board will remain as currently constituted and certain transactions
will require the unanimous consent of the NTC Board members, including the
terms of any public offering of NTC's stock. The NTC Board currently consists
of Edward Jacobs, Jerry Ballah and Joel W. Greenberg, the Company's designee.
The Company has agreed to vote its shareholdings in NTC for the NTC
management slate of nominees. The timing and terms of any public offering of
NTC's stock is not known at this time, and there is no assurance regarding
when or if NTC will do its initial public offering.
ACQUISITION OF RAPID CAST, INC. (RCI):
Acquisition - On February 8, 1995, the Company acquired 10,200,000 shares
representing approximately 51% of the outstanding common stock of Rapid Cast,
Inc. ("RCI"),a private corporation headquartered in Louisville, Kentucky, for
$15,000,000 cash paid to RCI, 750,000 shares of the Company's common stock
issued to RCI's current stockholders ("Founding Stockholders"). The
purchase agreement also originally provided that an additional 750,000 shares
of the Company's common stock that could be earned by RCI's Founding
Stockholders based upon the earnings of RCI during its first four full fiscal
quarters. On June 30, 1995 the Company's purchase agreement for RCI was
amended to provide for the immediate issuance of 600,000 shares of the
Company's common stock to the Founding Shareholders in lieu of their
right to potentially earn up to 750,000 shares. See "Acquisition of Rapid
Cast,Inc.- Certain Transactions." As part of the acquisition, the Company
agreed that after the end of the fiscal quarter in which RCI achieves
cumulative pre-tax earnings of $1,250,000, provided such earnings are
achieved during the first four quarters after the acquisition, it will spin
off ("Spin Off") RCI as a public company by registering RCI's shares with
the Securities and Exchange Commission and by providing to the Company's
shareholders a dividend of a minimum of 25% of the common stock of RCI now
owned by the Company. In such event, RCI agreed to take all reasonable
steps in order to permit public trading of the Spin Off shares. RCI did
not achieve the cumulative pre-tax earnings threshold in its first three
fiscal quarters after the acquisition, and the Company is therefore not
obligated to implement the Spin-Off.
RCI has used about $14,000,000 of the funds it received to acquire all of
the outstanding capital stock of Q2100, Inc. ("Q2100"), a company that owns
a proprietary technology for manufacturing single focal , bifocal and
progressive eyeglass lenses ("LenSystem"), as well as 15 fully assembled and
66 partially assembled production line machines which incorporate this
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technology and which are suitable for installation in retail optical stores.
The system is named the FastCast LenSystem. Q2100 was previously owned by
Pearle, Inc.("Pearle"), which entered into a stock purchase agreement on
October 28, 1994 for the sale of 100% of Q2100 to RCI. The purchase price
payable by RCI under the stock purchase agreement with Pearle was
$15,000,000 in cash (less certain expenses), of which $1,000,000 was paid by
RCI on October 28, 1994 as a deposit, and the balance of $14,000,000 was paid
on the closing of the acquisition on February 8, 1995 from the proceeds of its
stock issuance to the Company. As part of the agreement, Pearle has assumed
or discharged all liabilities of Q2100 prior to the acquisition closing.
As part of the agreement, RCI has also agreed that after the acquisition it
will make the technology available to Pearle and its affiliates on a most
favored nation basis. RCI used the remaining $1,000,000 from the issuance of
its stock to the Company to fund its operations.
Financing of Acquisition - In order to pay the purchase price of the stock of
RCI, the Company provided $5,000,000 in cash and financed the balance by a
private placement of securities consisting of 10 Units. Each Unit consisted of
one convertible Note issued by the Company and one Warrant to purchase 100,000
shares of RCI common stock. Each Note was in the principal amount of
$1,000,000 or fraction thereof, matured on January 31, 1996, and accrued
interest at the rate of 8% per annum. Interest was payable quarterly and at
maturity or upon conversion. Purchasers of seven of the Units, who are
affiliates of RCI or shareholders of the Company, waived interest accruals on
the Notes included in their Units.
On June 30, 1995, Units representing $9,350,000 of the Notes were converted at
a rate of $10 per share into 935,000 shares of the Company's common stock. An
additional $150,000 of the notes were converted at the rate of $10 per share
into 15,000 shares of the Company's common stock in July 1995. In January
1995, the remaining Note for $500,000 was repaid in full. The Company is
obligated to register the shares of its common stock issued upon the
conversion of the Notes which were not otherwise sold in 1995 by those
shareholders in transactions under Regulation S. See Item 1-Business, "Rapid
Cast, Inc.", "Nonissuer Sales of Stock Pursuant to Regulation S." The Company
is in the process of registering under the Securities Act of 1933,as
amended, the remaining shares held by the original Noteholders. In addition,
in order to settle potential claims by certain of those shareholders and the
one Noteholder who did not convert his Note into shares, which could have
been asserted because of the Company's failure to register the underlying
shares in 1995, the Company agreed to (i) issue and register 31,000 additional
shares of common stock and to convey a Warrant to purchase 5,000 shares of
RCI common stock to the Noteholder who did not convert his shares, (ii) issue
sufficient additional shares to said prior Noteholder, if necessary, to
ensure that on the effective date of the registration of these shares, the
prior Noteholder has $155,000 worth of the Company's common stock, including
the 31,000 shares, based on the average closing market price of the Company's
stock on the five trading days immediately following the effective date of
the registration statement, and (iii) to issue to the holders of 32,500
shares who did convert their Notes, sufficient additional shares of the
Company's common stock, if necessary, to ensure that they have an aggregate
of $390,000 worth of the Company's stock on the effective date of the
registration statement, based on the average closing market price of the
Company's stock on the five trading days immediately preceding the effective
date of the registration statement. See "Item 3. Legal Proceedings -
Claims By Prior Noteholders."
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The Warrants to purchase shares of RCI common stock are exercisable
commencing with the 35th business day (the "Start Date") on which securities
of RCI are first traded publicly, provided that the Start Date must occur on
or before December 31, 1998. The exercise price of the Warrants will be equal
to 50% of the average of the last reported sales price during the first 30
business days after the Start Date. Securities of RCI will become publicly
traded only if RCI is spun off as a public corporation as anticipated under
the terms of the acquisition, or if RCI in its discretion determines to
consummate a public offering of its securities. The Warrants will expire 180
days after the date, if any, on which they first become exercisable.
Registration Rights - RCI granted to the Company the right to demand
registration at RCI's cost of all of the Company's RCI shares. The Company
may demand this right only after RCI's securities are publicly traded (whether
as a result of the Spin Off or otherwise) and only as to one-third of these
shares in each of 1996, 1997 and 1998 on a cumulative basis. RCI has also
granted to the Company piggyback registration rights with respect to these
shares after RCI's securities are publicly traded.
Right to Designate Directors - The Company has the right to elect two of
RCI's five directors until the Spin Off, and one of RCI's five directors after
the Spin Off. Melvyn Reznick and Joel W. Greenberg are the Company's two
designees on the Board of RCI.
Certain Transactions - The current stockholders of RCI (the "Founding
Stockholders")other than the Company consist, among others, of persons related
to Broad Capital Associates, Inc. (the "Broad Group") who own 3,266,666 shares
of RCI common stock, and Larry Joel, Robert Cohen and persons related to them
(the "CRJ Group") who own 6,533,334 of RCI common stock. The Founding
Stockholders acquired these shares at a purchase price of approximately $.03
per share. The Founding Stockholders and their affiliates as of December 31,
1995 loaned approximately $1,463,334 to RCI, which amounts, together with any
additional loans which are thereafter made by them, will be payable July 31,
1996, together with interest at 7% per annum. RCI may determine to prepay
this indebtedness, whether from the proceeds of the placement of the Units or
otherwise.
As part of the purchase price for the acquisition of 10,200,000 shares of RCI
common stock by the Company, the Company issued 750,000 shares of its common
stock to the Founding Stockholders on February 8, 1995. The Company also
agreed to issue to the Founding Stockholders a maximum of 750,000 additional
shares of the Company's common stock depending on RCI's pre-tax earnings
during the first four full fiscal quarters after the acquisition closing,
which occurred on February 8, 1995. On June 30, 1995, the Company renegotiated
the terms of the Agreement and issued to RCI's Founding Stockholders 600,000
unregistered shares of its common stock in lieu of the maximum of 750,000
shares that were to be issued based upon performance factors. The Company made
this issuance because, in its opinion, it believed that it was likely that RCI
would meet its performance requirements and, hence, attempted to reduce the
potential dilution of the Company's stock by 150,000 shares. Based on RCI's
actual performance during its first three fiscal quarters, no additional
shares would have been issued to the Founding Stockholders.
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The exact number of additional shares of the Company's common stock which
would have been issuable to the Founding Stockholders under the original terms
of the acquisition agreement was to be calculated on the last day of each of
RCI's first and fourth fiscal quarters following the acquisition closing as
follows: (i) for the first quarter, by multiplying $7.5 million by a
fraction, the numerator of which was the net pre-tax earnings generated by RCI
during such first full fiscal quarter, and the denominator of which is $4.5
million, and (ii) for the first four full fiscal quarters, by multiplying
$7.5 million by a fraction, the numerator of which was the aggregate net
pre-tax earnings generated by RCI during such four full fiscal quarters less
the net pre-tax earnings generated by RCI in the first full quarter, and the
denominator of which was $4.5 million. The products determined in (i) and
(ii) above were then to be divided by $12.50 per share to determine the number
of additional shares issuable to the Founding Stockholders, provided, that if
any time during the first four full fiscal quarters after February 8, 1995,
RCI earned more than $5.5 million in net pre-tax earnings, the value of each
additional share for calculation purposes would have been $10.00 rather than
$12.50.
Agreement With Martin Price. On August 31, 1995, RCI entered into an
agreement with Martin Price pursuant to which it issued 250,000 shares of RCI
common stock and paid $150,000 to Mr. Price ($100,000 in cash and $50,000
pursuant to a note) in consideration for the cancellation of a net profit
interest in RCI's business which Mr. Price previously owned. Accordingly,
RCI currently has 20,250,000 shares of common stock issued and outstanding.
RAPID CAST, INC. (RCI):
General. RCI is a Delaware corporation formed in February 1994 which acquired
100% of the outstanding capital stock of Q2100, Inc. ("Q2100") from Pearle,
Inc., an unaffiliated subsidiary of Grand Metropolitan, Ltd., a United Kingdom
conglomerate. Q2100 owns certain domestic and foreign patents and patent
applications relating to a new technology, commonly known as Thick Film
Radiation Cured Polymer Technology (the "Technology"), which enables retail
optical stores and wholesale optical lens manufacturing laboratories to
produce many prescription ophthalmic lenses on site at a cost generally lower
than if they were purchased from third party manufacturers or distributors.
RCI is marketing the Technology under the name Fast Cast LenSystem.
The Optical Marketplace. Nearly 60% of the United States population
(approximately 151 million people) required some form of vision correction in
1992, according to Census International '93: The Optical Industry Fact Book
("Census93"). It is estimated that, by the year 2000, the United States
prescription eyewear population will rise to approximately 164 million people
and that, in the following decade, over 180 million people will use
prescription eyewear products. Census93 reports that, in the approximately
$11.9 billion United States retail optical market in 1992, the average optical
retailer's breakdown of dollar revenue by product category was: (a)
approximately 47% (or nearly $5.6 billion) from the sale of eyeglass lenses
and lens treatments (e.g., the application of scratch-resistant and
ultraviolet coatings), (b) approximately 38% from the sale of eyeglass frames
and sunglasses, and (c) approximately 15% from the sale of contact lenses.
Census93 reports that, out of the approximately 80 million pairs of
prescription eyeglass lenses sold in the United States in 1992, an estimated
55% to 60% were single vision lenses, while an estimated 40% to 45% were
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multifocal lenses (i.e., bifocal, trifocal and cataract lenses). According to
Census93, bifocal lenses currently constitute the substantial majority of
consumer purchases of multifocal lenses, representing an estimated average of
approximately 84% of all multifocal lenses purchased in the years 1987, 1989
and 1991. Multifocal lenses are produced as either "flat-top" or
"progressive" lenses. Progressive lenses are distinguished from flat-top lens
by the absence of visible horizontal lines separating the different corrective
prescription areas. Census93 reports that, by the end of 1992, flat-top
bifocal and trifocal lenses held approximately 79% of the multifocal market,
while approximately 21% of this market consisted of progressive lenses. The
LenSystem is capable of producing single vision, flat-top bifocal and
progressive bifocal lenses. Although no assurance can be given in this
regard, RCI believes that the market for progressive bifocal lenses offers
particularly great opportunities, both because of the potential to convert
persons currently wearing flat-top bifocals to the "no-line" option offered by
progressive lenses, and because the bulk of the baby boomer generation (ages
30 to 49 in 1994) has not yet reached their early 40s, when people typically
first experience the presbyopia that requires correction by bifocals.
Single vision and multifocal prescription eyeglass lenses are currently
manufactured using one of three basic types of materials. According to
Census93, the two conventional materials, glass and hard-resin plastic,
accounted respectively for approximately 13% and 64% of 1993 United States
prescription lens sales, while the newer premium materials such as
polycarbonates, high index plastic and high index glass, accounted for
approximately 23% of such sales.
Within the categories of single vision and multifocal lenses, there are many
types of premium lenses (generally designed to be especially thin, strong, and
light) that the LenSystem currently cannot manufacture: (a) high index plastic
and high index glass lenses, which generally are very thin, lightweight lenses
used to reduce the thickness of very high strength prescription lenses; (b)
polycarbonate lenses, which are made from a material with superior impact
resistance and are typically used for sports and other eye-safety purposes;
and (c) aspheric lenses, which are made to have flatter curves than
conventional spherical lenses, thereby improving visual acuity and the
appearance of the eyes through the lenses. Census93 estimates that aspheric
lenses represented about 1% of 1992 United States sales of prescription
lenses. RCI anticipates that sales of high index lenses will continue to grow
steadily over the next several years.
During the years 1990 through 1992, the United States market of contact lens
wearers remained basically flat, according to Census93, at approximately 25
million users. There can be no assurance, however, that technological
developments, medical advances, changes in consumer tastes or other factors
will not cause the use of contact lenses to grow significantly in the future
at the expense of prescription eyeglass lenses. Census93 reports that,
despite the recent flat rate of overall contact lens use, a Bausch & Lomb
study has found that first-time usage of disposable contact lenses grew at a
compounded annual growth rate of 47% from 1989 through 1992.
The Production and Dispensing of Prescription Eyeglass Lenses. As previously
noted, approximately 77% of all conventional single vision and multifocal
prescription eyeglass lenses are currently manufactured from glass or
hard-resin plastic. According to Census93, during the years 1991 through 1993
hard-resin plastic was used in the manufacturing of approximately 82% of all
prescription lenses made from conventional materials. Although there can be
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no assurance in this regard, RCI anticipates that the use of glass in
manufacturing conventional lenses will decrease over time due to a variety of
factors, including its relatively greater weight and inferior impact
resistance.
After being prescribed for an individual by his or her medical doctor
(ophthalmologist) or optometrist, prescription eyeglass lenses reach the
consumer through three traditional channels: independent dispensers
(consisting of thousands of private sector optometrists, opticians and
ophthalmologists), retail optical chain stores (i.e., retailers having at
least four stores, including so-called "superoptical" stores or "superstores",
mass merchandisers and warehouse membership clubs), and miscellaneous third
party and other dispensers. Census93 estimates that independent dispensers
accounted for approximately 62% of 1992 United States optical sales, retail
optical chain stores accounted for approximately 33% of such sales, and third
party and other dispensers accounted for approximately 5% of such sales.
The substantial majority of glass and hard-resin plastic prescription lenses
purchased in the United States are currently obtained from lens dispensers
(such as independent optometrists, opticians, ophthalmologists and retail
chain stores) who do not manufacture the lenses on-site. They instead obtain
lenses from third party manufacturers and distributors, including hundreds of
large factories and large, mid-sized and small wholesale manufacturing
laboratories. These manufacturers and distributors have invested in the space
and equipment required to grind glass or plastic lenses into a specific
prescription and then to finish (i.e., polish) the lenses in order to provide
clarity. In the case of plastic lenses, these manufacturers additionally
possess the molds and other machinery required in order to form and then
"cure" (i.e., harden) such lenses. Conventional curing processes utilize
heat-driven reactions to harden the plastic. Heat-curing processes are
relatively time-consuming, generally requiring between approximately six and
16 hours, depending upon the specific type of plastic involved.
In most cases, a retail lens dispenser who obtains finished lenses from third
party manufacturers and distributors cannot offer consumers "same day" service
unless that retailer maintains a relatively large, mostly idle and generally
expensive inventory of lens blanks. This inventory generally has consisted
principally of single vision and flat-top bifocal lenses, due to the
historically greater demand for such lenses. Even a retailer who maintains a
very extensive inventory of lens blanks typically must place special orders
for the majority of lenses required to fill more complex prescriptions and for
most premium lenses. Filling any such order generally takes one or more days.
Largely as a result of these limitations in the ability of retail lens
dispensers to provide consumers with same day service for certain lenses, full
service eyeglass lens manufacturing began to move into retail optical outlets
in the form of the so-called "superoptical store". Many of these superstores
are operated by the large retail optical chain stores, such as LensCrafters,
Opti-World, Pearle Express and D&K Optical (of which Dr. Larry Joel, a
shareholder, officer and director of RCI, is Chairman of the Board and a
significant stockholder). A "superoptical store" is generally understood in
the United States optical industry to be a retail store with the on-site
equipment necessary to produce the great majority of finished prescription
lenses in about one hour. The required equipment generally consists of a
surfacing (or grinding) laboratory and a finishing machine. According to
Census93, superoptical stores rarely fall below 1,900 square feet in total
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area. In addition to an investment in equipment and space, a superoptical
store typically requires the maintenance of a largely idle inventory of
semi-finished lens blanks.
The Rapid Cast LenSystem. The LenSystem incorporates a new technology called
Thick Film Radiation Cured Polymer Technology, which uses ultraviolet light
instead of heat to initiate the chemical reaction that hardens the Rapid Cast
Liquid Monomer into a plastic lens. The Technology resulted from a research
program that was initially begun in 1985 by the University of Louisville. In
1988, Dr. Larry Joel and others formed ORGIC, which contracted with the
University of Kentucky to sponsor and continue that research program in return
for the ownership of all resulting patents and discoveries. By 1990, ORGIC
(then majority-owned by Dr. Joel and the predecessor of Q2100) had developed
and tested a new liquid monomer, an ultraviolet curing unit and a lens casting
machine. ORGIC believed that equipment utilizing the Technology could permit
on-site production of prescription eyeglass lenses at a low cost and in a very
short amount of time. ORGIC also believed that, in order to commercialize the
use of such equipment and effectively bring it to the marketplace, financial
and other resources would be required that ORGIC did not possess. In 1991,
ORGIC, with the Technology (together with all related issued patents and
patent applications), was sold to Pearle and subsequently renamed Q2100, Inc.
On February 8, 1995, RCI purchased 100% of Q2100 from Pearle, and the Company
purchased 51% of RCI. See "Item 1. Business - Acquisition of Rapid Cast,
Inc."
Technical Overview of the Rapid Cast LenSystem. The Rapid Cast LenSystem
consists of three primary components: The Rapid Cast Mold and Gasket Library,
the Rapid Cast Liquid Monomer (the "Monomer"), and the Rapid Cast Ultraviolet
Curing Unit (the "Curing Unit"). The Rapid Cast Mold and Gasket Library is
used to create the actual mold assembly from which a lens will be made. Once
the type of lens (i.e., single vision, flat-top bifocal or progressive
bifocal) and prescription to be produced are known, a front mold and a back
mold are selected from an easy to read wall chart. A gasket is used to hold
the front and back molds in place, creating a mold assembly consisting of a
hollow cavity. This cavity is then filled with the Rapid Cast Liquid Monomer.
The Rapid Cast Liquid Monomer is a proprietary monomer that is injected in
liquid form into the mold assembly using a standard squeeze bottle. This
Monomer is a "thick film" monomer, meaning that its thickness is best measured
in parts of centimeters (as opposed to thin film monomers, which are measured
in parts of millimeters). The Rapid Cast Liquid Monomer is chemically inert
and, because it is cured by ultraviolet light, does not require the
addition of a separate chemical initiator for the hardening process. As a
result of its chemical stability, the Rapid Cast Liquid Monomer has a
shelf-life of many years and does not require special shipping and storage
precautions. These advantages are not generally realized by conventional lens
manufacturing processes which use hard-resin monomers to produce plastic
lenses. These conventional monomers (such as the CR-39 Monomer, which has
long been the substance most commonly used in manufacturing plastic lenses)
require the addition of chemical initiators prior to being cured, and those
initiators are in some cases flammable or explosive prior to being mixed
with the monomer. Temperature-controlled shipping and storage arrangements
must accordingly be made, and cold storage facilities must be utilized even
after the monomer and initiator are mixed, since the resulting substance
hardens and becomes useless when exposed for an extended period to
temperatures above approximately 25 degrees fahrenheit.
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The Curing Unit controls the chemical reaction that occurs when the Rapid Cast
Liquid Monomer is exposed to ultraviolet light. It monitors the exact
temperature of the lens during this reaction, utilizing multiple cold air jets
to control the temperature of each sector of a lens. The Curing Unit also
continuously monitors the energy output of the ultraviolet light in order to
maintain a constant output, even with fluctuations in electrical current. RCI
currently intends to utilize two versions of the Curing Unit, which differ
only in the quantity of the lenses that can be produced at one time. The
Premier Curing Unit will cure two pairs of lenses within approximately 30
minutes. The smaller Deluxe Curing Unit will cure one pair of lenses in the
same amount of time. In addition, the front mold assembly may be coated with
a scratch resistant coating and then cured with high intensity UV light onto
the mold surface. This coating then adheres to the lens during the curing
process.
A lens produced by the LenSystem can be subjected to the application of
various additional treatments (such as scratch resistant, anti-reflective and
ultraviolet coatings) using the same materials and process now employed to
apply such coatings to conventional plastic lenses. Scratch resistant and
ultraviolet coatings can generally be applied on site in under ten minutes,
whereas the application of an anti-reflective coating requires that the lens
be sent out to a third party service company. If inadequacies appear in the
LenSystem during day to day operation, there is no assurance that any such
inadequacies can be corrected at commercially acceptable cost, or at all.
Marketing and Pricing Strategy. RCI expects that initially the bulk of RCI's
revenues will be derived from sales of equipment and that as the installed
base of equipment stabilizes, an increasing share of revenues will be derived
from Monomer sales. RCI is initially seeking to market the LenSystem
principally to operators of retail optical stores and small to mid-sized
wholesale lens manufacturing laboratories, both inside and outside the United
States. Currently the sale price for a single LenSystem with one set of molds
is approximately $37,000 for a smaller unit and $43,000 for a larger unit.
Operators may be able to lease RCI equipment from third party lessors for
approximately $750 to $950 per month at current interest rates over a 60 month
period. RCI expects that each purchaser or lessee of a LenSystem will at
least initially use RCI's Rapid Cast Liquid Monomer.
RCI does not believe that, in the short term, marketing of the LenSystem will
require the purchase of significant print, television, radio or other
advertising. RCI instead anticipates that the LenSystem will receive a large
amount of nonpaid publicity within trade magazines that regularly report
on technological changes in the optical industry. RCI may nonetheless utilize
limited print advertising in optical industry trade magazines for the purpose
of highlighting the LenSystem's perceived advantages.
RCI currently intends to focus its marketing resources in the short term on
the introduction and demonstration of the LenSystem at one or more optical
industry conventions and trade shows. RCI believes that such conventions will
provide an attractive forum for exhibiting the LenSystem's limited space
requirements, ease of use and high quality output. By the end of the third
quarter of 1995, RCI had also hired four employees to market the LenSystem,
primarily in the United States. RCI pays these employees salaries and
commissions, and reimburses them for expenses in connection with their
marketing services.
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Manufacturing Strategy. RCI currently does not have the facilities or the
experience to manufacture the components of the LenSystem and has no plans to
develop its own manufacturing capabilities. RCI currently intends to have
such components manufactured through subcontractors.
Research and Development Strategy. RCI anticipates that, if and to the extent
funds become available from future revenues (if any) or other sources, its
research and development efforts will emphasize the further development and
enhancement of the Technology and the LenSystem, generally in response to
potential future changes in technologies, customer preferences and optical
industry standards. Should RCI be unable to anticipate these changes (whether
because of a lack of adequate research and development funding or otherwise)
or fail to improve the LenSystem or develop new technologies in response to
these changes, RCI's ability to grow and become profitable could be materially
adversely affected.
More specifically, RCI believes that, in addition to single vision, flat-top
bifocal and progressive bifocal lenses, the Technology could be enhanced to
enable it to produce other existing types of prescription lenses as well as
new lens designs that may be developed in the future. If and to the extent
funds become available, RCI accordingly expects that it might seek to improve
the LenSystem so as to broaden the range of low cost, high quality lenses it
can produce. There can be no assurance, however, that RCI will in fact ever
undertake to develop any such improvements or that any effort to do so would
be successful or commercially viable. RCI does not currently anticipate that
it will conduct future research and development relating to technologies or
products that are not related to the on-site production of prescription
eyeglass lenses. There can be no assurance that, if conducted in the
future, any of RCI's research and development efforts will be successful, be
completed in a timely manner, improve RCI's profitability, or enable it to
respond effectively to technological or medical advances or new product
developments by competitors.
Maintenance, Warranty and Insurance. Initial sales of LenSystems are
supported by sales and technical representatives who provide installation and
training services. RCI provides its customers with a complete operations
manual and training videos. RCI currently offers the LenSystem with a one
year warranty for parts and labor. RCI currently maintains product liability
insurance which provides coverage of $6,000,000 per occurrence and $7,000,000
in the aggregate. There can be no assurance that the coverage provided
by those policies is sufficient to protect RCI against liability. RCI's
inability or failure to protect itself adequately against such liabilities
could have a material adverse effect upon its prospects, financial condition
and results of operations.
Competition. The prescription ophthalmic lens industry is intensely
competitive. Numerous manufacturers and distributors currently supply United
States lens dispensers, including such dispensers as retail optical stores and
small to mid-sized wholesale optical lens manufacturing laboratories. These
are the customers to whom RCI initially intends to market the LenSystem. Many
of these manufacturers and distributors are currently capable of supplying
lenses to a lens dispenser within 24 hours after receipt of the dispenser's
order, and, in many cases they can do so at prices competitive with the cost
of producing such lenses utilizing the LenSystem. Innotech Corporation is one
competitor of RCI which uses plastic to produce lenses. RCI believes that
the LenSystem has superior quality (i.e. better durability) and equivalent
pricing to other manufacturers of single vision lenses, and both superior
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quality and lower pricing with respect to flat-top bifocal and progressive
bifocal lenses.
If RCI is successful in marketing the LenSystem, it anticipates that other
companies or entities will attempt to develop competitive lens casting systems
capable of being placed in retail optical store locations. Potential
competitors may include companies that own large optical lens manufacturing
factories, owners of chains of retail optical stores, large wholesale optical
lens manufacturing laboratories, mass merchandisers and warehouse membership
clubs that have entered or may enter the retail optical industry, companies in
the optical instrument business, companies in the contact lens industry,
pharmaceutical and chemical companies that have entered or may enter the
retail optical industry or the optical lens manufacturing industry, and
universities and public research organizations. Many of these competitors have
substantially greater financial, technological, research, product development,
manufacturing, sales, marketing and human resources than RCI.
There can be no assurance that one or more of these competitors will not
develop a system for on-site production of prescription ophthalmic lenses
which is competitive with or superior to the LenSystem, or that RCI will have
the technological, marketing or financial resources or flexibility to respond
to any such development. The development of such a system would, in all
likelihood, exert adverse price pressures on the LenSystem and could render it
obsolete and unmarketable.
Patents and Proprietary Rights. In February 1995 RCI acquired all of the
capital stock of Q2100 and thus all of Q2100's issued patents and patent
applications that relate to the Technology. RCI is not aware that any party,in
the United States or elsewhere, has challenged the validity or enforceability
of the issued patents relating to the Technology, other than the patent
dispute with Ronald D. Blum O.D. See "Item 3. Legal Proceedings - Patent
Infringement Lawsuit."
The status of pending patent applications involves complex legal and factual
questions, and the scope and breadth of claims to be allowed is uncertain.
Accordingly, there can be no assurance that pending patent applications, or
patent applications that may be filed by RCI in the future, will result in
patents being issued, or that any patents that may be issued in the future
will afford protection against competitors with similar technology. Patent
applications in the United States are maintained in secrecy until patents are
issued and, since publication of discoveries in the scientific or patent
literature tends to lag behind actual discoveries by several months or even
years, there can be no assurance with respect to pending patent applications
that the covered inventions were not first created by other parties, or that
such applications were the first to be filed on such inventions. In addition,
patents relating to the Technology that have been or may be issued in some
foreign countries may not afford the same protection to RCI as is provided
under the patent laws of the United States.
No assurance can be given that the issued patents relating to the Technology
will afford protection against competitors with similar technology, or that
any of such patents will not be infringed, designed around by others or
invalidated. Applications of the Technology (or future technologies RCI may
develop) may infringe patents or proprietary rights of others. If any
licenses are found to be required in order for RCI to use the Technology or
other processes or products, such licenses may not be available on acceptable
terms, if at all. Furthermore, there can be no assurance that challenges will
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not be instituted against the validity or enforceability of any patent owned
by RCI or, if instituted, that such challenges will not be successful. The
cost of litigation to uphold the validity and prevent infringement of a patent
can be substantial and could have a material adverse effect upon RCI's
financial condition and results of operations.
In addition to potential patent protection, RCI will rely upon the laws of
unfair competition and trade secrets to protect its proprietary rights. RCI
currently intends to seek to protect its trade secrets and other proprietary
information in part by entering into appropriate confidentiality and
nondisclosure agreements with its future employees, consultants, suppliers,
joint venturers, subcontractors, licensees, scientific collaborators,
sponsored researchers and others. These agreements will generally provide
that all confidential information developed by or made known to the other
party during the course of the relationship with RCI is to be kept
confidential and not disclosed to third parties, except in certain
circumstances. In the case of employees, consultants, scientific
collaborators and sponsored researchers, the agreements will generally provide
that all inventions conceived by them relating to the business of RCI will be
the exclusive property of RCI. There can be no assurance, however, that any
such agreements will provide meaningful protection for RCI's trade secrets in
the event of unauthorized use or disclosure of such information.
Although RCI intends to protect its rights vigorously, there can be no
assurance that trade secrets will be established or maintained, that secrecy,
confidentiality or nondisclosure agreements will be honored, or that others
will not independently develop similar or superior technologies. To the
extent that employees, consultants or other third parties (such as prospective
joint venturers or subcontractors) apply technological information to RCI's
projects which has been independently developed by them or others, disputes
may arise as to the proprietary rights to such information, which disputes may
not be resolved in favor of RCI.
RCI was advised by the previous owner of Q2100 that it believes that Q2100
owns the trademark "Fast Cast." RCI may use the Fast Cast mark, "OMB-91,
" "Rapidcast," or "LenSystem." None of these marks have been federally
registered. A prior user of one of these marks could successfully challenge
RCI's ownership or use of the mark.
Governmental Regulation. It is the opinion of special counsel to RCI that the
lenses produced by the LenSystem are medical "devices" within the meaning of
the Federal Food, Drug and Cosmetic Act (the "Food and Drug Act"), but that
the lenses may be marketed without pre-market notification, review, approval
or clearance by the Federal Food and Drug Administration ("FDA"). Other
requirements, principally those concerning impact resistance, good
manufacturing practices, labeling and reporting of certain alleged adverse
effects will apply. Although the FDA may disagree, such counsel is also of
the opinion that the LenSystem is itself not a "medical device" under the Food
and Drug Act. However, certain state and local governmental authorities (such
as the State of California) also regulate medical device manufacturers.
Depending upon where LenSystem equipment is manufactured, RCI may be subject
to such additional regulations. Although there can be no assurance in this
regard, RCI does not anticipate that compliance with such governmental
regulation will have an adverse effect upon its business.
Acquisition of LabTech, Inc. - In September 1995, RCI acquired the assets of
LabTech, Inc. for $75,000 in cash and a three year interest bearing note for
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$50,000, and a royalty on future sales using LabTech technology. The $50,000
note was paid in full in December, 1995. The LabTech assets include
proprietary technology which accelerates the photochromatic process of tinting
lenses in response to changes in light. RCI intends to incorporate this
technology into its lens and monomer manufacturing system.
Nonissuer Sales of Stock Pursuant to Regulation S - Shareholders of the
Company who had received shares of the Company's common stock in private
placements made in connection with the Company's acquisition and financing of
a controlling interest in Rapid Cast, Inc. (i.e. purchasers of convertible
notes and the founding shareholders of Rapid Cast, Inc.) sold a substantial
portion of such shares in offshore sales pursuant to Rule 904 of Regulation S
of the Securities Act of 1933, as amended. The Company estimates that
approximately 1,650,000 of such shares were sold pursuant to Rule 904 of
Regulations S. The Company's obligation to register those shares with the
Securities and Exchange Commission under the terms and conditions of the
convertible notes and purchase agreement for the controlling interest in Rapid
Cast, Inc. terminated when the shares were sold to the offshore buyers. See
Item 1. Business - "Acquisition of Rapid Cast, Inc." The Company did
not sell any shares pursuant to Regulation S.
AGREEMENT WITH PRICE INTERNATIONAL, INC.:
On October 27, 1994, the Company entered into an exclusive agreement with
Price International, Inc. ("PRI") of Boca Raton, FL, to provide production,
management and marketing services for sports-oriented private label and
collectible telephone calling cards. PRI's parent corporation, Price
International Ltd. of Toronto, Ontario, Canada has a license with the National
Hockey League Players' Association (NHLPA) to provide telephone calling cards
of NHLPA players. The Company has already produced and is marketing the first
edition of cards under the agreement and is actively working on additional
editions. Under the terms of the agreement, PRI has received a warrant that
expires on December 31,1997 to purchase 100,000 shares of the Company's common
stock at $11.25 per share under the following terms: (i) 25,000 shares were
vested on the day the agreement was effective, and (ii) 75,000 shares can be
vested based upon a performance requirement in which one share will be vested
for every $10 in pre-tax profits earned by the Company from products issued
under the agreement during any continuous four audited quarterly periods,
up to a maximum of 75,000 shares.
In May 1995, PRI and the company entered into another agreement pursuant to
which PRI exercised 25,000 warrants at $11.25 per share before their
expiration date at the request of the Company and, for the early exercise
and other considerations, was vested to exercise the remaining 75,000 warrants
at $11.25 per share. The Company agreed to register the 75,000 shares
underlying the warrants in a registration statement with the Securities
and Exchange Commission that was anticipated to be filed by the Company in
1995. As part of its agreement with the Company, PRI agreed to exercise an
additional 25,000 warrants within 30 days of the stock being registered,
provided that the price of the stock was at $13 or higher. PRI also agreed to
extend the license period with the NHLPA at PRI's expense until the end of
June 1996 and also agreed to allow the joint venture to use the trade name
Parkhurst in association with the NHLPA phone cards. PRI has the right to
use the name Parkhurst, which is a leading manufacturer of trading cards in
the hockey market.
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In December 1995, the Company entered into discussions with PRI to voluntarily
terminate the entire agreement due to lower sales than anticipated. The
Company does not believe that the agreement with PRI has been profitable. The
Company is also in discussions with PRI associated with the remaining 75,000
warrants that were not registered in 1995 as agreed upon by the Company.
NETWORK SERVICES:
The Company's major network service is the Auto Dismantler Network (known
under the tradename "AutoNETWORK") that currently links several hundred
licensed automobile dismantlers in California, Nevada, Arizona, Utah, Oregon
and Washington. AutoNETWORK is a monthly subscription service that auto
dismantlers utilize to buy, sell and trade used parts that have been salvaged
from automobiles damaged in traffic collisions.
The Company evaluates on a continual basis other applications that could use
the Company's broadcast and point-to-point business communications
technologies.
AutoNETWORK allows automobile dismantlers to buy, sell and trade used
automobile parts. By entering a parts request into a personal computer, the
request is transmitted to the communications message switching system, which
in turn broadcasts the request within seconds to every dismantler on the
network or to a selected local or regional subgroup of dismantlers. Those
dismantlers who have the requested part in stock and wish to sell it then
transmit private messages and enter into private negotiations to sell the
part. Generally, a dismantler using AutoNETWORK can locate a part, if
available, within minutes of entering his request. The majority of
dismantlers on the network generate substantially increased parts sales per
month using the network.
During September 1989, the Company agreed to a joint venture with Dismantlers
Exchange, a privately-owned, Fairfield, California-based operator of voice
telephone hotlines used by more than 200 auto dismantlers to locate auto parts
throughout Central and Northern California, Oregon and Washington. Under the
joint venture agreement, Dismantlers Exchange markets its own version of the
Company's computerized parts locator network in its marketing area under the
tradename "DX PC Network". Although both companies operate their networks
separately, customers of each network are able to receive appropriate parts
requests and send private messages to each other. Dismantlers Exchange also
operates a central clearinghouse so that customers of either network can
search for parts on each network as required.
In 1996, the Company intends to invest approximately $30,000 into the
AutoNETWORK business to enhance the services provided to the automobile
dismantlers in the network.
EMPLOYEES, OFFICERS AND DIRECTORS:
Employees - As of March 22, 1996, the Company, including its subsidiaries, NTC
and RCI, employed 267 full-time people, consisting of 32 general and
administrative, 48 marketing and sales, and 187 operations and customer
service personnel.
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None of the Company's employees are subject to a collective bargaining
agreement, and the Company has not experienced any slow-downs, strikes or work
stoppages due to labor difficulties. The Company considers its employee
relations to be satisfactory.
Officers - The success of the Company is heavily dependent on the Company's
President and Chief Executive Officer, Melvyn Reznick, and the President of the
Company's NTC subsidiary, Edward R. Jacobs.
The Company has a three-year employment contract with Mr. Jacobs that expires
on July 25, 1997. Should Mr. Jacobs become unavailable or incapable of
performing his duties and functions, the Company could suffer material adverse
consequences. There can be no assurance that the Company would be able to
attract a competent replacement on a timely basis should the Company find it
necessary to replace Mr. Jacobs.
On November 30, 1995, the Company entered into a Severance Agreement with Sam
D. Schwartz, the prior Chief Executive Officer of the Company, pursuant to
which Mr. Schwartz resigned as an officer and director of the Company.
Pursuant to the Severance Agreement, the Company agreed to pay Mr. Schwartz
severance compensation of $20,000 per month for a twelve month period, and to
indemnify him to the extent generally available to officers and directors of
companies under California law. Pursuant to the Severance Agreement, the
Company currently is reviewing the tender of short-swing profits made
by Mr. Schwartz to the Company on August 18, 1995 and September 1, 1995
pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended.
The amount of short-swing profits and the value of the stock options
tendered by Mr. Schwartz may be recalculated based on the Company's review
procedures. See "Item 3. Legal Proceedings - Section 16(b) Lawsuit" and
Note 5 - "Short Swing Profits" in the "Notes to Consolidated Financial
Statements."
On November 30, 1995, the Company entered into a two year Employment Agreement
with Melvyn Reznick pursuant to which Mr. Reznick became the President and a
director of the Company. Mr. Reznick is also a director of RCI. Pursuant to
the Employment Agreement, Mr. Reznick is paid an annual salary of $175,000 and
has been granted stock options to purchase 300,000 shares of the Company's
common stock at an exercise price of $4.87 per share for a period of five
years from the date of vesting. The stock options vest according to the
following schedule: 25,000 options on February 28, 1996, 25,000 on May 31,
1996, 25,000 on August 31, 1996, 25,000 on November 30, 1996, 100,000 upon RCI
earning cumulative net profits in four or less consecutive fiscal quarters of
$1.5 million before taxes and before the Company's acquisition amortization
relating to RCI, and 100,000 upon RCI earning cumulative net profits in four
or less consecutive fiscal quarters of $2 million before taxes and before the
Company's acquisition amortization relating to RCI. The vesting of the
200,000 options which are based on the financial performance of RCI may
accelerate upon a sale, spin-off or similar transaction relating to RCI. The
Company has agreed to indemnify Mr. Reznick to the extent that indemnification
of officers and directors is permitted under California law.
Reconstitution of Board of Directors - On October 26, 1995, the NASDAQ
Listing Qualification Committee determined that it was inadvisable to continue
the Company's listing on the Small Capital Market, but also advised that the
termination was delayed for a period of 45 days pending a review by the NASDAQ
22
<PAGE>
Hearing Review Committee. The Board of Directors of Incomnet requested a
reconsideration by the Qualifications Committee of its determination and
immediately took action to address the concerns raised by the Qualifications
Committee as follows:
(a) On November 15, 1995, the Board reconstituted itself with several
changes. Rita L. Schwartz and Stephen A. Caswell resigned from the Board and
Sam D. Schwartz resigned as Chairman of the Board. Melvyn Reznick, Nancy
Zivitz and Albert Milstein were appointed to the Board and Joel W. Greenberg
was named Chairman of the Board.
(b) On November 15, 1995, the Board of Directors established a policy
that all Board members and senior officers must receive permission before
purchasing stock in the Company. The Board established a compliance committee
to 1) review requests of senior officers to buy stock in the Company, 2)
review contracts with outside consultants and 3) set up procedures for
communications with the general public.
(c) On November 30, 1995, Sam D. Schwartz resigned as President and
Chief Executive Officer of Incomnet and Melvyn Reznick was appointed as
President and Chief Executive Officer.
In December 1995, the Company was notified by the NASDAQ Listing Qualification
Committee that after further consideration, the steps taken by the Company
were satisfactory and that the Company's stock would remain listed on the
NASDAQ Small Capital Market.
ITEM 2. PROPERTIES
The Company does not own any real estate. The Company leases approximately
6,224 square feet of office facilities at 21031 Ventura Boulevard, Suite 1100,
Woodland Hills, California 91364. The Company was obligated to make lease
payments at the rate of $8,215 per month through April 1995, and at the rate
of $8,713 per month from May 1995 through July 1998.
The Company's subsidiary, NTC, currently occupies 70,281 square feet of office
space at three sites in Irvine, California which are covered by several lease
agreements. Two of these leases are short-term agreements for satellite
facilities which will terminate during 1996. NTC is presently nearing
completion of negotiations to extend the lease on its headquarters buildings
at 2801 Main Street., Irvine, California through June, 2004. Currently, lease
payments for the three sites total $59,577 per month. According to the terms
of existing leases and the proposed lease extension, NTC would be obligated to
pay monthly lease payments averaging $48,912 during 1996, and $49,269 during
1997, with subsequent monthly lease payments increasing by $1,000 to $2,000
each year, reaching average lease payments of $63,957 during 2004.
The Company's subsidiary , Rapid Cast , has entered into a lease on
approximately 12,250 square feet of office research and development space
for its facilities in Louisville, Kentucky , expiring on May 30, 2000. RCI is
obligated to make lease payments at the rate of $8,167 per month through
December 31, 1997, $8,322 per month in 1998, and $8,433 per month from January
1999 through May 2000. RCI also leases approximately 1,700 square feet of
23
<PAGE>
office space in East Rockaway, New York, from an affiliated party on a
month-to-month basis for $2,000 per month.
ITEM 3. LEGAL PROCEEDINGS
SECURITIES AND EXCHANGE COMMISSION INVESTIGATION:
On August 9, 1994, the Company was notified by the Pacific Regional Office of
the Securities and Exchange Commission that the Commission had initiated an
informal investigation of the Company and its subsidiary, NTC. The inquiry
is fact-finding in nature. In September 1994, the order was changed to a
"formal order of private non-public investigation." The Commission stated
in its correspondence to the Company that the investigation "should not
be construed as an adverse reflection on any person, entity or security, or
as an indication by the Commission or its staff that any violation of law has
occurred." The Company believes that the investigation was prompted by
erroneous reports in the press in June 1994 that the Company's NTC subsidiary
was engaged in unethical business practices associated with its marketing
program. In August 1994,the Company voluntarily and promptly supplied copious
and substantial copies of its books and records to the Commission, and the
Company's present and prior independent certified public accounting firms
submitted their working papers. The Commission has taken investigative
testimony from several current and former officers and directors of the
Company and NTC. The Company has responded promptly to all requests for
information from the Commission.
The Company believes that it has provided substantial documentation to the
Commission that verifies the propriety of its business operations and believes
that the ultimate result of the fact-finding investigation will not have a
material adverse effect on the Company's financial condition or results of
operations.
CLASS ACTION AND RELATED LAWSUITS:
On October 17, 1995, the Company was served with an amended complaint in the
class action lawsuit entitled Sandra Gayles; Thomas Comiskey, as Trustee FBO
Thomas Comiskey, IRA; Charles Kowal; Arthur Kalter; Matthew G. Hyde; Arthur
Wirth; and Isabel Sperber, vs. Sam D. Schwartz and Incomnet, Inc., Case No.
CV95-0399 AWT (BQRx), filed in the United States District Court for the
Central District of California, Western Division, which was originally filed
in January 1995. The amended complaint retains the claim alleging that the
Company violated Sections (10)b and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 promulgated under Section 10(b) of the
Exchange Act, because it did not disclose and falsely denied the existence
of the non-public investigation of the Company commenced by the Securities and
Exchange Commission in August 1994. The complaint adds claims that the
Company and its former Chairman, Sam D. Schwartz, violated Sections 10, 16(a),
20(a) and 23(a) of the Exchange Act, and Section 25400 of the California
Corporations Code, because they did not disclose until August 1995 purchases
and sales of the Company's stock made in the open market by an affiliate of
Mr. Schwartz between September 1994 and August 1995. The amended complaint
seeks (I) certification of the class, (ii) compensatory damages, (iii)
damages pursuant to Section 25500 of the California Corporations Code, (iv)
interest and attorneys' fees and costs, and (v) other extraordinary,
equitable and injunctive relief as may be appropriate. The Company believes
24
<PAGE>
that the prior President's purchases and sales were made in substantial
compliance with Rule 10b-18 promulgated under Section 10(b) of the Exchange
Act. On January 11, 1996 the case was certified as a class action pursuant
to the parties' stipulation. The Company has answered the complaint and the
lawsuit is currently in the discovery phase.
In October 1995, the Company was served with a civil lawsuit entitled Herbert
M. Schwartz et al. V. Incomnet, Inc. Sam D. Schwartz and Kaliber Management
Corporation, CV 96-9776 LGB (SHX), now pending in the United States District
Court, Central District of California. The case was originally filed in the
Northern District of Georgia but the Company successfully moved to transfer it
to the Central District of California, the situs of the class action. In
February 1996, the Company was served with an additional lawsuit entitled
Brent Abraham, et al, v. Incomnet, Inc., Sam D. Schwartz and Kaliber
Management Corporation, Civil Action No. 1-96-CV-0051-CC pending in the
United States District Court, Northern District of Georgia.
These two lawsuits were filed against the Company, its former Chairman and
his affiliate by current and prior shareholders of the Company and both allege
claims under federal and state law pertaining to misrepresentations, omissions
to disclose material facts and undisclosed insider trading which adversely
affected the market price for the Company's securities. The complaints
allege that the plaintiffs suffered losses in the market value of their stock
as a result of the alleged violations. The company's motion to strike two
of the plaintiffs claims is pending in the Herbert Schwartz case. The
Company is also seeking to have the Abrahm case transferred to the same
California court and consolidated with the Herbert Schwartz case which is in
the initial stages of discovery. The Company intends to vigorously defend
against these lawsuits.
SECTION 16(B) LAWSUIT:
In January 1996, the Company was served with a derivative shareholders lawsuit
entitled Richard Morales vs. Incomnet, Inc. and Sam D. Schwartz, 96 Civil
0225 in the United States District Court for the Southern District of New
York, alleging violations of Section 16(b) of the Securities Exchange Act of
1934, as amended, and demanding that the Company assert claims against Mr.
Schwartz for the payment of short-swing profits plus interest. Mr. Schwartz
has retained separate counsel for this action. Plaintiff's Fourth Amended
Complaints alleges short-swing profits to be approximately $2,128,000. The
Company's latest calculations indicate short-swing profits of approximately
$2,074,000. The Company is currently reviewing the plaintiff's calculation
to determine the reason for the difference, and has forwarded the information
to Mr. Schwartz's counsel. The plaintiff also asserts that the 250,000 stock
options tendered by Mr. Schwartz on August 20, 1995 and September 1, 1995 as
payment of the short-swing profits should be accorded no value because of
alleged manipulative and undisclosed trading in the Company's stock by Mr.
Schwartz and his affiliate. The parties have not yet agreed on the value of
the tendered stock options. The Company's time to respond to the complaint
has been extended until early April 1996 while settlement discussions
proceed. Mr. Schwartz has not yet answered the complaint. The Company
intends to attempt to settle this action and to collect the unpaid amount
of the short-swing profits plus interest from Mr. Schwartz. There is no
assurance regarding whether a settlement will be reached, whether the
short-swing profits plus interest will be collected, the timing of a
settlement or collection, or the amount of legal costs which may be incurred
in connection with the lawsuit. See "Item 1. Employees - Severance Agreement
with Sam D. Schwartz."
25
<PAGE>
PATENT INFRINGEMENT LAWSUIT:
In July 1995 Rapid Cast, Inc. was served with a lawsuit entitled Ronald D.
Blum, O.D. vs. Rapid Cast, Inc., Case No. 95-CV5113, filed in the United
States District Court in the Southern District of New York. The complaint
alleges that Rapid Cast, Inc. has infringed on the plaintiff's patent for
curing plastic lenses by virtue of employing its technology in the FastCastTM
LenSystem. On July 28, 1995, Rapid Cast, Inc. filed an Answer and
Counterclaim for Declaratory Judgment denying the plaintiff's allegations,
asserting that the FastCastTM LenSystem does not infringe on the plaintiff's
patent, alleging that claims in the plaintiff's patent are invalid and
unenforceable, and requesting that plaintiff be enjoined from threatening or
commencing any litigation against Rapid Cast, Inc. or any of it suppliers,
customers or prospective customers. The litigation is presently in the
discovery phase. The parties are also actively engaged in settlement
discussions. There is no assurance that a final settlement agreement will be
made.
LEGAL ACTION AGAINST PRIOR REPRESENTATIVES:
On July 28, 1994, NTC filed a lawsuit against six prior independent marketing
representatives who terminated their relationship with NTC on March 31, 1994.
The lawsuit alleges that the defendants breached their agreements with NTC
after terminating their representative status by (i) soliciting NTC's
customers to leave NTC and sign up with a competitor, (ii) soliciting NTC's
other independent marketing representatives to leave NTC and work for a
competitor, (iii) misappropriating and failing to return the NTC customer and
independent sales representative lists, (iv) disclosing NTC's customers,
representatives and other trade secrets to a competitor and (v) willfully and
maliciously conspiring to injure NTC's business in order to improve their own
business. The causes of action against the defendants are breach of contract,
misappropriation of trade secrets and intentional interference with NTC's
economic relationships. NTC sought injunctive relief and is seeking monetary
damages of at least $500,000, as well as punitive damages in an unspecified
amount. On August 31, 1994, the court awarded NTC a temporary injunction
against the defendants, enjoining them from disclosing or utilizing any of
NTC's trade secrets, including its list of customers and independent sales
representatives. A permanent injunction was subsequently denied by the court
on the basis that NTC had failed to demonstrate irreparable harm. All of the
defendants were located in Northern California. The Company believes that as a
result of the defendants' wrongful actions, NTC lost independent marketing
representatives in Northern California and retail customers. While these
actions slowed the growth rate of NTC's customers and marketing
representatives in the Spring of 1994, growth is continuing. The rate at which
NTC is signing new representatives, especially from other parts of the United
States, is also increasing, which may result in an increased rate of growth in
the customer base in the future. On August 30, 1994, the defendants filed a
cross-complaint against NTC and the Company, claiming that NTC failed to meet
its contractual obligations to the defendants and that actions taken by the
defendants as a result were proper and legal. The cross-complaints are
seeking compensatory and special damages, along with general and punitive
damages. Management cannot predict the ultimate resolution of the lawsuit or
its impact on the Company at this time.
26
<PAGE>
CLAIMS BY PRIOR NOTEHOLDERS:
In January 1996 a civil action was filed against the Company and Sam D.
Schwartz in the United States District Court for the Eastern District of New
York, entitled Jules Nordlicht vs. Incomnet, Inc. and Sam D. Schwartz, Case
No. CV 95-5134, alleging breach of contract and material misrepresentations
and nondisclosures in connection with the issuance and conversion of
promissory notes by the Company in a private placement. The complaint sought
damages of $750,000. In early February 1996 the Company entered into a
settlement agreement with Mr. Nordlicht pursuant to which the Company agreed
to issue to Mr. Nordlicht and register 31,000 shares of the Company's common
stock, repay the outstanding balance of his note, and issue him 5,000
additional warrants to purchase shares of Rapid Cast, Inc. (if and when it
goes public) which the Company had received pursuant to the redemption of
another convertible promissory note previously issued by the Company.
Pursuant to the settlement, the Company is obligated to file the registration
statement by May 12, 1996 or it is required to pay a $100,000 penalty to Mr.
Nordlicht. In addition, the Company may be obligated to issue additional
shares to Mr. Nordlicht if, during the five trading days immediately following
the effective date of the registration statement, the average last sale price
of the Company's common stock on the NASDAQ Small Capital Market is less than
$5.00 per share. Accordingly, on the effective date of the registration
statement, Mr. Nordlicht is entitled to $155,000 worth of Incomnet, Inc.
stock, with a minimum of 31,000 shares which have already been issued to him.
The settlement agreement has been filed with the court and the case has been
dismissed with prejudice, subject to compliance with the settlement agreement.
Claims similar to Mr. Nordlicht's could be asserted against the Company by
other holders of shares acquired upon the conversion of privately placed 8%
convertible notes which were issued in February 1995 and converted into shares
by the holders in July 1995. The Company has had settlement discussions with
six such shareholders holding 32,500 shares, and there are additional
conversion shares held by prior or current officers or directors of the
Company or RCI. Settlement agreements have been sent to all six holders and
four covering 20,000 shares have been executed and returned. There is no
assurance that the other two settlement agreements will be executed. If the
settlement agreements are not signed and a suit is filed, the Company will
vigorously defend the action. The settlement agreements call for the Company
to register the outstanding shares held by the six holders, and to issue them
sufficient additional shares upon the effective date of the registration
statement to result in the six holders having free trading shares with a value
equal to 120% of the amount of their original investment, based on the
average trading price of the Company's common stock for the five trading days
immediately preceding the effective date.
POTENTIAL LAWSUITS:
Price International, Inc. (PRI) may assert a claim for breach of contract and
federal securities laws violations in connection with the exercise of 25,000
warrants at $11.25 per share by it allegedly based on statements made to it by
the Company (See Agreement with Price International, Inc.). PRI asserted this
claim in a letter written to the Company by its counsel in October 1995. The
Company has communicated directly with Price International and agreed to
register the shares underlying the remaining 75,000 warrants held by Price
International. No settlement agreement was, however, entered into and no
further threats by Price International have been made.
27
<PAGE>
Two clients of a broker-dealer firm have asserted claims against the Company
and its prior President alleging misrepresentations in the course of providing
information to the shareholders of the Company and alleging omissions to
state material facts. These two potential plaintiffs have asserted their
claims informally that they purchased the Company's securities through a
registered broker-dealer firm in the open market. They claim to have
purchased several million dollars worth of the Company's common stock and
to have suffered losses because of the acts and/or omissions of the Company
and its prior President. If these claims are filed as a legal complaint, the
Company will seek to consolidate them with the Herbert Schwartz and/or the
class action lawsuits.
From time to time, the Company is involved in litigation arising from the
ordinary course of business, the ultimate resolution of which management
believes will not have a material adverse effect on the financial condition or
results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the
fourth quarter of the year ended December 31, 1995.
28
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
MATTERS
MARKET INFORMATION:
The Company's common stock trades on the Nasdaq Small-Cap Market under the
symbol "ICNT". The following table sets forth the range of bid prices for the
common stock during the periods indicated. Prices represent the actual high
and low sale prices of the Company's stock as provided by Nasdaq real-time
pricing information.
<TABLE>
<CAPTION>
Year ended December 31, 1995:
Quarter High Low Last Sale
- ------- ------ ------ ---------
<S> <C> <C> <C>
4 11 1/4 2 1/2 4 9/16
3 24 1/2 9 11
2 16 3/8 10 7/8 15
1 14 5/8 8 1/4 14 3/8
<CAPTION>
Year ended December 31, 1994:
Quarter High Low Last Sale
- ------- ------ ------- ---------
<S> <C> <C> <C>
4 14 5/8 9 15/16 14 5/8
3 12 1/2 8 11 3/8
2 11 1/8 6 3/8 9 3/4
1 7 1/4 6 6 3/4
</TABLE>
On March 27, 1996, the last sales price per share of the Company's common
stock, as reported by the NASDAQ Stock Market, was $5 1/2.
On March 27, 1996, the Company's 13,224,024 shares of common stock outstanding
were held by approximately 700 shareholders of record.
29
<PAGE>
DIVIDENDS:
The Company has not paid cash dividends on its common stock since inception.
Payment of dividends is within the discretion of the Company's Board of
Directors and will depend, among other factors, on earnings, capital
requirements and the operating and financial condition of the Company. At the
present time, the Company's anticipated working capital requirements are such
that it intends to follow a policy of retaining earnings in order to finance
the development of its business. (See "Item 7. Management's Discussion
and Analysis of Financial Condition and Results of Operations").
ITEM 6. SELECTED FINANCIAL DATA
A summary of selected financial data for the five years ended December 31,
1995, 1994, 1993, 1992 and 1991, is presented below, and should be read in
conjunction with the audited consolidated financial statements for the years
ended December 31, 1995, 1994 and 1993 at "Item 8. Financial Statements and
Supplementary Data."
<TABLE>
<CAPTION>
STATEMENTS OF OPERATIONS DATA1:
Fiscal Years Ended December 31,
19954 19944 19934 19923,4 19912
------------ ------------ ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Sales $86,564,917 $46,815,057 $11,298,972 $ 5,534,874 $1,898,071
Income/(loss) before
income taxes,
extraordinary items
& minority interest 957,044 4,000,242 (1,606,844) (2,264,597) 397,631
Income/(loss) before
extraordinary items
& minority interest 856,543 3,999,187 (1,606,844) (2,461,697) 1,322
Net income/(loss) 1,366,025 4,071,194 (948,769) (2,021,333) 1,322
Per common share
and common
share equivalents:
Net income/(loss) before
extraordinary items 0.11 0.42 (0.20) (0.34) .00
Net income/(loss) 0.11 0.42 (0.12) (0.28) .00
</TABLE>
30
<PAGE>
<TABLE>
<CAPTION>
BALANCE SHEET DATA1:
December 31,
1995 4 1994 4 1993 4 19923, 4 1991 2
----------- ----------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Total assets $74,105,629 $26,158,346 $8,665,839 $6,744,994 $2,174,428
Long-term obligations 8,459,772 900 20,000 176,000 83,334
<FN>
__________________________________________
(1) Segment information is presented at "Item 1. Business - Segment Information."
(2) In 1991, the Company wrote off its entire investment in Incomnet India Limited.
(3) In 1992, the Company acquired a controlling interest in National Telephone &
Communications, Inc. This information is described in "Item 1. Business -
Acquisition of National Telephone & Communications, Inc. (NTC)."
(4) The Company is engaged in legal proceedings where the ultimate outcome cannot
presently be determined. This information is described at "Item 3. Legal
Proceedings."
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES:
For the year ended December 31, 1995, the Company had a net profit of
$1,366,025 and, at that date, current assets exceeded current liabilities by
$1,440,515. Since the Company acquired a controlling interest in NTC in early
1992, the Company's capital needs have been satisfied from outside sources
such as the private placement of securities, the exercise of warrants and
options, and loans and bank credit lines guaranteed by its principal
shareholders. Cash flow from operations did not provide net working capital to
the Company during the period from February 1992 to May 1994, but has been
positive since that date.
The Company had net working capital of $1,440,515 at December 31, 1995, as
compared to net working capital of $8,798,793 at December 31, 1994. During
1995, net cash flow from operations was $1,378,839 compared to net cash flow
from operations of $3,083,887 in 1994.
During 1995, the Company's cash requirements were met through a combination of
cash flow from operations, exercise of warrants to purchase the Company's
common stock and private placements of its common stock. In 1995, the Company
raised $29,058,773 in either private placements or from the exercise of
warrants. The Company anticipates that it will continue to attain cash flow
sufficient to meet the Company's cash requirements in 1996 through a
combination of operations, bank borrowings, private placements of its common
stock and the exercise of warrants to purchase the Company's common stock. On
February 5, 1996, Melvyn Reznick, the President and a director of the Company,
personally guaranteed and arranged for a $500,000 bank line of credit for the
31
<PAGE>
Company, which may be expanded to a range of $750,000 to $1,000,000 in the
near future. As of March 22, 1996, the line had not been drawn upon, although
the Company expects to draw on it in the future to fund operating expenses at
the parent company level, or to fund capital contributions to Rapid Cast,
Inc. ("RCI") when the shareholders of RCI are called upon to provide
additional funds to RCI for its operations. In this regard, the Company
made an additional capital contribution of $324,000 to RCI in January 1996
pursuant to a private rights offering made by RCI. The Company anticipates
that during 1996 it and RCI will need financing in addition to their
respective cash flows to fund operations and, in the case of RCI, to
finance the growth of its business.
The Company had no material commitments for capital expenditures at December
31, 1995, but does expect to continue expanding the NTC headquarters building
and purchasing additional equipment commensurate with the requirements of its
customer base. During 1995, the Company had capital expenditures of $7,389,419
for plant and equipment.
Effective February 12, 1992, the Company entered into a Letter of Agreement
(the "Agreement") with National Telephone Communications, Inc. ("NTC"), to
ultimately acquire a controlling interest in NTC. NTC is a public company that
resells long distance telecommunications services. The Company loaned NTC
$2,850,000 during 1992, collateralized by substantially all the assets of NTC,
from its available working capital resources. In 1993, the Company loaned an
additional $1,935,961 to NTC, bringing the total to $4,785,961. In 1994, the
Company loaned NTC an additional $308,879, bringing the total to $5,094,810.
All loans to NTC were converted into an additional equity investment in NTC at
the end of 1994. No further loans were made to NTC during 1995.
In May 1992, as settlement with a creditor on a past due accounts payable of
approximately $725,000, the Company entered into a non-interest bearing credit
facility of approximately $432,000, resulting in a gain of approximately
$293,000 ($.04 per common share). The contract was payable in monthly
installments of $12,000 for the first twelve months and monthly installments
of $16,000 thereafter through November 1994. Maturities of the contract were
$84,000 in 1992, $172,000 in 1993 and $176,000 in 1994. This obligation was
paid in full in 1994.
At December 31, 1995, the Company had net operating loss carryforwards for
federal income tax purposes of approximately $16,800,000, which are expected
to be available to offset taxable income for the next several years. The
Company's subsidiary is engaged in legal proceedings where the ultimate
outcome cannot presently be determined. This information is described at "Item
3. Legal Proceedings."
32
<PAGE>
RESULTS OF OPERATIONS - 1995 COMPARED TO 1994:
Sales - Total 1995 sales increased by 85% from $46.8 million in 1994 to $86.6
million in 1995. The majority of this increase was attributable to NTC's
sales increase from $45.6 million in 1994 to $83.1 million in 1995. The
following table summarizes the Company's year-to-year sales performance by
subsidiary and segment:
<TABLE>
<CAPTION>
$ in millions
-------------
Subsidiary Segment 1995 1994
- ----------- --------------------------------------- ----- -----
<S> <C> <C> <C>
NTC Telephone (telecommunications services) $70.0 $34.2
NTC Telephone (marketing programs) 13.1 11.4
RCI Optical 2.0 --
AutoNETWORK Network 1.5 1.2
Total Company Sales $86.6 $46.8
</TABLE>
NTC's sales increase was driven largely by continued expansion of the customer
base for its telecommunication services. As a result of this continuing
expansion, NTC's telecommunication service revenues represented 84% of NTC's
total 1995 revenues with the remaining 16% generated by sales of NTC's
marketing programs. This 1995 revenue mix compares to NTC's 1994 mix of 75%
from telecommunication services and 25% from marketing programs.
The consolidation of RCI in the third and fourth quarters of 1995 added $2.0
million of optical product sales to the total year results.
Cost of Sales - Total Company cost of sales, which tends to vary directly with
sales, increased from $31.2 million or 67% of sales in 1994 to $57.9 million
or 67% of sales in 1995. The following table summarizes the Company's
year-to-year changes in two major cost components:
<TABLE>
<CAPTION>
$ in millions
1995 1994
------ ------
<S> <C> <C>
Commissions paid to NTC independent sales reps $14.2 $ 7.7
All other costs of sales 43.7 23.5
Total Company Cost of Sales $57.9 $31.2
============
</TABLE>
NTC's total commission expense increased from $7.7 million in 1994 to $14.2
million in 1995. The most significant single factor in this year-to-year
change was an annual increase of $3.0 million in residual monthly sales
commissions paid to independent sales representatives on NTC's expanding
telecommunication service revenues. The remainder of the year-to-year
change was caused by increases in various bonuses and overrides paid to
sales representatives who signed up new telephone service customers for NTC.
The second cost component shown in the table above is "all other costs of
33
<PAGE>
sales" which represents: (1) NTC's long distance carrier costs, (2) NTC's
costs of producing sales materials for its independent sales representatives,
(3) RCI's costs of producing optical systems and anscillary goods, and(4)
AutoNETWORK costs of providing communications network products and services.
General and Administrative - Total G&A costs increased from $9.4 million or
20% of sales in 1994 to $19.8 million or 23% of sales in 1995. G&A costs
generally include the costs of employee salaries, fringe benefits, supplies,
and related support costs which are required in order to provide such
operating functions as customer service, billing, marketing, product
development, information systems, collections of accounts receivable, and
accounting.
NTC's G&A costs increased during 1995 in order to: (1) support its continuing
sales growth in 1995 and, (2) build stronger infrastructure to accommodate
still greater sales growth and improved cost efficiencies in the future. RCI
incurred substantial G&A costs in 1995 relating to its startup of operations.
Depreciation and Amortization - Total Company depreciation and amortization
expense increased from $0.4 million in 1994 to $1.0 million in 1995. This
increase was caused by greater investment by NTC in computer hardware and
software, furniture and equipment, and leasehold improvements required to
support its rapid expansion in sales.
Bad Debt Expense - Total Company bad debt expense increased from $1.8 million
or 3.8% of sales in 1994 to $4.1 million or 4.8% of sales in 1995. The
year-to-year increase in bad debt was caused primarily by increased
provisioning of NTC's Dial-1 receivables and secondarily by the Company's
establishment of a bad debt reserve for a potentially uncollectible note
receivable from a Company shareholder.
Other Income and Expense - The Company's net income and expense declined from
net other income of $0.3 million in 1994 to net other expense of $1.0 million
in 1995. This $1.3 million net decline was primarily caused by: (1) a
$382,500 settlement with convertible noteholders relating to the acquisition
of RCI, (2) a $244,010 settlement with a former Company officer, and (3) a
$337,500 write-off of marketable securities by NTC.
Acquisition Costs and Expenses - Acquisition costs increased from $ .3 million
in 1994 to $1.7 million in 1995. This increase in costs was caused almost
entirely by the acquisition of RCI and includes: (1) $1,228,206 of
amortization expense relating to the acquisition of RCI patent rights, (2)
$118,743 of interest expense on notes used to finance the RCI acquisition and
related legal costs, and (3) $107,841 of equity in RCI's losses from February,
1995 (date of acquisition) through June, 1995 (the period during which the
Company's 51% ownership of RCI was recorded under the equity method of
accounting).
Minority Interest - Beginning on July 1, 1995, the Company converted from the
equity method to the consolidated method of accounting for its 51% ownership
in RCI. As a result, 49% of RCI's losses from July 1 through December 31,
1995 (the "minority interest") were eliminated from the Company's
"Consolidated Statements of Operations" for 1995.
34
<PAGE>
Net Income - Total Company net income declined from $4.1 million or 8.7% of
sales in 1994 to $1.4 million or 1.6% of sales in 1995. Although NTC's
year-to-year net income increased substantially, those increases were more
than offset by losses sustained from the Company's internal operations and
from RCI's operations.
RESULTS OF OPERATIONS - 1994 COMPARED TO 1993:
Sales - In 1994, total revenues were $46.8 million as compared to $11.3
million in 1993, an increase of $35.5 million or 314%.
Telecommunications-related revenues increased to $35.4 million in 1994 from
$7.0 million in 1993, an increase of $28.4 million or 404%, while
marketing-related revenues increased to $11.4 million from $4.3 million in
1993, an increase of $7.1 million or 167%. The growth of the Company's
telecommunications-related revenues was associated with the increase in the
base of marketing representatives, which results in the signing of new
telephone customers. The growth of the Company's marketing-related revenues
was due to a marketing program involving the sale of marketing programs and
materials to independent sales representatives.
Cost of Sales - Total Company cost of sales, including commissions to
independent sales representatives, increased to $31.2 million in 1994 from
$9.5 million in 1993, an increase of $21.7 million or 227%. Expenses
associated with commissions, bonuses and overrides paid to NTC's independent
representatives for 1994 were $7.7 million versus $2.3 million in 1993, an
increase of $5.4 million or 227%. Other increases in expenses were primarily
attributable to the increased costs of communication services from NTC's
primary carriers.
General and Administrative - General and administrative costs were $9.4
million in 1994 versus $2.6 million in 1993, an increase of $6.8 million or
257%. This increase was attributable to substantial growth in NTC's
telecommunications and marketing revenues, which necessitated substantial
increases in the Company's selling, general and administrative operations. The
increase in these operations, however, was lower as a percentage increase than
the increase in revenues, reflecting an improved economy of scale in the
Company's operations.
Depreciation and Amortization - Depreciation and amortization increased to
$0.7 million in 1994 from $0.5 million in 1993, an increase of $0.2 million or
38%. This increase was due to the increased investment in capital goods
required to conduct and expand operations.
Bad Debt Expense - Total Company bad debt expense increase to $1.8 million in
1994 from $0.2 million in 1993, an increase of $1.6 million or 925%. The
increase in bad debt was due to the rapid growth in telecommunications
revenues in 1994 versus 1993, although the rate of growth of bad debt from
1993 to 1994 reflects an over-reserve for bad debt in 1992 of $1.1 million,
which was applied against bad debt in 1993. The actual rate of growth of bad
debt in 1994 was commensurate with the rate of growth in telecommunications
revenues from 1993 to 1994.
Other Income and Expense - Total Company other income and expense changed from
a net expense of $0.1 million in 1993 to net income of $0.3 million in 1994, a
gain of $0.4 million, or 765%. The increase was due to the decreased need for
35
<PAGE>
the Company to borrow funds in 1994 versus 1993, along with the increase in
the Company's cash position, which resulted in interest gains on funds held in
cash accounts.
Net Income - The Company generated net income of $4.1 million in 1994 versus a
loss of $0.9 million in 1993, an increase of $5.0 million or 529%. The
Company's net income reflects the improved and profitable operations at NTC in
1994.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements and supplementary financial information
which are required to be filed under this item are presented under "Item 14.
Exhibits, Financial Statement Schedules and Reports on Form 8-K" in this
document, and are incorporated herein by reference.
36
<PAGE>
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS OF THE
REGISTRANT
The information required under this Item is contained in the definitive Proxy
Statement for the Company's 1996 Annual Meeting of Shareholders to be filed
with the Securities and Exchange Commission pursuant to Regulation 14A by
April 30, 1996, and is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required under this Item is contained in the definitive Proxy
Statement for the Company's 1996 Annual Meeting of Shareholders to be filed
with the Securities and Exchange Commission pursuant to Regulation 14A by
April 30, 1996, and is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required under this Item is contained in the definitive Proxy
Statement for the Company's 1996 Annual Meeting of Shareholders to be filed
with the Securities and Exchange Commission pursuant to Regulation 14A by
April 30, 1996, and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required under this Item is contained in the definitive Proxy
Statement for the Company's 1996 Annual Meeting of Shareholders to be filed
with the Securities and Exchange Commission pursuant to Regulation 14A by
April 30, 1996, and is incorporated herein by reference.
37
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
INDEX TO FINANCIAL STATEMENTS:
- ----------------------------------------------------------------------
Page No.
--------
<S> <C>
Report of Independent Auditors 41
Consolidated Balance Sheets - December 31, 1995 and 1994 42
Consolidated Statements of Operations - Years Ended December 31, 1995,
1994 and 1993 44
Consolidated Statements of Shareholders' Equity -Years Ended
December 31, 1995, 1994 and 1993 45
Consolidated Statements of Cash Flows - Years Ended December 31, 1995,
1994 and 1993 46
Notes to Consolidated Financial Statements 48
Schedule II - Valuation and Qualifying Accounts - December 31, 1995 and 1994 60
38
<PAGE>
</TABLE>
INDEX TO EXHIBITS:
Exhibits designated by the symbol * are filed with this Annual Report on Form
10-K. All exhibits not so designated are incorporated by reference to a prior
filing as indicated.
Exhibits designated by the symbol ** are management contracts or compensatory
plans or arrangements that are required to be filed with this report pursuant
to this Item 14.
The Company undertakes to furnish to any shareholder so requesting a copy of
any of the following exhibits upon payment to the Company of the reasonable
costs incurred by the Company in furnishing any such exhibit.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ----------------------------------------------------------------------------
<C> <S>
3.2* Proposed amendment to Bylaws Regarding Directors.
10.1 Contract between Wiltel, Inc. and National Telephone Communications, Inc.
dated November 15, 1994, previously filed as an Exhibit to Registration
Statement on Form S-3 #33-87302 declared effective on December 22, 1994.
10.2* Standard Office Lease Between William B. Bellis, Sr. And Rapid Cast, Inc.
From May 31, 1995 to May 30, 2000 for property on 4510-12 Robards Lane,
Louisville, KY.
21* Subsidiaries of the Registrant
27* Financial Data Schedule
<CAPTION>
REPORTS ON FORM 8-K, FILED IN 1995:
20.1 Report on Form 8-K - Acquisition of Rapid Cast, Inc. dated and filed on
February 8, 1995.
20.2 Report on Form 8-K - Stock Purchase Agreement for Rapid Cast, Inc.,
previously filed as Exhibit A dated and filed on February 8, 1995.
20.3 Report on Form 8-K - Stock Purchase Agreement for Q2100, Inc., previously
filed as Exhibit B dated and filed on February 8, 1995.
20.4 Report on Form 8-K - Stock Pledge Agreement, previously filed as Exhibit
C dated and filed on February 8, 1995.
20.5 Report on Form 8-K - Form of Convertible Note, previously filed as Exhibit
D dated and filed on February 8, 1995.
39
<PAGE>
20.6 Report on Form 8-K - Amendment to the Quarterly Report of Form 10-Q for
three months ended March 31, 1995, dated July 25, 1995 and filed on July
25, 1995.
20.7 Report on Form 8-K - Irrevocable Tender of Payment to Company to Return
Short Swing Profits by Sam D. Schwartz dated August 18, 1995 and filed on
August 18, 1995.
20.8 Report on Form 8-K - Changes to the Board of Directors of Incomnet dated
and filed on November 15, 1995.
20.9 Report on Form 8-K - Change in the President and Chief Executive Officer
of Incomnet dated November 30, 1995 and filed on November 15, 1995.
20.10 Report on Form 8-K - Employment Agreement between Incomnet and Melvyn
Reznick, President of Incomnet, Inc. Dated November 27, 1995 and filed on
November 30, 1995.
20.11 Report on Form 8-K - Severance Agreement between Incomnet, Inc. And Sam D.
Schwartz, former Chairman and President of Incomnet, Inc. Dated November 30,
1995 and filed on November 30, 1995.
20.12 Report on Form 8-K - Agreement with National Telephone & Communications,
Inc. (NTC) for incentive stock option program and for a public offering of
NTC's stock dated February 6, 1996 and filed on February 9, 1996
40
<PAGE>
</TABLE>
Report of Independent Auditors
Board of Directors and Shareholders
Incomnet, Inc.
We have audited the consolidated balance sheets of Incomnet, Inc. and
subsidiaries as of December 31, 1995 and 1994 and the related consolidated
statements of operations, stockholder's equity and cash flow for each of the
three years in the period ended December 31, 1995, and the schedule listed in
Item 14. These financial statements and schedule are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these consolidated financial statements based on our audits.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements and
schedule are free of material misstatement. An audit included examining, on
a test basis, evidence supporting the amounts and disclosures in the financial
statements and schedule. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Incomnet, Inc.
at December 31, 1995 and 1994, the results of its operations and its cash
flows for each of the three years in the period ended December 31, 1995, in
conformity with generally accepted accounting principles.
As discussed in Note 7 to the financial statements, the Company is a party to
a class action matter, claiming losses arising from alleged securities
violations based upon the denial and non-disclosure of a pending investigation
by the Securities and Exchange Commission and on alleged securities
transactions by its former President. Legal counsel to the Company has
advised that the ultimate outcome of this matter and a range of potential loss
cannot presently be determined. Accordingly, no provision for any liability
that may result upon adjudication has been made in accompanying financial
statements.
/s/ Stonefield Josephson
ACCOUNTANCY CORPORATION
Santa Monica, California
March 8, 1996
41
<PAGE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
YEARS ENDED DECEMBER 31,
ASSETS
1995 1994
------------ ------------
<S> <C> <C>
CURRENT ASSETS:
Cash & cash equivalents $ 1,644,968 $ 9,694,900
Accounts receivable, less allowance for doubtful
accounts of $3,154,241 at December 31, 1995 and
$1,530,217 at December 31, 1994 12,177,257 8,603,577
Notes receivable - current portion 102,594 --
Notes receivable from officers & shareholders -
net of reserves of $208,800 863,440 --
Inventories 1,646,829 28,362
Prepaid expenses and other 1,197,245 94,247
------------ ------------
Total current assets 17,632,333 18,421,086
------------ ------------
PLANT AND EQUIPMENT:
Computer hardware & software 5,113,588 3,513,433
Furniture & office equipment 1,878,439 682,650
Leasehold improvements 4,133,885 400,935
------------ ------------
Total plant & equipment (gross) 11,125,912 4,597,018
Less accumulated depreciation (1,979,858) (1,994,553)
------------ ------------
Total plant & equipment (net) 9,146,054 2,602,465
------------ ------------
OTHER ASSETS:
Excess of purchase price over net assets of NTC, less
accumulated amortization of $941,644 at December 31, 1995
and $663,524 at December 31, 1994 4,838,610 4,667,704
Patent rights from the acquisition of RCI
less accumulated amortization of $2,019,233
at December 31, 1995 41,688,844 --
Investment in Lab Tech 130,725 --
Investment in marketable securities 190,714 337,500
Notes receivable - long term 155,000 --
Deposits and other 323,349 129,591
------------ ------------
Total other assets 47,327,242 5,134,795
------------ ------------
Total assets $74,105,629 $26,158,346
============ ============
See accompanying "Notes to Consolidated Financial Statements."
42
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
YEARS ENDED DECEMBER 31,
LIABILITIES, MINORITY INTEREST AND SHAREHOLDERS' EQUITY
1995 1994
------------- -------------
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $ 8,783,797 $ 5,813,813
Accrued expenses 3,686,661 1,700,213
Current portion of notes payable 2,530,886 21,494
Deferred income 1,190,474 2,086,773
------------- -------------
Total current liabilities 16,191,818 9,622,293
------------- -------------
LONG-TERM LIABILITIES:
Notes Payable 9,622 --
Deposits & other 1,100 900
Deferred tax liability (net) 8,449,050 --
------------- -------------
Total long-term liabilities 8,459,772 900
------------- -------------
Total liabilities 24,651,590 9,623,193
------------- -------------
MINORITY INTEREST 6,905,983 --
------------- -------------
SHAREHOLDERS' EQUITY:
Common stock, no par value; 20,000,000 shares
authorized; issued and outstanding 13,262,648
shares at December 31, 1995 and 10,482,854
shares at December 31, 1994 60,883,892 31,376,094
Treasury stock (5,491,845) (665,208)
Accumulated deficit (12,843,991) (14,175,733)
------------- -------------
Total shareholders' equity 42,548,056 16,535,153
------------- -------------
Total liabilities, minority interest & shareholders' equity $ 74,105,629 $ 26,158,346
============= =============
See accompanying "Notes to Consolidated Financial Statements."
43
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31,
1995 1994 1993
------------ ------------ ------------
<S> <C> <C> <C>
SALES $ 86,564,917 $ 46,815,057 $ 11,298,972
------------ ------------ ------------
OPERATING COSTS & EXPENSES:
Cost of sales 57,948,207 31,220,780 9,521,803
General & administrative 19,792,906 9,437,851 2,643,583
Depreciation & amortization 1,006,978 444,486 474,022
Bad debt expense 4,124,589 1,788,772 174,377
Other (income)/expense 1,002,283 (342,445) 51,455
------------- ------------ -----------
Total operating costs and expenses 83,874,963 42,549,444 12,865,240
------------- ------------ -----------
ACQUISITION COSTS & EXPENSES:
NTC Acquisition - goodwill amortization 278,120 265,371 40,576
RCI Acquisition - patent rights amortization 1,228,206 -- --
RCI Acquisition - interest and legal 118,743 -- --
RCI Acquisition - equity in (profit)/loss of
unconsolidated subsidiary 107,841 -- --
------------- ------------ -------- --
Total acquisition costs & expenses 1,732,910 265,371 40,576
------------- ------------ -----------
Income/(loss) before income taxes,
extraordinary items & minority interest 957,044 4,000,242 (1,606,844)
INCOME TAXES 100,501 1,055 --
------------- ------------ -----------
Income/(loss) before extraordinary items & minority interest 856,543 3,999,187 (1,606,844)
EXTRAORDINARY ITEMS:
Gain/(loss) on settlement with creditors -- 72,007 658,075
MINORITY INTEREST 509,482 -- --
------------- ------------ ------------
Net income/(loss) $ 1,366,025 $ 4,071,194 $ (948,769)
============= ============ ============
INCOME/(LOSS) PER COMMON SHARE
AND COMMON SHARE EQUIVALENTS:
Income/(loss) before extraordinary items $ 0.11 $ 0.42 $ (0.20)
Extraordinary items -- -- 0.08
------------- ------------ ------------
Net income/(loss) $ 0.11 $ 0.42 $ (0.12)
============= ============ ============
WEIGHTED AVERAGE NUMBER OF COMMON SHARES AND FOR 1995,
COMMON SHARE EQUIVALENTS OUTSTANDING 12,706,401 9,593,207 8,183,877
================== ============ ============
See accompanying "Notes to Consolidated Financial Statements."
44
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDER'S EQUITY
DECEMBER 31, 1995, 1994 AND 1993
Common Stock
Shares Amount Gain/(Deficit) Total
------------ ------------ --------------- ------------
<S> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1993 9,061,382 $22,176,075 $ (18,246,927) $ 3,929,148
Common stock issued upon exercise
of warrants 1,308,833 8,544,862 8,544,862
Common stock issued under private
placement 100,000 500,000 500,000
Common stock issued in exchange
for NTC shares 82,639 155,157 155,157
Repurchase of treasury shares (70,000) (665,208) (665,208)
Net income 4,071,194 4,071,194
------------ ------------ --------------- ------------
BALANCE AT DECEMBER 31, 1994 10,482,854 $30,710,886 $ (14,175,733) $16,535,153
Common stock issued upon exercise
of warrants 489,582 4,343,262 4,343,262
Common stock issued under private
placement 157,500 1,890,000 1,890,000
Common stock issued under upon
conversion of note 2,300,000 22,664,000 22,664,000
Common stock issued in exchange
for NTC shares 253,712 507,424 507,424
Repurchase of treasury shares (451,000) (5,085,025) (5,085,025)
Treasury shares sold 30,000 361,500 361,500
Change in valuation of marketable
securities (34,283) (34,283)
Net income 1,366,025 1,366,025
----------- ------------ --------------- ------------
BALANCE AT DECEMBER 31, 1995 13,262,648 $55,392,047 $ (12,843,991) $42,548,056
=========== ============ =============== ============
See accompanying "Notes to Consolidated Financial Statements."
45
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31,
1995 1994 1993
------------- ------------ ------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
After tax profit/(loss) $ 856,543 $ 4,071,194 $ (948,769)
Depreciation & amortization - operations 1,413,447 444,486 474,022
Depreciation & amortization - acquisitions 1,099,859 265,371 40,576
Loss from disposition of furniture & equipment -- -- 5,363
Gain on settlement with creditors -- -- (658,075)
------------- ------------ ------------
Net cash inflow/(outflow) from operating activities 3,369,849 4,781,051 (1,086,883)
------------- ------------ ------------
CASH FLOWS FROM (INCREASE)/DECREASE IN OPERATING ASSETS:
Accounts receivable (2,784,363) (6,717,705) (1,024,444)
Notes receivable - current portion (102,594) -- --
Notes receivable - due from shareholder (863,440) -- --
Inventories (400,875) 41,615 (62,451)
Prepaid expenses & other (999,831) (82,247) (10,136)
Notes receivable - long term (155,000) -- --
Deposits & other (193,758) (53,591) 6,354
------------- ------------ ------------
Net cash inflow/(outflow) from changes in
operating assets (5,499,861) (6,811,928) (1,090,677)
------------- ------------ ------------
CASH FLOWS FROM INCREASE/(DECREASE)
IN OPERATING LIABILITIES:
Accounts payable 2,571,096 3,315,686 1,105,917
Accrued expenses 1,834,054 149,874 165,242
Deferred income (896,299) 1,649,204 (330,824)
------------- ------------ ------------
Net cash inflow/(outflow) from changes in operating 3,508,851 5,114,764 940,335
------------- ------------ ------------
liabilities
Net cash inflow/(outflow) from operations 1,378,839 3,083,887 (1,237,225)
------------- ------------ ------------
CASH FLOWS FROM (INCREASE)/DECREASE
IN INVESTING ACTIVITIES:
Acquisition of plant & equipment (7,389,419) (1,693,534) (636,266)
Patents/intangible assets (663,721) -- --
Investment in Lab Tech (130,725) -- --
Investment in marketable securities 146,786 (262,500) (118,507)
Goodwill from acquisition of NTC (449,026) (144,430) --
Patent rights from acquisition of RCI (20,338,022) -- --
------------- ------------ ------------
Net cash inflow/(outflow) from investing activities (28,824,127) (2,100,464) (754,773)
------------- ------------ ------------
See accompanying "Notes to Consolidated Financial Statements."
46
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, (CONT'D)
1995 1994 1993
------------- ----------- -----------
<S> <C> <C> <C>
CASH FLOWS FROM INCREASE/(DECREASE)
IN FINANCING ACTIVITIES:
Bank overdraft (56,770) 56,770 (45,005)
Minority interest (7,718,137) -- --
Notes payable - current 1,306,198 (264,606) (550,333)
Sale of common stock, net 29,507,799 8,069,392 3,267,680
Treasury stock (4,826,638) 465,419 --
Loans from a major shareholder -- (21,125) (600,100)
Notes payable - long term 9,822 -- --
Paid in capital 500,000 -- --
Repayment of short-swing profits by a director -- -- 25,726
Prior period adjustment to retainer earnings (1) 698 --
Change in valuation allowance (34,286) -- --
------------- ----------- -----------
Net cash inflow/(outflow) from financing activities 18,687,987 8,306,548 2,097,968
------------- ----------- -----------
Net cash inflow/(outflow) from investing & financing (10,136,140) 6,206,084 1,343,195
------------- ----------- -----------
Net increase/(decrease) in cash & cash equivalents (8,757,301) 9,289,971 105,970
Cash & cash equivalents at beginning of year 10,402,268 404,929 298,959
------------- ----------- -----------
Cash & cash equivalents at end of year $ 1,644,968 $9,694,900 $ 404,929
============= =========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the year for:
Interest $ 132,644 $ 1,295 $ 211,835
Income taxes 574,162 1,055 800
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING
AND FINANCING ACTIVITIES:
Common stock subscriptions receivable, recorded
as addition to common stock -- -- $ 199,998
See accompanying "Notes to Consolidated Financial Statements."
47
<PAGE>
</TABLE>
INCOMNET, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31,1995
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include
the accounts of the Company, its wholly-owned subsidiary National & Telephone,
Inc. (NTC), and its 51%-owned subsidiary Rapid Cast, Inc. (RCI). As a company
with a controlling interest in RCI, the Company is accounting for RCI using
the consolidation method of accounting. The Company shifted from the equity
method of accounting for RCI under FASB Statement No. 94 in the first and
second quarters of 1995 to the consolidation method because it controls RCI
and it is not certain when the Company will cease to hold a controlling
interest in RCI by virtue of a spin-off or otherwise. All significant
intercompany accounts and transactions have been eliminated in consolidation.
REVENUE RECOGNITION - The Company recognizes revenue during the month in which
services or products are delivered, as follows:
(1) NTC's long distance telecommunications service revenues are generated
when customers make long distance telephone calls from their business or
residential telephones or by using any of NTC's telephone calling cards.
Proceeds from prepaid telephone calling cards are recorded as deferred
revenues when the cash is received, and recognized as revenue as the telephone
service is utilized. The reserve for deferred revenues is carried on the
balance sheet as an accrued liability. Total 1995 long distance telephone
service sales totaled $69,994,580.
(2) NTC's marketing-related revenues are derived from programs and material
sold to the Company's base of independent sales representatives, including
forms and supplies, fees for representative and certified trainer renewals,
and the Company's Certified Trainer and Customer Representative programs. The
Company requires that all such services and materials be paid at the time of
purchase. Revenues from marketing-related materials are booked as cash sales
when the revenues are received. For the fiscal year ended December 31, 1995,
marketing sales totaled $13,132,563.
(3) RCI's optical-related revenues are derived from the sale of the Company's
optical lens manufacturing system and related supplies. Revenues from
optical-related systems and supplies are recognized as sales at the time the
products are shipped to the customer. For the six-month period ending
December 31, 1995, during which time the Company recorded RCI sales using the
consolidation method of accounting, optical product sales totaled $1,992,578.
(4) The Company's network service revenues are recognized as sales as the
service is delivered. Total 1995 network service sales totaled $1,445,199.
CONCENTRATION OF CREDIT RISK - The Company maintains cash balances or invests
in U.S. treasury bills at various financial institutions, which are insured up
to $100,000 by the Federal Deposit Insurance Corporation. Balances at one of
48
<PAGE>
these institutions aggregated approximately $570,910 at December 31, 1995, and
$4,087,627 at December 31, 1994. The Company sells its telephone and network
services to individuals and small businesses throughout the United States and
does not require collateral. It sells its optical products both domestically
and internationally. Reserves for uncollectible amounts are provided, which
management believes are sufficient.
COMPUTER HARDWARE, FURNITURE AND OFFICE EQUIPMENT - Computer hardware,
furniture and office equipment are stated at cost. Depreciation is provided
by the straight-line method over the assets' estimated useful lives of 5 to 10
years.
COMPUTER SOFTWARE - The Company capitalizes the costs associated with
purchasing, developing and enhancing its computer software. All software
costs are amortized using the straight-line method over the assets' estimated
useful lives of 5 to 10 years
LEASEHOLD IMPROVEMENTS - All leasehold improvements are stated at cost and are
amortized using the straight-line method over the building lease term of 10
years.
NET INCOME/(LOSS) PER SHARE - Net income/(loss) per common share is based on
the weighted average number of common shares and common share equivalents in
1995. Common share equivalents have been excluded in 1994 and 1993 either
because their effect was immaterial (1994) or antidilutive (1993).
ACQUISITION AMORTIZATION - The excess of purchase price over net assets of NTC
has been recorded as an intangible asset and is being amortized by the
straight-line method over twenty years. The excess of purchase price over the
value of patent rights acquired with the purchase of the 51% ownership of RCI
has been recorded as an intangible asset and is being amortized using the
straight-line method over seventeen years.
DEFERRED TAX LIABILITY - Deferred income taxes result from temporary
differences in the basis of assets and liabilities reported for financial
statement and income tax purposes.
USE OF ESTIMATES - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
2. FUNDING OF MARKETING COMMISSIONS AND DEFERRED INCOME:
The Company's subsidiary, NTC, maintains separate bank accounts for the
deposit of funds related to the reserve of deferred income from the sale
of prepaid calling cards and for the payment of marketing commissions. Funding
of these accounts is adjusted regularly to provide for management's estimates
of required reserve balances. For the marketing commission account, NTC
49
<PAGE>
estimates the total commissions owed to active independent representatives
("IR Earned Compensation") each week for all monies collected that week due to
the efforts of those active independent representatives. All IR Earned
Compensation is then paid to the independent representatives, when due,
directly out of the separate marketing bank account.
3. RELATED PARTY TRANSACTIONS:
Notes receivable from officers and shareholders arise from aggregate loans of
$1,072,240 made to three officers in connection with the exercise of their
options to purchase the Company's common stock. Two of the notes bear
interest at the rate of 5.65% and the third note is non-interest bearing. All
three notes are due on demand and are partially secured by the stock
acquired upon the exercise of the options. For one of the officer loans, the
Company agreed to look only to the shares held by the officer as a source
of loan repayment. Accordingly, a reserve of $208,800 was provided in the
fourth quarter of 1995, representing the difference between the market value
of the shares held by the officer, and the amount of the loan.
Included in accounts receivable is approximately $542,000 due from companies
controlled by an individual who is an Incomnet shareholder and a founding
stockholder of RCI.
4. NOTES PAYABLE:
In May 1992, as settlement with a creditor on a past due accounts payable of
approximately $725,000, the Company entered into a non-interest bearing credit
facility of approximately $432,000 payable to the creditor, resulting in
an extraordinary gain of approximately $293,000 ($.04 per common share). The
contract was payable in monthly installments of $12,000 for the first
twelve months and monthly installments of $16,000 thereafter through December
1994. Maturities of the contract were $124,000 in 1993 and $224,000 in 1994,
totaling $348,000. The contract was completed in December 1994.
<TABLE>
<CAPTION>
Notes payable consists of the following as of December 31, 1995:
<S> <C>
Note payable in connection with financing of RCI
acquisition, interest at 8%, repaid in January 1996 (see Part I,
Item 1, "Acquisition of Rapid Cast, Inc.,-Financing of Acquisition") $ 500,000
Notes payable to founding stockholders of RCI,
interest at 7%, due in July 1996 1,517,759
Revolving line of credit of RCI, interest at bank reference
rate (approximately 10% at December 31, 1995) 490,000
Other 32,749
----------
$2,540,508
==========
Total 1995 interest expense of $153,840 resulted primarily from interest paid
on notes used to acquire RCI and from interest paid by RCI on its bank
revolving line of credit
50
<PAGE>
</TABLE>
5. DEFERRED TAX LIABILITY:
On February 15, 1992, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards ("SFAS") No. 109 "Accounting for
Income Taxes". Effective January 1, 1993, the Company adopted SFAS No, 109,
the effect of which was immaterial to the Company's financial statements in
1994 and resulted in a deferred tax liability in 1995.
Temporary differences between the financial statement carrying amounts and tax
bases of assets and liabilities that give rise to significant portions of the
deferred income tax assets and liabilities are as follows:
<TABLE>
<CAPTION>
December 31,
1995 1994
------------ ------------
<S> <C> <C>
Deferred tax assets
Allowance for doubtful accounts $ 1,360,000 $ 612,000
Financing costs -- 190,000
Non deductible reserves -- 65,000
Net operating loss carryforwards 7,503,000 7,120,000
Other 113,000 --
------------ ------------
Subtotal 8,976,000 7,987,000
------------ ------------
Deferred tax liabilities
Property and equipment, principally
due to differences in depreciation 676,000 267,000
Patent rights 8,449,050 --
------------ ------------
Subtotal 9,125,050 267,000
------------ ------------
Total (176,050) 7,720,000
Less valuation allowance (8,273,000) (7,720,000)
------------ ------------
Net deferred tax liability $ 8,449,050 $ - 0 -
============ ============
The deferred taxes at December 31, 1995 are presented in the accompanying
balance sheet as deferred tax assets - current (included in prepaid expenses
and other) of $384,000 and deferred tax liability - non current of $8,449,050.
The following is a reconciliation of the federal statutory tax rate and the
effective tax rate:
51
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
1995 1994 1993
------ ------ -------
<S> <C> <C> <C>
Federal statutory tax rate 34.0% 34.0% (34.0%)
Goodwill 9.9 2.0 9.0
Loss producing no current tax benefit -- -- 25.0
State taxes, net of federal benefits 38.2 -- --
Benefit from net operating loss carryforward (71.5) (36.0) --
Other, net -- -- --
------ ------ -------
Effective tax rate 10.6% 0% 0%
====== ====== =======
</TABLE>
Income tax benefits are recognized only when their realization is assured.
Accordingly, potential future income tax benefits resulting from net operating
losses incurred to date are not reflected in the consolidated financial
statements.
At December 31, 1995, Incomnet had available net operating loss carryforwards
for federal income tax purposes of approximately $16,800,000, expiring in
various years between 2000 and 2008, and Rapid Cast had a carryforward of
approximately $1,900,000 expiring through 2012. The company files combined
income tax returns for Incomnet and NTC and separate returns for RCI.
Accordingly, the federal net operating loss carryforwards of each corporation
are available to offset taxable income only of each separate corporation.
6. SHAREHOLDERS' EQUITY:
STOCK OPTIONS - The Company has an incentive stock option plan which was
adopted in 1994 (the "1994 Plan") for key employees and directors. The plan
provides for the issuance of options covering an aggregate of 1,500,000 shares
of common stock. In 1996, the Company intends to replace the 1994 stock
option plan with a new stock option plan for the executive officers, directors
and key consultants of the Company, primarily at the parent company level. The
Company's subsidiaries have or are expected to adopt their own separate
stock option plans to be implemented when those companies become publicly
traded. No additional stock options are expected to be granted under the 1994
stock option plan.
In November 1994, the Company approved the 1994 plan for directors, employees,
and key outside consultants of the Company that provided for the issuance of
up to 1,500,000 shares of common stock. The plan requires that the option
price must be at least 100% of the fair market value of the shares on the
date the option is granted. In November 1994, options to purchase 1,200,000
shares of the Company's common stock were granted at exercise prices of
$10 per share. These options will be vested based upon a performance
requirement in which National Telephone & Communications, Inc. must earn
at least $15 million in pre-tax profits during any continuous four audited
quarterly periods until December 31, 1997.
52
<PAGE>
WARRANTS - Since 1993, the Company has issued warrants to purchase the
Company's common stock to key employees, directors or other individuals or
organizations as follows:
<TABLE>
<CAPTION>
Dollar Canceled
Issued Number Price Exercised Amount or Expired Expiration
- -------- ------------ ----- ------------ ---------------- ---------------- -----------
<C> <C> <C> <C> <C> <S> <C>
9/18/93 375,000 5.00 150,000 $750,000 225,000
9/18/93 15,000 5.00 15,000
9/18/93 5,000 5.00 5,000 25,000
9/18/93 5,000 5.00 5,000
11/18/93 75,000 5.00 75,000 375,000
1-17-94 500,000 7.00 500,000 3,500,000
5/27/94 500,000 10.00 500,000 5,000,000
5/27/94 100,000 8.50 100,000 850,000
5/27/94 100,000 8.50 100,000 850,000
5/27/94 50,000 8.50 5/27/97
5/27/94 50,000 8.50 5/27/97
8/14/94 10,000 8.50 10,000 85,000
11/15/94 100,000 11.25 25,000 281,250
11/15/94 10,000 11.25 10,000 112,500
6/30/95 900,000 14.00 900,000
8/29/95 250,000 11.00 250,000
8/29/95 35,000 4.875(2) 8/29/97
8/29/95 35,000 4.875(2) 8/29/97
8/29/95 25,000 4.875(2) 8/29/97
11/27/95 300,000 4.875 5 years from date of vesting (1)
12/20/95 2,000 5.125(2) 12/31/96
12/20/95 3,000 5.125(2) 12/31/96
12/20/95 1,000 5.125(2) 12/31/96
12/20/95 1,000 5.125(2) 12/31/96
------------ ------------ --------------- ------------
3,447,000 1,475,000 $ 11,828,750 1,395,000
<FN>
________________________________________________________________________________
(1) These options vest as follows: 25,000 on February 28, 1996; 25,000 on May 31, 1996;
25,000 on August 31, 1996; and 25,000 on November 30, 1996, with an additional 200,000
upon Rapid Cast, Inc. achieving certain financial goals.
(2) The exercise price on these options was adjusted pursuant to a redemption of old stock
options and a reissuance of an equivalent number of new stock options with the same
expiration date.
Since 1993, the Company has issued warrants to purchase a total of 3,447,000
shares of the Company's common stock. At March 22, 1996, warrants to purchase
1,475,000 of those shares have been exercised bringing the Company
$11,828,750; warrants to purchase 1,395,000 shares have been canceled and
warrants remain outstanding to purchase 577,000 shares of the Company's common
stock at prices ranging from $4.875 to $11.25 per share.
53
<PAGE>
</TABLE>
COMMON STOCK - On August 5, 1994, the Company announced that its Board of
Directors authorized the repurchase of up to 1,000,000 shares of its common
stock from time to time on the open market or in private transactions. The
Company's Chief Executive Officer was given the discretion to decide when and
if the Company would repurchase shares and to effect such transactions. As of
March 27, 1996, the Company has repurchased a net of 486,000 shares of common
stock with a value of $5,491,845 under the terms of the repurchase
authorization as follows:
<TABLE>
<CAPTION>
Years ended Shares
December 31, Repurchased Cost
- ------------ ----------- ----------
<S> <C> <C>
1994 70,000 $ 665,208
1995 416,000 4,826,637
----------- ----------
486,000 $5,491,845
=========== ==========
</TABLE>
PRIVATE PLACEMENT - On June 30, 1995, the Company initiated a private
placement of 900,000 shares of the Company's restricted common stock at $12
per share and warrants to purchase 900,000 additional shares of the Company's
common stock at $14 per share. The warrants were exercisable for a period of
six months until December 31, 1995. The aggregate purchase price of the stock
and warrants was paid $1,890,000 in cash and subscription notes for a total of
$8,910,000 payable upon the registration of the shares and shares underlying
the warrants with the Securities and Exchange Commission. As the Company did
not register the shares, the Company issued only a total of 157,500 shares in
consideration for the contributions of cash made by the investors. The
warrants were not exercised and expired on December 31, 1995. The Company's
balance sheet reflects the issuance of 157,500 shares of the Company's common
stock in exchange for $1,890,000 in capital. The Company is using the
proceeds of the private placement to finance the growth requirements of its
operating subsidiaries.
SHORT SWING PROFITS - On August 18, 1995, the Company filed a Form 8-K
disclosing the tender of short swing profits to the Company by its former
President and Chief Executive Officer pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended. After adjustments and a
preliminary review of all purchases and sales of the Company's common stock
through September 1, 1995, the amount of short swing profits was calculated to
be $972,870. On August 18, 1995 and, including adjustments, on September 1,
1995, the Company's former President tendered the short swing profits by
cancellation of all his options to purchase 250,000 shares of the Company's
common stock. Pursuant to the Severance Agreement entered into by the Company
with Mr. Schwartz on November 30, 1995, the parties contemplated a review of
the short swing profit calculations and an independent appraisal of the stock
options tendered by Mr. Schwartz pursuant to Section 16(b) of the Exchange
Act. In addition, the Company was served with a derivative shareholder
54
<PAGE>
lawsuit asserting claims against Mr. Schwartz for the payment of the short
swing profits, and seeking an order that the Company collect those profits
from Mr. Schwartz. Based on the Company's latest calculations, which include
additional transactions disclosed by Mr. Schwartz in filings with the
commission in March, 1996, the short swing profits appear to be approximately
$2,074,000. The plaintiffs in the shareholder derivative lawsuit calculate
short swing profits to be approximately $2,128,000. The value of the tendered
stock options has not yet been agreed upon or appraised. There are no
assurances, however regarding a final determination of the amount of the
short swing profits or the value of the tendered stock options.
On February 29, 1996, the Company delivered a demand to Joel Greenberg, the
Chairman of the Board of Directors, to pay short swing profits of $46,500 to
the Company pursuant to Section 16(b) of the Exchange Act. The Company expects
the short swing profits to be paid on or before April 30, 1996.
7. COMMITMENTS AND CONTINGENCIES:
Litigation - The Company is a defendant in a class action matter alleging
securities violation with respect to alleged false denial and non-disclosure
of a Securities and Exchange Commission investigation and alleged non-
disclosure of purchases and sales of the Company's stock by an affiliate of
the former Chairman of the Board. Counsel for the company is unable to
estimate the ultimate outcome of this matter and is unable to predict a range
of potential loss. Accordingly, no amounts have been provided for the
class action lawsuit, in the accompanying financial statements.
The Company is under investigation by the Securities and Exchange Commission
under a non-public "formal order of private investigation." Management has
furnished all information requested by the Commission and does not believe
that the matter will have a material adverse impact on its financial position
or results of operations.
Building Leases - Rent expense for the years ended December 31, 1995,
1994 and 1993 was $800,694, $277,712 and $204,760, respectively.
The Company leases its office and operating facility in Woodland Hills ,
California under a noncancellable operating lease expiring July 1998. The
aggregate future minimum annual rental payments required under the operating
lease are as follows:
<TABLE>
<CAPTION>
Years ending
December 31,
- ------------
<S> <C>
1996 $104,556
1997 104,556
1998 60,991
--------
$270,103
========
</TABLE>
55
<PAGE>
The Company's subsidiary, NTC, leases its office and operating facilities in
Irvine, California under several noncancellable operating leases as described
in Part I, Item 2, "Properties." The aggregate future minimum annual rental
payments required under these operating leases and under the proposed
extension are as follows:
<TABLE>
<CAPTION>
Years ending
December 31,
- ------------
<S> <C>
1996 $ 586,943
1997 591,231
1998 603,632
1999 616,406
2000 629,562
2001 643,114
2002 657,072
2003 671,449
2004 383,742
----------
$5,383,151
==========
</TABLE>
The Company's 51%-owned subsidiary, RCI, leases its facility in Louisville,
Kentucky under a noncancellable operating lease as described in Part I, Item
2, "Properties." The aggregate future minimum annual rental payments required
under the operating lease are:
<TABLE>
<CAPTION>
Years ending
December 31,
- ------------
<S> <C>
1996 $ 98,004
1997 98,004
1998 99,864
1999 101,196
2000 42,165
--------
$439,233
========
</TABLE>
8. NETWORK MARKETING COSTS:
During 1995, NTC's net cost to operate its network marketing program was $1.9
million as summarized below (in $ millions):
56
<PAGE>
<TABLE>
<CAPTION>
1995
------
<S> <C>
Sales $13.1
Cost of sales 11.2
Operating expenses for support services 3.8
------
Total marketing-related costs 15.0
------
Net marketing cost $ 1.9
======
% of total NTC (long distance & marketing) sales 2.3%
</TABLE>
Marketing sales of $13.1 million were generated by the sale of materials,
training and support services to assist NTC independent sales representatives
in selling new retail customers and enrolling other representatives in the NTC
program. The marketing-related costs include commissions paid to independent
sales representatives for acquiring new retail telephone customers, as well as
the cost of sales materials, salaries and wages of marketing department
personnel, services required to support the independent sales representatives,
and other directly identifiable support costs, but do not include residual
commissions paid on continuing long distance telephone usage or the typical
indirect cost allocations, such as floor - space and supporting departments.
When the marketing-related costs of $15.0 million are compared against
marketing-related revenues of $13.1 million, the result is a net loss in
marketing - related activities of $1.9 million or 2.3% of total NTC sales.
9. SEGMENT INFORMATION:
In 1993 and 1994, the Company conducted its business operations in two
industry segments, including Network Services and Telephone Services. In 1995,
because of the acquisition of RCI, the Company conducted business in three
segments, including Network Services, Telephone Services and Optical Systems.
No one customer accounted for as much as 10% of the revenues of any segment in
1995, 1994 or 1993.
57
<PAGE>
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
SEGMENT INFORMATION
Telephone Optical Network General
YEAR ENDED DECEMBER 31, 1995 Services Systems Services Corporate Consolidated
- -------------------------------------------------- ------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C> <C>
Sales $83,127,140 $ 1,992,578 $ 1,445,199 $ -- $ 86,564,917
------------ ------------ ------------ ------------ -------------
Income/(loss) before income taxes, extraordinary
items & minority interest 5,059,758 (1,039,760) (1,184,327) (1,878,627) 957,044
Income taxes 365,101 -- (102,311) $ (162,289) 100,501
------------ ------------ ------------ ------------ -------------
Income/(loss) before extraordinary items
& minority interest $ 4,694,657 $(1,039,760) $(1,082,016) $(1,716,338) $ 856,543
============ ============ ============ ============ =============
Identifiable assets $21,757,624 $25,345,466 $ 1,568,668 $25,433,871 $ 74,105,629
Depreciation and amortization 704,642 429,719 279,086 $ 1,099,856 2,513,303
Capital expenditures 6,681,148 198,665 509,606 -- 7,389,419
Telephone Optical Network General
YEAR ENDED DECEMBER 31, 1994 Services Systems Services Corporate Consolidated
- ------------------------------------------------- ------------- ------------ ------------ ------------ -------------
Sales $45,608,753 $ -- $ 1,206,304 $ -- $ 46,815,057
------------ ------------ ------------ ------------ -------------
Income/(loss) before income taxes & extraordinary
items 3,741,972 -- 154,325 103,945 4,000,242
Income taxes -- -- 1,055 -- 1,055
------------ ------------ ------------ -------------
Income/(loss) before extraordinary items $ 3,741,972 $ -- $ 153,270 $ 103,945 $ 3,999,187
============ ============ ============ ============ ==============
Identifiable assets $12,830,140 $ -- $ 4,271,190 $ 9,057,016 $ 26,158,346
Depreciation and amortization 220,457 -- 489,400 -- 709,857
Capital expenditures 1,546,708 -- 146,826 -- 1,693,534
Telephone Optical Network General
YEAR ENDED DECEMBER 31, 1993 Services Systems Services Corporate Consolidated
- -------------------------------------------------- ------------ ------------ ------------ ------------ -------------
Sales $10,031,232 $ -- $ 1,267,740 $ -- $ 11,298,972
------------ ------------ ------------ ------------ -------------
Income/(loss) before income taxes & extraordinary
items (1,604,794) -- 238,685 (240,735) (1,606,844)
Income taxes -- -- -- -- --
------------ ------------ ------------ -------------
Income/(loss) before extraordinary items $(1,604,794) $ -- $ 238,685 $ (240,735) $ (1,606,844)
============ ============ ============ ============ =============
Identifiable assets $ 2,431,339 $ -- $ 905,000 $ 5,329,500 $ 8,665,839
Depreciation and amortization 308,776 -- 205,822 -- 514,598
Capital expenditures 461,563 -- 129,330 -- 590,893
58
<PAGE>
</TABLE>
10. GAIN ON SETTLEMENT WITH CREDITORS:
During 1993, the Company settled certain past due trade accounts payable of
the NTC subsidiary with a face amount of $877,000 in exchange for an agreement
to pay $218,925. The transaction resulted in an extraordinary gain on
settlement with creditors of $658,075.
11. ACQUISITION OF RAPID CAST, INC.:
On February 8, 1995, the Company acquired a 51% ownership in Rapid Cast, Inc.
for $28,164,000, in a transaction accounted for using the purchase method of
accounting. The acquisition resulted in the recognition of intangible patent
assets of $20.3 million, which are being amortized over 17 years.
The following summary, prepared on a pro forma basis, combines the
consolidated results of operations as if RCI had been acquired as of the
beginning of the periods presented, after including the impact of certain
adjustments, such as minority interest, equity in loss of unconsolidated
subsidiary and patent amortization. (Dollars in thousands, except per share
amounts).
<TABLE>
<CAPTION>
1995 1994
------- -------
<S> <C> <C>
Sales $87,860 $46,815
Net income $ 1,080 $ 4,071
Net income per share $ .08 $ 0.42
</TABLE>
The pro forma results are not necessarily indicative of what would have
occurred if the acquisition had been in effect for the entire periods
presented. In addition, they are not intended to be a projection of future
results and do not reflect any synergy that might be achieved from combined
operations.
12. FOURTH QUARTER ADJUSTMENTS:
During the fourth quarter of 1995, the Company recorded adjustments having the
effect of reducing net income by approximately $3.1 million or $ .24 per
share. These adjustments resulted primarily from reserve provisioning related
to settlements with shareholders and with the Company's former Chairman,
revisions of management's estimates regarding the collectibility of accounts
receivable, write-off of marketable securities and inventory, and reserve
provisioning for estimated legal fees.
59
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated: April 8, 1995
INCOMNET, INC.
(Registrant)
By: /s/ MELVYN REZNICK
MELVYN REZNICK
President and Chief Executive Officer
Pursuant to requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Capacity Date
- ---------------------- ------------------------------------ --------------
<S> <C> <C>
/s/ MELVYN REZNICK President, Chief Executive Officer,
- ----------------------
MELVYN REZNICK and Director April 8, 1996
/s/ JOEL W. GREENBERG Chairman, Board of Directors April 8, 1996
- ----------------------
JOEL W. GREENBERG
/s/ RICHARD A. MARTING Vice President of Finance April 8, 1996
- ----------------------
RICHARD A. MARTING and Administration (NTC)
/s/ NANCY ZIVITZ Director April 8, 1996
- ----------------------
NANCY ZIVITZ
/s/ ALBERT MILSTEIN Director April 8, 1996
- ----------------------
ALBERT MILSTEIN
</TABLE>
70
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated: April 8, 1996
INCOMNET, INC.
(Registrant)
By: ________________________
MELVYN REZNICK
President and Chief Executive Officer
Pursuant to requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------------------- ------------------------------------ --------------
<S> <C> <C>
_____________________ President, Chief Executive Officer,
- ---------------------
MELVYN REZNICK and Director April 8, 1996
_____________________ Chairman, Board of Directors April 8, 1996
- ---------------------
JOEL W. GREENBERG
_____________________ Vice President of Finance & April 8, 1996
- ---------------------
RICHARD A. MARTING Administration (NTC)
_____________________ Director April 8, 1996
- ---------------------
NANCY ZIVITZ
_____________________ Director April 8, 1996
- ---------------------
ALBERT MILSTEIN
</TABLE>
71
<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT made this day by and between WILLIAM B. BELLIS, SR.,
whose address is 10691 Brentlinger Lane, Louisville, Kentucky 40291,
hereinafter "Lessor"; and RAPID CAST, INC., a Delaware corporation authorized
to do business in, and in good standing in the Commonwealth of Kentucky,
whose address is: 4510-12 Robards Lane, Louisville, Kentucky 40218,
hereinafter "Lessee";
WITNESSETH: That Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, upon the mutual agreements and convenants and subject to the terms
and conditions hereinafter set out, the real estate commonly known as 4610-12
Robards Lane, Louisville, Kentucky 40218, containing approximately 1.3 acres
with improvements thereon, and more particularly described in Exhibit A
annexed hereto, as part hereof.
It is further mutually agreed between the parties as follows:
1. TERM. The term of this lease is a period of five (5) years,
commencing May 31st, 1995 and expiring May 30th, 2000.
2. POSSESSION. Possession shall be delivered to Lessee upon execution
of this lease by both parties. Provided, however, that Lessor reserves the
right of exclusive use of the executive office contained in the leased
premises for a period not to exceed 90 days from the date of execution hereof.
Lessee shall be entitled to a credit against the rent stipulated herein for
the actual number of days during which Lessor occupies the executive office,
calculated on the basis of $8.00 per square foot per year plus Lessor's
prorata share of its utilities. At time of execution of this lease, Lessee
shall pay to Lessor the sum of $8,166.67, being the installment of rent due
May 31st, 1995
3. RENT. Lessee binds itself to pay as fixed rent for the leased
premises the sum of $496,400.00, being at the rate of $98,000.00 annually
for the first three lease years and at the rate of $101,200.00 annually for
the fourth and fifth years, payable in monthly installments on or before the
first day of each month during the term hereof, the first 36 monthly
installments to be in the amount of $8,166.67 per month and the remaining
24 monthly installments to be in the amount of $8,433.33 per month. All
payments of rent shall be made to Lessor at his address stated above, or at
such other place as he may direct in writing from time to time. If any
installment of rent or other sum due from Lessee is not received by Lessor
within five (5) days after such amount is due, Lessee shall pay Lessor a
late charge equal to 10% of such overdue amount. The parties agree that
such late charge represents a fair and reasonable estimate of the cost
Lessor will incur by reason of late payment by Lessee. Lessor's
acceptance of such late charge shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount, or prevent Lessor
from exercising any other right or remedy granted hereunder.
62
<PAGE>
4. USE OF PREMISES. The leased premises shall be used for the
manufacture and distribution of equipment and machinery for the casting of
eyeglass lenses and kindred items, and for training in the use of said
equipment and machinery, and not otherwise. So long as Lessee shall pay
the rent and perform all of the terms of this lease, Lessee shall peaceably
and quietly enjoy the leased premises without any disturbance from Lessor or
any person claiming through Lessor.
5. SURRENDER OF PREMISES. Lessee shall deliver and surrender to
Lessor, possession of the leased premises upon expiration of this lease or
its earlier termination, or at the expiration of any extension or renewal
hereof, broom clean and in as good condition and repair as at the
commencement of the term, or as may have been put by Lessor or Lessee during
the term, ordinary wear and tear and insured damage by fire or the elements
beyond Lessee's control excepted. Lessee shall not, at any time, cause,
permit or suffer any waste, nor erect or permit to be erected or conducted on
the premises any nuisance.
6. DAMAGE OR DESTRUCTION TO PREMISES. In case the premises herein
leased or any part thereof shall, during the term of this lease, be
destroyed or damaged by fire or other casualty, so that the same shall
thereby be rendered unfit for habitation or for the purpose designed, which is
to be determined by the Lessor, then and in that event the Lessor may, at
any time within five (5) days after the happening of such casualty, by
notice in writing to the Lessee or those having estate in the premises,
determine (or cancel) this lease, and unless it be so determined, the rent
hereinbefore stipulated to be paid or a just and proportional part thereof
shall be suspended or abated until the premises shall have been by the Lessor
rebuilt or repaired and put in proper condition for use and habitation, and
the rent shall thereupon recommence immediately after said rebuilding or
repairing shall have been completed, but in any event the rent shall be paid
up to the day of said fire or casualty.
7. ASSIGNMENT AND SUBLEASING. The premises shall not be underlet, or
the term, in whole or in part, assigned, transferred or set over by the act
of the Lessee, by process or operation of law or in any other manner
whatsoever, without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld, and for a violation of this stipulation,
in addition to the forfeiture provided for herein, the rent shall be doubled
while the default continues.
8. TAXES AND INSURANCE. Lessor shall pay all real estate taxes on the
leased premises. Lessee shall pay all taxes on its contents in the leased
premises. Lessor shall pay for all insurance on the improvements. Lessee
shall not at any time use the premises, or permit them to be used in such a
manner as to increase the rate of insurance thereon. Lessee shall pay, as
additional rent, any increase in insurance cost caused by its use of the
premises, and any increase in real estate taxes and/or insurance premiums in
excess of those paid by Lessor during the first lease year.
9. HOLDING OVER. Should the Lessee continue to occupy the premises
after the expiration of said term or any renewal or extension thereof, or
after a forfeiture incurred, whether with or against the consent of the
Lessor, such tenancy shall be in accordance with the terms of this lease
except that Lessee shall be subject to removal at any time.
63
<PAGE>
10. RECOVERY OF PREMISES. Should the Lessor at any time rightfully seek
to recover possession of the premises and be obstructed or resisted therein,
and any litigation thereon ensue, the Lessee shall pay and discharge all
costs and attorney fees and expenses that shall arise from enforcing the
covenants of this indenture by Lessor. After service of notice or the
commencement of a suit, or after final judgment for possession of said
premises, the Lessor may receive and collect any rent due, or that may
accrue, and the payment of said rent shall not waive or affect said notice
or said suit or said judgment or judgments.
11. ACCESS BY LANDLORD. The Lessor shall have free access to the
premises herein leased for the purpose of examining or exhibiting same, or
to make any needful repairs or alteration of said premises which said Lessor
may deem necessary.
12. SIGNS. No signs shall be installed, written or painted upon the
leased premises without the prior written consent of Lessor, and when done by
agreement, Lessee shall, if requested by Lessor, remove at Lessee's expense
all such signs, writings and paintings at the expiration or termination of
the term and repair any damage done by any removal. Lessee may use the
existing monument sign, but shall be responsible for its maintenance and
repair. All signs erected by Lessee shall be at Lessee's expense and shall
comply with any applicable zoning or other regulations.
13. SEVERABILITY. If any one or more of the provisions of this lease are
deemed to be unenforceable, the remaining provisions of the lease shall
remain in full force and effect.
14. TIME. Time is of the essence.
15. MAINTENANCE AND REPAIRS. Lessee shall at all times, at Lessee's
cost: maintain the leased premises and all public areas adjoining the leased
premises, clear of any litter or debris; comply with all laws, ordinances
and requirements of all governmental authorities concerning the leased
premises and concerning the use and occupancy thereof; install any utility
services that Lessee may require, and pay for all telephone, gas, electric,
water, sewer and other utility charges, trash removal, janitorial services,
common area maintenance and lawn and landscape mowing and upkeep; pay for and
maintain the leased premises in good condition and in good order and repair at
all times; pay for and maintain all mechanical, electrical and other
equipment and systems, including the heating and air-conditioning systems,
in good operating condition; maintain public liability insurance, protecting
both Lessor (who shall be made an additional named insured) and Lessee in the
amounts of not less than $1,000,000.00/$1,000,000.OO/$1,000,000.00; carry fire
and casualty insurance on all personal property brought upon the premises by
anyone. Lessee shall indemnify and hold harmless Lessor, Manager, and
their respective agents and employees, from and against any and all
liabilities, damages, claims, demands, costs and expenses of every kind
and nature (including reasonable attorneys fees), including those arising
from any injury or damage to any person (including death), property or
business (a) sustained in or about the Premises, (b) resulting from the
negligence or willful act of Lessee, its employees, servants, agents,
invitees, licensees or sub-tenants, or (c) resulting from the failure of
Lessee to perform any obligation under this Lease; provided, however,
64
<PAGE>
Lessee's obligation under this paragraph shall not apply to injury or damages
resulting from the gross negligence or willful act of Lessor, Manager or
their respective agents or employees. Lessor shall be responsible for all
major repairs, replacement of mechanical systems and building structural
components.
16. IMPROVEMENTS AND ALTERATIONS. Lessee shall not make any structural
change, modification or alteration nor any decoration, without the prior
written consent of Lessor. All fixtures and improvements which may be made
or installed by Lessee shall become the property of Lessor at the termination
of this lease unless Lessor shall request the removal of same, in which event
Lessee shall remove same at Lessee's cost, Lessee to repair any damage caused
thereby
17. STORAGE AND USE. Lessee shall not store or use any combustible or
explosive materials in the leased buildings which may create an unnecessary
hazard or affect the insurance rates on the leased premises. Lessee shall
put, keep, and use the leased premises in full compliance with all federal,
state and local laws, rules and regulations pertaining to the leased
premises, including but not limited to those relating to any hazardous or
toxic substance, material or waste which is or becomes regulated by any
local authority, the State of Kentucky or the United States Government, or
any agency of any of same. Lessee shall indemnify and hold Lessor harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities and attorney fees incurred in connection with any investigation
of site conditions or any clean up, remedial, removal or restoration work
required by any federal, state or local governmental agency or authority,
and losses (including, without limitation, diminution in value or rental
value of the leased premises, sums paid in settlement of claims, attorney
fees, consultants' fees and experts' fees) which Lessor shall incur or
sustain, during or after the expiration of the lease term and any renewals
or extensions thereof, caused by or resulting from any act or omission of
Lessee.
18. WAIVER OF DEFAULT. The waiver of any default committed by Lessee
shall not constitute or be held to be a waiver of any subsequent or other
default.
19. CONDEMNATION. If any part or all of the premises shall be taken
(or acquired) for any public or quasi-public use under power of eminent
domain or like power, or by private purchase in lieu thereof, this lease
shall automatically terminate as to the premises so taken as of the date of
possession by the acquiring authority. In the event of a partial taking,
and the remainder of the premises shall be suitable for occupancy by Lessee,
this lease shall continue as to the remainder and the rent shall be adjusted
on a square foot basis; but if the remainder shall not be suitable for such
occupancy, then this lease shall terminate in its entirety. All awards of
damages for each taking or acquisition shall belong to Lessor, free of any
claim of Lessee.
20. SECURITY DEPOSIT. With the execution of this lease, Lessee has
deposited with Lessor the sum of $8,166.67, which sum shall be retained by
Lessor as security for the faithful performance of obligations and payment of
rents by Lessee, and as security for damage to the property. Lessor may
65
<PAGE>
exhaust any and all other remedies against Lessee before resorting to said
deposit, but nothing herein contained shall require or be deemed to require
Lessor to do so. If the deposit shall not be utilized for any such purposes,
then same shall be returned to Lessee within twenty (20) days after the
expiration of the term of this lease or any renewal or extension thereof.
Lessor shall not be required to pay any interest on said deposit.
21. DEFAULT. If Lessee shall abandon the premises, permit the rent to
become in arrears or violate any other obligation herein, Lessor may, at his
option, cancel this lease or cancel or modify any portion hereof, or enter
the premises as agent of Lessee, by force or otherwise, without being liable
in any way therefor, and relet the premises with or without any furniture or
equipment that may be therein, as agent of Lessee, at such price and upon
such terms, and for such duration of time, as Lessor may determine, and
receive the rent therefor, applying same first to the expenses of retaking
and reletting (including any court costs, attorneys fees and broker's or
realtor's fees) and then to the payment of the rent due hereunder, and if the
rental realized by Lessor shall be less than the expenses of retaking and
reletting and the rent herein provided, Lessee shall pay any deficiency. If
Lessor cancels lease, then Lessee shall be liable for damages for breaching
this agreement for the difference between the rental provided for the canceled
portion of the term and the amount of rent actually received by Lessor during
that period of time, plus all expenses, costs and attorney fees which may be
incurred by Lessor. Any default by Lessee shall automatically cancel and
extinguish all rights of Lessee under paragraphs 23 and 24 hereof.
22. ENTIRE AGREEMENT. Lessee acknowledges that Lessor has made no
representations, agreements, or inducements whatsoever except as may be set
forth in this instrument contains the entire agreement between the parties.
All prior agreements and understandings are superseded by this instrument.
This instrument shall be construed and governed by the laws of the
Commonwealth of Kentucky.
23. OPTION TO EXTEND LEASE. Lessee may extend this lease upon the
expiration of its initial term, provided that this lease is then in full
force and effect and Lessee has at all times fully performed all of its terms
and conditions. The extended term shall be for five (5) years, commencing
on May 1, 2000, and shall be upon the same terms and conditions as the
initial term, except that rent during the extension term, in addition to any
increases in taxes and/or insurance, shall be as follows: the rent for the
first year of the extension term shall be $101,200.00, and the rent for each
year thereafter shall be increased by an amount equal to the increase of each
prior year in the Consumer Price Index, United States City Average, All
Urban Consumers, of the Bureau of Labor Statistics of the United States
Department of Labor. If publication of said index is discontinued, the
parties shall substitute the most closely related Index published by any
agency of the United States Government. Lessee shall exercise the option for
such extended term by delivering written notice thereof to Lessor at least
six (6) months or more prior to the expiration of the initial term.
24. PURCHASE OPTION. Lessee shall have the option during the first
lease year to purchase the leased premises, provided that the lease is then
in full force and effect and that Lessee has at all times fully complied with
all terms and conditions herein. The purchase price shall be $950,000.00,
66
<PAGE>
payable at the closing in cash or in immediately available funds. Lessor
shall convey title by a deed of General Warranty, free and clear of
encumbrances but subject to any easements, restrictions and stipulations of
record affecting the property, zoning laws and regulations and taxes which
may be a lien against the property but which are not due and payable at the
time of closing. All taxes for the year of closing shall be prorated
between the parties on a calendar year basis. If Lessee elects to exercise
such option, it shall deliver written notice thereof to Lessor and the
closing shall take place within ninety (90) days thereafter.
25. BROKER'S COMMISSION. Lessor and Lessee agree, represent and
acknowledge that Lane Consultants and Harry K. Moore Company are the only
brokers with whom they have dealt in connection with the leased premises.
Lessor shall be responsible only for the payment of all brokerage commissions
in connection with the original term of this lease and in connection with any
sale pursuant to paragraph 24 hereof.
26. MISCELLANEOUS
26.1 The captions of this lease are for convenience only, and are not
a part of the lease, and do not in any way limit or amplify its terms and
provisions.
26.2 The provisions of this lease shall be binding on and inure to the
benefit of the parties, their legal representatives, successors and
permitted assigns.
26.3 This lease may not be changed orally, but only by an agreement
in writing and signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
26.4 If any provision of this lease shall be declared invalid or
unenforceable, the remainder of this lease shall continue in full force and
effect.
26.5 This lease expresses the mutual intent of the parties, and no
presumption or burden of proof shall arise favoring or disfavoring either
party by virtue of the authorship of any of the provisions herein.
IN TESTIMONY WHEREOF, witness the signatures of the parties hereto,
duly authorized thereunto, this 31st day of May, 1995.
/s/ WILLIAM B. BELLIS, SR.
WILLIAM S. BELLIS, SR, Lessor
RAPID CAST, INC. - Lessee
By /s/ Larry Joel
Title: President - Chairman
67
<PAGE>
GUARANTY
To induce William B. Bellis, Sr., as Lessor, to enter into the
foregoing Lease, to which this Guaranty is attached, and in consideration
thereof, Larry Joel, O.D. ("Guarantor"), a resident of the State of
Kentucky, whose address is 4510 Robards Lane, Louisville, Kentucky, 40218,
guarantees the punctual payment and prompt performance of any and all
indebtedness and obligations of any kind of Lessee under the foregoing Lease,
together with interest thereon and all attorneys fees, costs and expenses of
collection or other enforcement of the provisions of this Lease incurred by
Lessor. Guarantor hereby expressly waives notice of any default by Lessee
under the foregoing Lease. Guarantor shall remain bound under this Guaranty
notwithstanding any extension of time of performance to, the granting of any
other indulgence to, or any other modification including any increase, of any
obligation of Lessee, and the acceptance, alteration or release of any
security. This is a continuing, indivisible guarantee by Guarantor of every
debt and obligation of Lessee under the foregoing Lease, whenever incurred.
This Guaranty shall apply to any renewal or extension of the foregoing Lease.
This Guaranty shall be directly enforceable against Guarantor without
resorting to any party otherwise liable and without exhausting any and all
remedies against them. Any litigation concerning this Guaranty shall only
be brought in the State of Kentucky, and Guarantor hereby appoints the
Secretary of State of Kentucky as a process agent regarding any such
litigation. Provided, however, that in the event Rapid Cast, Inc. Is able
to institute a public stock offering that is successful in raising a minimum
of $5,000,000, in capital or its retained earnings exceed $5,000,000, then
upon the happening of said event, this guaranty shall become void and of no
further effect. Rapid Cast, Inc. shall certify to Lessor the occurrence of
either of the above and shall provide such documentation as Lessor may require
to verify the occurrence.
IN TESTIMONY WHEREOF, witness the signature of the Guarantor by its duly
authorized representative, this 31st day of May, 1995.
/s/ Larry Joel
Larry Joel, O.D.
68
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from consolidated
balance sheet and consolidated statement of operations and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 1,644,968
<SECURITIES> 0
<RECEIVABLES> 15,434,092
<ALLOWANCES> 3,154,241
<INVENTORY> 1,646,829
<CURRENT-ASSETS> 17,632,333
<PP&E> 11,125,912
<DEPRECIATION> 1,979,858
<TOTAL-ASSETS> 74,105,629
<CURRENT-LIABILITIES> 16,191,818
<BONDS> 0
<COMMON> 60,883,892
0
0
<OTHER-SE> (18,335,836)
<TOTAL-LIABILITY-AND-EQUITY> 74,105,629
<SALES> 86,564,917
<TOTAL-REVENUES> 86,564,917
<CGS> 57,948,207
<TOTAL-COSTS> 83,874,963
<OTHER-EXPENSES> 1,002,283
<LOSS-PROVISION> 4,124,589
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 957,044
<INCOME-TAX> 100,501
<INCOME-CONTINUING> 1,366,025
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,366,025
<EPS-PRIMARY> .11
<EPS-DILUTED> .11
</TABLE>
EXHIBIT 3.2
INCOMNET, INC.
AMENDMENT TO BYLAWS REGARDING DIRECTORS
The Board of Directors recommends that the Bylaws of the Corporation be
amended in such a way that the Board of Directors consists of not less than
four (4) nor more than nine (9) directors, with no fixed number of directors.
At present, the Bylaws state that the Board of Directors consists of not less
than five (5) nor more than nine (9) directors, and has been fixed by the
Board of Directors at five (5). The proposed Amendment cannot be passed if
more than 16.67% of the shareholders vote against the amendment.
The Board of Directors proposes that Section 2 of the Bylaws of Incomnet, Inc.
be amended to read as follows:
Section 2. NUMBER OF DIRECTORS. The number of directors of the Corporation
shall not be less than four (4) nor more than nine (9). The exact number of
directors shall be unspecified until changed, within the limits specified
above, by a Bylaw amending this Section 2, duly adopted by the Board of
Directors or by the Shareholders. Such indefinite number of directors may be
changed, or a definite number fixed with provision for a specific number, by
a duly adopted amendment to the Articles of Incorporation or by an amendment
to this Bylaw duly adopted by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote; provided, however that
an amendment reducing the number or the minimum number of directors to a
number less than four cannot be adopted if the voters cast against its
adoption at a meeting of the shareholders, or the shares not consenting in
the case of action by written consent, are equal to more than 16.66% of the
outstanding shares entitled to vote. No amendment may change the stated
maximum number of authorized directors to a number greater than two times the
stated number of directors minus one.
The present Section 2 of the Bylaws of Incomnet reads as follows:
Section 2. NUMBER OF DIRECTORS. The number of directors of the corporation
shall not be less than five (5) nor more than nine (9). The exact number of
directors shall be five (5) until changed, within the limits specified above,
by a Bylaw amending this Section 2, duly adopted by the Board of Directors or
by the Shareholders. Such indefinite number of directors may be changed, or
a definite number fixed with provision for a specific number, by a duly
adopted amendment to the Articles of Incorporation or by an amendment to this
Bylaw duly adopted by the vote or written consent of holders of a majority of
the outstanding shares entitled to vote; provided, however that an amendment
reducing the number or the minimum number of directors to a number less than
four cannot be adopted if the voters cast against its adoption at a meeting
of the shareholders, or the shares not consenting in the case of action by
written consent, are equal to more than 16.66% of the outstanding shares
entitled to vote. No amendment may change the stated maximum number of
authorized directors to a number greater than two times the stated number of
directors minus one.
61
<PAGE>
Schedule II
<TABLE>
<CAPTION>
INCOMNET, INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
DECEMBER 31, 1995 AND 1994
Column A Column B Column C Column D Column E
----------- ----------- -------------- ------------ ----------
Additions
-----------
(2)
Balance at Charged to Charged to (1) Balance
beginning costs and other accounts Deductions at end
Classification of period expenses - describe - describe of period
- -------------------- ----------- ----------- -------------- ------------ ----------
<S> <C> <C> <C> <C> <C>
Allowance for
doubtful accounts:
December 31, 1994 $ 3,263,659 $ 4,576,237 -- $ 4,309,679 $3,530,217
December 31, 1995 $ 3,530,217 $ 7,899,168 -- $ 7,842,435 $3,586,950
<FN>
(1) Represents write-offs of specific balances determined to be uncollectible.
(2) Balance at December 31, 1995 includes $487,678 of other allowances, such as reserves
for marketable securities, inventory and notes receivable.
</TABLE>
60
<PAGE>
<TABLE>
<CAPTION>
Exhibit 21
INCOMNET, INC.
SUBSIDIARIES OF THE REGISTRANT
MARCH 27, 1996
Percentage
of voting
State or other jurisdiction of securities
-----------
Name incorporation or organization owned
- ---------------------- -----------
<S> <C> <C>
Incomnet India Limited India 32%
Rapid Cast, Inc. New Jersey 51%
National Telephone &
Communications, Inc. Nevada 100%
</TABLE>
69
<PAGE>
