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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 27, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 0-19360
VERILINK CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 94-2857548
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
145 BAYTECH DRIVE, SAN JOSE, CALIFORNIA 95134
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(Address of principal executive offices) (Zip Code)
408-945-1199
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or 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 .
The number of shares outstanding of the issuer's common stock as of February 5,
1999 was 14,044,860.
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INDEX
VERILINK CORPORATION
FORM 10-Q
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE NO.
- ------- --------------------- --------
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Statements of Operations for the 3
three months and six months ended December 27, 1998
and December 28, 1997
Condensed Consolidated Balance Sheets as of 4
December 27, 1998 and June 28, 1998
Condensed Consolidated Statements of Cash Flows for 5
the six months ended December 27, 1998 and December 28, 1997
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of 9
Financial Condition and Results of Operations
Item 3. Quantitative and Qualitative Disclosures About Market Risk 19
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 20
Item 6. Exhibits and Reports on Form 8-K 20
SIGNATURES 21
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VERILINK CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------------- ---------------------------
December 27, December 28, December 27, December 28,
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 17,107 $ 9,518 $ 34,184 $ 19,531
Cost of sales 8,453 4,879 16,761 9,888
-------- -------- -------- --------
Gross profit 8,654 4,639 17,423 9,643
Operating expenses:
Research and development 3,401 2,699 6,691 5,562
Selling, general and administrative 5,560 3,843 10,487 7,556
In-process research and development 3,330 -- 3,330 --
-------- -------- -------- --------
Total operating expenses 12,291 6,542 20,508 13,118
Loss from operations (3,637) (1,903) (3,085) (3,475)
Interest and other income, net 409 508 968 1,082
-------- -------- -------- --------
Loss before provision for income taxes (3,228) (1,395) (2,117) (2,393)
Provision for (benefit from) income taxes -- (520) 389 (889)
-------- -------- -------- --------
Net loss $ (3,228) $ (875) $ (2,506) $ (1,504)
======== ======== ======== ========
Net loss per share - Basic $ (0.23) $ (0.06) $ (0.18) $ (0.11)
======== ======== ======== ========
Net loss per share - Diluted $ (0.23) $ (0.06) $ (0.18) $ (0.11)
======== ======== ======== ========
Shares used in per share computations - Basic 13,929 13,686 13,918 13,660
======== ======== ======== ========
Shares used in per share computations - Diluted 13,929 13,686 13,918 13,660
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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VERILINK CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
December 27, June 28,
1998 1998
------- -------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $14,525 $16,304
Short-term investments 15,225 26,111
Accounts receivable, net 11,052 5,992
Inventories 6,272 4,900
Deferred tax assets 1,532 1,532
Other current assets 371 342
------- -------
Total current assets 48,977 55,181
Property and equipment, net 8,426 7,047
Deferred tax assets 436 436
Intangible assets, net 6,145 --
Other assets 2,127 1,164
------- -------
Total assets $66,111 $63,828
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,733 $ 2,527
Accrued expenses 10,971 6,747
Income taxes payable 586 744
------- -------
Total liabilities 14,290 10,018
Stockholders' equity 51,821 53,810
------- -------
Total liabilites and stockholders' equity $66,111 $63,828
======= =======
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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VERILINK CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands, unaudited)
<TABLE>
<CAPTION>
Six Months Ended
December 27, December 28,
1998 1997
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (2,506) $ (1,504)
Adjustments to reconcile net loss to net cash provided by
(used in) operating activities:
Depreciation and amortization 1,210 1,101
In-process research and development 3,330 --
Deferred compensation related to stock options 28 76
Deferred income taxes -- (883)
Accrued interest on notes receivable from stockholders (59) (143)
Changes in assets and liabilities:
Accounts receivable (2,428) 2,616
Inventories 338 (2,243)
Other assets (967) (658)
Accounts payable (748) 1,167
Accrued expenses 422 134
Income tax payable (159) 437
-------- --------
Net cash provided by (used in) operating activities (1,539) 100
-------- --------
Cash flows from investing activities:
Purchases of property and equipment (1,660) (1,157)
Purchases of short-term investments -- (14,167)
Maturities of short-term investments 10,886 3,452
Purchase of TxPort, Inc. (10,000) --
-------- --------
Net cash used in investing activities (774) (11,872)
-------- --------
Cash flows from financing activities:
Proceeds from issuance of common stock, net 535 418
-------- --------
Effect of exchange rate changes on cash (1) --
-------- --------
Net decrease in cash and cash equivalents (1,779) (11,354)
Cash and cash equivalent at beginning of period 16,304 36,596
-------- --------
Cash and cash equivalent at end of period $ 14,525 $ 25,242
======== ========
Supplemental disclosures:
Cash paid for (refund from) income taxes $ 495 $ (455)
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
NOTE 1. Interim Financial Statements
The accompanying unaudited interim condensed consolidated financial
statements of Verilink Corporation (the "Company") have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, these statements include all
adjustments, consisting of normal and recurring adjustments, considered
necessary for a fair presentation of the results for the periods presented. The
results of operations for the periods presented are not necessarily indicative
of results which may be achieved for the entire fiscal year ending June 27,
1999. The unaudited interim condensed consolidated financial statements should
be read in conjunction with the financial statements and notes thereto contained
in the Company's Annual Report on Form 10-K for the fiscal year ended June 28,
1998 as filed with the Securities and Exchange Commission.
NOTE 2. Inventories
Inventories are stated at the lower of cost, determined using the first-in,
first-out method, or market. Inventories consisted of the following (in
thousands):
<TABLE>
<CAPTION>
December 27, June 28,
1998 1998
------ ------
<S> <C> <C>
Raw materials $3,380 $2,313
Work in process 986 926
Finished goods 1,906 1,661
------ ------
$6,272 $4,900
====== ======
</TABLE>
NOTE 3. Earnings Per Share
The Company adopted Statement of Financial Accounting Standards No. 128,
"Earnings Per Share" ("SFAS 128") during fiscal 1998. The statement simplifies
the standards for computing earnings per share (EPS) previously defined in
Accounting Principles Board Opinion No. 15, "Earnings Per Share" (APB 15) and
makes them comparable to international EPS standards. SFAS 128 requires
presentation of both Basic EPS and Diluted EPS on the face of the income
statement. Basic EPS, which replaces primary EPS, is computed by dividing net
income available to common stockholders (numerator) by the weighted average
number of common shares outstanding (denominator) during the period. Unlike the
computation of primary EPS, Basic EPS excludes the dilutive effect of stock
options. Diluted EPS replaces fully diluted EPS and gives effect to all dilutive
potential common shares outstanding during a period. In computing Diluted EPS,
the average price for the period is used in determining the number of shares
assumed to be purchased from exercise of stock options rather than the higher of
the average or ending price as used in the computation of fully diluted EPS.
Earnings per share for all periods presented have been restated to conform to
the SFAS 128 requirements.
The following is a reconciliation of the numerators and denominators of the
Basic and Diluted EPS computations for the periods presented below:
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<TABLE>
<CAPTION>
(in thousands, except per share amounts)
------------------------------------------------------------
Three Months Ended Six Months Ended
--------------------------- ----------------------------
December 27, December 28, December 27, December 28,
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net loss [numerator]: $(3,228) $ (875) $(2,506) $ (1,504)
======= ====== ======= ========
Shares Calculation [denominator]:
Weighted shares outstanding - Basic 13,929 13,686 13,918 13,660
======= ====== ======= ========
Weighted shares outstanding - Diluted 13,929 13,686 13,918 13,660
======= ====== ======= ========
Net loss per share - Basic $ (0.23) $(0.06) $ (0.18) $ (0.11)
======= ====== ======= ========
Net loss per share - Diluted $ (0.23) $(0.06) $ (0.18) $ (0.11)
======= ====== ======= ========
</TABLE>
Options to purchase 2,733,557 shares of common stock at prices ranging from
$0.50 to $10.38 per share were outstanding at December 27, 1998 but were not
included in the computation of diluted EPS because inclusion of such options
would have been antidilutive.
NOTE 4. Recent Accounting Pronouncements
In June, 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 130 ("SFAS 130"), "Reporting
Comprehensive Income". SFAS 130 establishes standards for reporting
comprehensive income and its components in a financial statement that is
displayed with the same prominence as other financial statements. Comprehensive
income, as defined, includes all changes in equity (net assets) during a period
from non-owner sources. Examples of items to be included in comprehensive
income, which are excluded from net income, include foreign currency translation
adjustments and unrealized gain/loss on available-for-sale securities. No
comprehensive income information has been presented as the impact of the
disclosure required by SFAS 130 is immaterial to the financial statements of the
Company.
In June, 1997, the FASB issued Statement of Financial Accounting Standards
No. 131 ("SFAS 131"), "Disclosures about Segments of an Enterprise and Related
Information". This statement establishes standards for the way companies report
information about operating segments in annual financial statements. It also
establishes standards for related disclosures about products and services,
geographic areas, and major customers. The disclosures prescribed by SFAS 131
are effective for the fiscal year ending June 27, 1999 but are not required for
interim financial statements in 1999.
NOTE 5. Related Party Transactions
In September 1998, the Company began occupying an additional 16,000 square
feet of space at 161 Nortech Drive leased from Baytech Associates ("Baytech") in
accordance with an agreement currently under negotiation. Baytech is owned by
two stockholders who are Officers and Directors of the Company. The Company has
agreed to loan Baytech funds for leasehold improvements and rent obligations at
161 Nortech Drive in consideration of certain lease concessions made by Baytech
to the Company. As of January 21, 1999, $245,000 was borrowed by Baytech against
this facility. The loan to Baytech is evidenced by a promissory note bearing
interest at 8% and will be payable out of the net lease proceeds received by
Baytech from leasing a portion of the Nortech building.
In September 1998, the Company provided one if its officers with a loan
facility not to exceed $1,000,000 at an interest rate of 6% per annum. As of
February 5, 1999, $964,000 was borrowed against that facility. All loans made
pursuant to the facility are due on or before December 31, 1999.
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In October 1998, the Company guaranteed $500,000 in borrowings made by one
of its officers by pledging as collateral $500,000 on deposit with the lending
institution (CivicBank of Commerce) and agreed to provide that officer with a
loan facility not to exceed $3,000,000, including the guaranty. All loans made
pursuant to this loan facility will be due on or before December 31, 1999. This
loan facility will be secured by a pledge of Verilink common stock having a fair
market value equal to at least twice the principal amount of the borrowings
under the facility.
NOTE 6. Acquisitions
On November 16, 1998, the Company completed the acquisition of TxPort, Inc.
("TxPort"), from Acme-Cleveland Corporation. TxPort is a manufacturer of high
speed voice and data communications products. Under the terms of the agreement,
the Company paid $10,000,000 in exchange for 100% of the issued and outstanding
shares of TxPort's common stock. The purchase price was determined in an
arms-length transaction and paid in cash out of the Company's working capital.
The TxPort acquisition has been accounted for as a purchase. The total
purchase price of approximately $10,500,000 (including $4,256,000 for
liabilities assumed or incurred) was allocated, based on an independent
appraisal, to the fair value of the assets acquired, including $5,193,000 to
tangible assets acquired, $3,330,000 to in-process research and development, and
$3,450,000 to identified intangible assets. The remaining $2,783,000 was
allocated to goodwill.
The following unaudited pro forma financial information is presented to
give effect to the purchase as if the transaction had occurred as of the
beginning of each of the periods presented. The pro forma information gives
effect of certain adjustments, including amortization of goodwill and other
intangibles based on the value allocated to assets acquired in the purchase.
In-process research and development costs of $3,330,000, which were written off
immediately after the purchase was completed, and all non-recurring and related
party transactions are excluded from the results of both periods presented.
The pro forma information is presented for illustrative purposes only
and does not purport to be indicative of the operating results that would have
occurred had the acquisition been effected for the periods indicated nor is it
indicative of the future operating results of the Company.
<TABLE>
<CAPTION>
(in thousands, except per share amounts)
----------------------------------------
Six months ended
----------------------------
December 27, December 28,
1998 1997
---------- ----------
<S> <C> <C>
Pro forma net sales $ 42,044 $ 32,291
Pro forma net income (loss) $ 158 $ (2,167)
Pro forma loss per share - Basic $ 0.01 $ (0.16)
Pro forma loss per share - Diluted $ 0.01 $ (0.16)
</TABLE>
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
Forward-looking Statements.
This Report on Form 10-Q contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, including statements regarding the Company's
beliefs, expectations, intentions, hopes, plans and goals regarding the future
and statements regarding the Company's research and development expenditures,
selling, general and administrative expenditures, anticipated capital
expenditures, future capital requirements, adequacy of facilities, and Year 2000
assessment and remediation efforts. Actual results could differ from those
projected in any forward-looking statements for the reasons detailed below and
in the Sections entitled "Factors Affecting Future Results" and other sections
of this Report on Form 10-Q. The forward-looking statements included on this
Form 10-Q are based on information available to the Company as of the date of
this Report on Form 10-Q, and the Company assumes no obligation to update the
forward-looking statements, or to update the reasons why actual results could
differ from those projected in the forward-looking statements. Investors should
also consult the risk factors listed from time to time in the Company's Reports
on Form 10-K and Annual Report to Stockholders.
RESULTS OF OPERATIONS
Overview
Verilink Corporation develops, manufactures and markets integrated access
products for telecommunications network service providers and corporate end
users. Verilink's integrated network access products are used by network service
providers such as inter-exchange and local exchange carriers, and providers of
Internet, personal communications and cellular services to provide seamless
connectivity and interconnect for multiple traffic types on wide area networks
("WANs"). Verilink designed the Access System 2000 with modular hardware and
software to enable its customers to access increased network capacity and to
adopt new communications services in a cost-effective manner. The Access System
2000 provides integrated access to low speed services, fractional T1/E1
services, and T1, E1, T3, and frame relay services.
On November 16, 1998, the Company completed its acquisition of TxPort, Inc.
from Acme-Cleveland Corporation. The acquisition was accounted for using the
purchase method of accounting. Accordingly, the results of operations of TxPort,
since the date of acquisition, are included in the Company's second quarter and
year to date results for fiscal 1999.
The Company is currently in the process of evaluating its information
technology infrastructure for year 2000 compliance. The Company believes that
its current product offerings are year 2000 compliant. See "Factors Affecting
Future Results."
The Company believes that period-to-period comparisons of its financial
results are not necessarily meaningful and should not be relied upon as an
indication of future performance. In addition, the Company's results of
operations may fluctuate from period to period in the future.
The following table presents the percentages of total sales represented by
certain line items from the Condensed Consolidated Statements of Operations for
the periods indicated.
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<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
--------------------------- --------------------------
December 27, December 28, December 27, December 28,
1998 1997 1998 1997
------------ ----------- ------------ -----------
<S> <C> <C> <C> <C>
Sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 49.4 51.3 49.0 50.6
------ ------ ------ ------
Gross margin 50.6 48.7 51.0 49.4
------ ------ ------ ------
Operating expenses:
Research and development 19.9 28.4 19.6 28.5
Selling, general and administrative 32.5 40.4 30.7 38.7
In-process research and development 19.5 -- 9.7 --
------ ------ ------ ------
Total operating expenses 71.9 68.8 60.0 67.2
------ ------ ------ ------
Loss from Operations (21.3) (20.0) (9.0) (17.8)
Interest and other income, net 2.4 5.3 2.8 5.5
------ ------ ------ ------
Loss before provision for income taxes (18.9) (14.7) (6.2) (12.3)
Provision for (benefit from) income taxes -- (5.5) 1.1 (4.6)
------ ------ ------ ------
Net loss (18.9)% (9.2)% (7.3)% (7.7)%
====== ====== ====== ======
</TABLE>
Sales. Net sales for the three months ended December 27, 1998 increased
approximately 80% to $17,107,000 from $9,518,000 for the comparable period in
the prior year. Net sales at $17,107,000 remained relatively flat compared to
the previous quarters' sales of $17,078,000 of the current fiscal year. Net
sales for the six months ended December 27, 1998 increased 75% to $34,184,000
from $19,531,000 during the same period of the prior fiscal year. The increase
from the corresponding period in the prior year resulted primarily from higher
demand for the AS 2000 product line and sales from TxPort. Although demand for
the AS 2000 product line declined from the previous quarter, the reduction in
sales was offset by sales by TxPort. See Note 6 of Notes to Financial Section in
this Form 10-Q. Net sales to the Company's five largest customers as a
percentage of total sales were approximately 60%, 72% and 49% for the three
months ended December 27, 1998, three months ended September 27, 1998 and the
three months ended December 28, 1997, respectively.
Gross Margin. Gross margin remained relatively unchanged at 51% of net sales for
the three months ended December 27, 1998 compared to the previous sequential
quarter ended September 27, 1998. Gross margin increased from approximately 49%
during the comparable period in the prior year primarily due to reduced
manufacturing variances as a percentage of sales and to reduced direct material
costs.
Research and Development. Research and development expenditures increased 26% to
$3.4 million during the three months ended December 27, 1998 compared to the
comparable period in the prior year, and decreased as a percentage of sales from
28% to 20%. Research and development expenses increased 20% to approximately $7
million during the six months ended December 27, 1998 compared to the comparable
period in the prior year, and as a percentage of net sales, decreased to
approximately 20% from 28%. The increase in both periods in absolute dollars is
due to an increase in personnel-related costs and headcount as a result of the
TxPort acquisition. The decrease as a percentage of net sales in both periods is
a result of an increase in engineering materials and personnel related expenses
spread over higher sales volume. The Company believes that a significant level
of investment in product development is required to remain competitive and, will
vary over time as a percentage of sales.
Selling, general and administrative. Selling, general and administrative
expenses increased 45% to approximately $5.6 million during the three months
ended December 27, 1998 compared to the corresponding period in the prior year,
and decreased as a percentage of sales from 40% to 33%. Selling, general and
administrative expenses increased 39% to approximately $10 million for the six
months ended December 27, 1998 compared to the comparable period in the prior
year, and as a percentage of sales, decreased from 39% to 31%. The increase in
spending over the corresponding periods in the prior year is primarily due to an
increase in expenses as a result of the TxPort acquisition, an increase in
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costs to support the Enterprise Resource Planning implementation ("ERP") and an
increase in selling expenses to support the increase in sales. The Company
expects selling, general and administrative expense to increase in the future as
a result of increased expenses associated with the acquisition, larger marketing
and support staffs, as well as increased administrative expenses for information
technology costs. The Company expects such expenses will vary over time as a
percentage of sales.
In-process research and development. As a result of the TxPort acquisition, the
Company incurred a one time charge of $3.3 million related to in-process
research and development for which technological feasibility was not achieved at
the time of the acquisition. See Note 6 of Notes to Financial Section in this
Form 10-Q for additional discussion.
Interest and Other Income. Net interest and other income decreased approximately
$100,000 during the three months ended December 27, 1998 from the previous three
month period ended September 27, 1998 due to a lower cash and cash and
equivalents balance as a result of the TxPort acquisition.
Provision for Income Taxes. Based on the estimated taxable income for fiscal
1999, the Company elected not to record a tax benefit or provision for income
taxes for the quarter ended December 27, 1998. The provision for income taxes
for the quarter ended September 27, 1998 reflects 35% of taxable income. For the
periods ended December 28, 1997, the Company recorded a 37% benefit from income
taxes reflecting available net operating loss carry-back capacity and expected
tax credits.
LIQUIDITY AND CAPITAL RESOURCES
On December 27, 1998, the Company's principal sources of liquidity included
$29.7 million of cash and cash equivalents, and short-term investments.
During the six-month period ended December 27, 1998, the Company used
approximately $1.5 million for operating activities, which compared to the
$100,000 generated for the six-month period ended December 28, 1997. Net cash
used in operating activities was primarily due to the loss incurred through the
six months ended December 27, 1998, acquisition related activities, and an
increase in accounts receivable as a result of the acquisition and large
shipments occurring at the end of the quarter.
Cash used in investing activities was approximately $700,000 for the
six-month period ended December 27, 1998, as compared to approximately $12
million used in investing activities for the six-month period ended December 28,
1997. The decrease in funds used in investing activities is primarily a result
of the maturity of short-term investments being reinvested in cash and cash
equivalents, offset by the purchase of TxPort for $10.5 million. The Company
invested approximately $1.7 million in property and equipment during the first
six months of fiscal 1999, which is an increase of approximately $500,000 from
the comparable period in the prior year. The Company anticipates significant
capital expenditures for fiscal 1999 which are anticipated to be used for ERP
software applications and implementation, test equipment, design tools, and new
manufacturing capability, although no assurance can be given that additional
expenditures will not be needed. In mid-September, the Company began occupying
an additional 16,000 square feet of office space. The Company expects its
current facilities to be adequate for its needs through fiscal 1999.
While the Company believes that its existing cash and cash equivalents,
short-term investments and anticipated cash flows from operations will satisfy
the Company's near-term cash needs, the Company continues to investigate the
possibility of generating financial resources through committed credit
agreements, technology or manufacturing partnerships, equipment financing, and
offerings of debt and equity securities.
FACTORS AFFECTING FUTURE RESULTS
As described by the following factors, past financial performance should not
be considered to be a reliable indicator of future performance, and investors
should not use historical trends to anticipate results or trends in future
periods.
Customer Concentration. A small number of customers continue to account for a
majority of the Company's sales. In the quarter ended December 27, 1998, Nortel,
Compuserve and MCI accounted for 25%, 11% and 11% of the Company's sales,
respectively, and sales to the Company's top five customers accounted for 60% of
the Company's
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sales. In fiscal 1998, Nortel, MCI, Qualcomm and CompuServe accounted for 20%,
16%, 12% and 11% of the Company's sales, respectively, and sales to the
Company's top five customers accounted for 64% of the Company's sales. In fiscal
1997, Nortel, MCI, Qualcomm and CompuServe accounted for 22%, 20%, 9% and 11% of
the Company's sales, respectively, and the Company's top five customers
accounted for 67% of the Company's sales. In fiscal 1996, MCI and CompuServe
accounted for 29% and 18% of the Company's sales, respectively, and the
Company's top five customers accounted for 64% of sales. Other than Nortel, MCI,
Qualcomm and CompuServe, no customer accounted for more than 10% of the
Company's sales in fiscal years 1998, 1997, or 1996. There can be no assurance
that the Company's current customers will continue to place orders with the
Company, that orders by existing customers will continue at the levels of
previous periods, or that the Company will be able to obtain orders from new
customers. Certain customers of the Company have been or may be acquired by
other existing customers. The impact of such acquisitions on sales to such
customers is uncertain, but there can be no assurance that such acquisitions
will not result in a reduction in sales to those customers. In addition, such
acquisitions could result in further concentration of the Company's customers.
The Company has in the past experienced significant declines in sales it
believes were in part related to orders being delayed or cancelled as a result
of pending acquisitions relating to its customers. There can be no assurance
future merger and acquisition activity among the customers will not have a
similar adverse affect on the Company's sales and results of operations. The
Company's customers are typically not contractually obligated to purchase any
quantity of products in any particular period. Product sales to major customers
have varied widely from period to period. In some cases, major customers have
abruptly terminated purchases of the Company's products. Loss of, or a material
reduction in orders by, one or more of the Company's major customers would
materially adversely affect the Company's business, financial condition and
results of operations. See "Competition" and "Fluctuations in Quarterly
Operating Results".
Fluctuations in Quarterly Operating Results. The Company's sales are subject
to quarterly and annual fluctuations due to a number of factors resulting in
more variability and less predictability in the Company's quarter-to-quarter
sales and operating results. For example, sales to MCI, Nortel, Qualcomm and
CompuServe have varied between quarters by as much as $4.0 million and were the
major contributor to the variability of quarterly sales in 1998. Most of the
Company's sales are in the form of large orders with short delivery times. The
Company's ability to affect and judge the timing of individual customer orders
is limited. The Company has experienced large fluctuations in sales from
quarter-to-quarter due to a wide variety of factors, such as delay, cancellation
or acceleration of customer projects, and other factors discussed below. The
Company's sales for a given quarter may depend to a significant degree upon
planned product shipments to a single customer, often related to specific
equipment deployment projects. The Company has experienced both acceleration and
slowdown in orders related to such projects, causing changes in the sales level
of a given quarter relative to both the preceding and subsequent quarters.
Delays or lost sales can be caused by other factors beyond the Company's
control, including late deliveries by other vendors of components in a
customer's system, changes in implementation priorities, slower than anticipated
growth in demand for the services that the Company's products support and delays
in obtaining regulatory approvals for new services. Delays and lost sales have
occurred in the past and may occur in the future. Operating results in recent
periods have been adversely affected by delays in receipt of significant
purchase orders from customers. The Company believes that recent period sales
have been adversely impacted by merger activities at some of its top customers.
In addition, the Company has in the past experienced delays as a result of the
need to modify its products to comply with unique customer specifications. These
and similar delays or lost sales could materially adversely affect the Company's
business, financial condition and results of operations. See "Customer
Concentration" and "Dependence on Component Availability and Key Suppliers".
The Company's backlog at the beginning of each quarter typically is not
sufficient to achieve expected sales for that quarter. To achieve its sales
objectives, the Company is dependent upon obtaining orders in a quarter for
shipment in that quarter. Furthermore, the Company's agreements with its
customers typically provide that they may change delivery schedules and cancel
orders within specified timeframes, typically up to 30 days prior to the
scheduled shipment date, without significant penalty. The Company's customers
have in the past built, and may in the future build, significant inventory in
order to facilitate more rapid deployment of anticipated major projects or for
other reasons. Decisions by such customers to reduce their inventory levels
could lead to reductions in purchases from the Company. These reductions, in
turn, could cause fluctuations in the Company's operating results and could have
an
12
<PAGE> 13
adverse effect on the Company's business, financial condition and results of
operations in the periods in which the inventory is reduced.
The Company's industry is characterized by declining prices of existing
products, and therefore continual improvement of manufacturing efficiencies and
introduction of new products and enhancements to existing products are required
to maintain gross margins. In response to customer demands or competitive
pressures, or to pursue new product or market opportunities, the Company may
take certain pricing or marketing actions, such as price reductions, volume
discounts, or provision of services at below-market rates. These actions could
materially and adversely affect the Company's operating results.
Operating results may also fluctuate due to factors such as the timing of new
product announcements and introductions by the Company, its major customers or
its competitors, delays in new product introductions by the Company, market
acceptance of new or enhanced versions of the Company's products, changes in the
product or customer mix of sales, changes in the level of operating expenses,
competitive pricing pressures, the gain or loss of significant customers,
increased research and development and sales and marketing expenses associated
with new product introductions, and general economic conditions. All of the
above factors are difficult for the Company to forecast, and these or other
factors can materially adversely affect the Company's business, financial
condition and results of operations for one quarter or a series of quarters. The
Company's expense levels are based in part on its expectations regarding future
sales and are fixed in the short term to a large extent. Therefore, the Company
may be unable to adjust spending in a timely manner to compensate for any
unexpected shortfall in sales. Any significant decline in demand relative to the
Company's expectations or any material delay of customer orders could have a
material adverse effect on the Company's business, financial condition and
results of operations. There can be no assurance that the Company will be able
to sustain profitability on a quarterly or annual basis. In addition, the
Company has had, and in some future quarter may have operating results below the
expectations of public market analysts and investors. In such event, the price
of the Company's Common Stock would likely be materially and adversely affected.
See "Potential Volatility of Stock Price".
The Company's products are covered by warranties and the Company is subject
to contractual commitments concerning its products. If unexpected circumstances
arise such that the product does not perform as intended and the Company is not
successful in resolving product quality or performance issues, there could be an
adverse effect on the Company's business, financial condition and results of
operations. Also see "Year 2000 Compliance".
Potential Volatility of Stock Price. The trading price of the Company's
Common Stock could be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results, announcements of
technological innovations or new products by the Company or its competitors,
developments with respect to patents or proprietary rights, general conditions
in the telecommunication network access and equipment industries, changes in
earnings estimates by analysts, or other events or factors. In addition, the
stock market has experienced extreme price and volume fluctuations, which have
particularly affected the market prices of many technology companies and which
have often been unrelated to the operating performance of such companies.
Company-specific factors or broad market fluctuations may materially adversely
affect the market price of the Company's Common Stock. The Company has
experienced significant fluctuations in its stock price and share trading volume
since its initial public offering in June 1996. There is no assurance that such
fluctuations will not continue.
Dependence on Recently Introduced Products and Products Under Development.
The Company's future results of operations are highly dependent on market
acceptance of existing and future applications for both the Company's Access
System 2000 and the Access System 3000 product lines. The Access System 2000
product line represented approximately 86% of sales in fiscal 1998 and 80% of
sales in fiscal 1997. Market acceptance of both the Company's current and future
product lines is dependent on a number of factors, not all of which are in the
Company's control, including the continued growth in the use of bandwidth
intensive applications, continued deployment of new telecommunications services,
market acceptance of integrated access devices in general, the availability and
price of competing products and technologies, and the success of the Company's
sales efforts. Failure of the Company's products to achieve market acceptance
would have a material adverse effect on the Company's business, financial
condition
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<PAGE> 14
and results of operations. Failure to introduce new products in a timely manner
could cause companies to purchase products from competitors and have a material
adverse effect on the Company's business, financial condition and results of
operations. Due to a variety of factors, the Company may experience delays in
developing its planned products. New products may require additional development
work, enhancement, testing or further refinement before the Company can make
them commercially available. The Company has in the past experienced delays in
the introduction of new products, product applications and enhancements due to a
variety of internal factors, such as reallocation of priorities, difficulty in
hiring sufficient qualified personnel and unforeseen technical obstacles, as
well as changes in customer requirements. For example, the Company has
experienced and continues to experience delays in the introduction of the Access
System 3000 platform. Although the Company does not believe that such delays
have had a material adverse effect on its customer relationships, such delays
have deferred the receipt of revenue from the products involved. If the
Company's products have performance, reliability or quality shortcomings, then
the Company may experience reduced orders, higher manufacturing costs, delays in
collecting accounts receivable and additional warranty and service expenses.
Risks Associated with the Acquisition of TxPort. In addition to risks
described under "Risks Associated With Potential Acquisitions," the Company
faces significant risks associated with its recent acquisition of TxPort. There
can be no assurance that the Company will realize the desired benefits of this
acquisition. In order to successfully integrate TxPort, the Company must, among
other things, continue to attract and retain key personnel, integrate the
acquired products and technology from engineering, sales and marketing
perspectives, and consolidate functions and facilities, which may result in
future charges to streamline the combined operations. Difficulties encountered
in the integration may have a material adverse effect on the Company's business,
financial condition and results of operations.
The Company used purchase accounting in connection with the acquisition of
TxPort, resulting in a charge to be taken in each of the next three to ten years
for the amortization of intangible assets. As a result, the Company expects that
the acquisition will be dilutive to earnings in fiscal 1999.
Risks Associated With Potential Acquisitions. An important element of the
Company's strategy is to review acquisition prospects that would compliment its
existing product offerings, augment its market coverage, enhance its
technological capabilities or offer growth opportunities. Future acquisitions by
the Company could result in potentially dilutive issuance of equity securities,
use of cash and/or the incurring of debt and the assumption of contingent
liabilities, any of which could have a material adverse effect on the Company's
business and operating results and/or the price of the Company's Common Stock.
Acquisitions entail numerous risks, including difficulties in the assimilation
of acquired operations, technologies and products, diversion of management's
attention from other business concerns, risks of entering markets in which the
Company has limited or no prior experience and potential loss of key employees
of acquired organizations. The Company's management has limited prior experience
in assimilating acquired organizations. No assurance can be given as to the
ability of the Company to successfully integrate any businesses, products,
technologies or personnel that might be acquired in the future, and the failure
of the Company to do so could have a material adverse effect on the Company's
business and operating results.
Enterprise Resource Planning. The Company is currently engaged in a major
project to upgrade its enterprise-wide database and information management
systems, based principally on software from Oracle. The Company anticipates the
project completion date to be in the fourth quarter of the current fiscal year.
However, there can be no assurance that the Company will not experience
significant disruption as a result of unexpected delays in the implementation
process, or that the Company will not complete the project within the planned
time frame or budget. Significant delays may have a material adverse impact on
the Company's business, financial condition and results of operations. See "Year
2000 Compliance".
Need to Expand Marketing Organization and Channels of Distribution. Currently
the Company sells its products to a small number of customers through a
relatively small sales force. The Company's strategy is to distribute and market
its products to a broader customer base, which will require the Company to
significantly expand its channels of distribution. There can be no assurance
that the Company will be able to recruit, train, motivate and manage additional
qualified marketing personnel with the requisite experience and knowledge, or
attract additional qualified distributors. Availability of qualified product
marketing personnel is limited, and competition for experienced personnel in the
network access and telecommunications equipment industries is intense. The
failure to timely expand its channels of distribution and product marketing
organization could have a material adverse effect on the Company's business,
14
<PAGE> 15
financial condition and results of operations. See "Customer Concentration",
"Management of Growth" and "Dependence on Key Personnel".
Dependence on Component Availability and Key Suppliers. On-time delivery of
the Company's products depends upon the availability of components and
subsystems used in its products. The Company depends in part upon suppliers to
manufacture, assemble and deliver components in a timely and satisfactory
manner. The Company obtains several components and licenses certain embedded
software from single or limited sources. There can be no assurance that these
suppliers will continue to be able and willing to meet the Company's
requirements for any such components. The Company generally does not have any
long-term contracts with such suppliers, other than software vendors. Any
significant interruption in the supply of, or degradation in the quality of, any
such item could have a material adverse effect on the Company's results of
operations. The Company has no current plans to significantly expand its
supplier base. See "Year 2000 Compliance".
Purchase orders from the Company's customers frequently require delivery
quickly after placement of the order. As the Company does not maintain
significant component inventories, delay in shipment by a supplier could lead to
lost sales. The Company uses internal forecasts to determine its general
materials and components requirements. Lead times for materials and components
may vary significantly, and depend on factors such as specific supplier
performance, contract terms and general market demand for components. If orders
vary from forecasts, the Company may experience excess or inadequate inventory
of certain materials and components. From time to time, the Company has
experienced shortages and allocations of certain components, resulting in delays
in fulfillment of customer orders. Such shortages and allocations could have a
material adverse effect on the Company's business, financial condition and
results of operations. See "Fluctuations in Quarterly Operating Results".
Competition. The market for telecommunications network access equipment is
highly competitive, and the Company expects competition to increase in the
future. This market is subject to rapid technological change, regulatory
developments, and new entrants. The market for integrated access devices such as
the Company's Access System product line is subject to rapid change. The Company
believes that the primary competitive factors in this market are the development
and rapid introduction of new product features, price and performance, support
for multiple types of communications services, network management, reliability,
and quality of customer support. There can be no assurance that the Company's
current products and future products under development will be able to compete
successfully with respect to these or other factors. The Company's principal
competition to date for its current Access System 2000 products has been from
Digital Link Corporation, Kentrox, a division of ADC Telecommunications and
Larscom, Inc., a subsidiary of Axel Johnson. In addition, the Company expects
substantial competition from companies in the computer networking market and
other related markets such as Newbridge Networks Corporation, Telco Systems,
Inc., a division of World Access, Inc., Visual Networks Inc., and Adtran, Inc.
To the extent that current or potential competitors can expand their current
offerings to include products that have functionality similar to the Company's
products and planned products, the Company's business, financial condition and
results of operations could be materially adversely affected.
The Company believes that the market for basic network termination products
is mature and that the principal competitive factors in this market are price,
installed base and quality of customer support. In this market, the Company
primarily competes with Adtran, Digital Link, Kentrox, Paradyne and Larscom.
There can be no assurance that such companies or other competitors will not
introduce new products that provide greater functionality and/or at a lower
price than the Company's like products. In addition, advanced termination
products are emerging which represent both new market opportunities as well as a
threat to current products. Furthermore, basic line termination functions are
increasingly being integrated by competitors into other equipment such as
routers and switches, which include direct WAN interfaces in certain products,
eroding the addressable market for separate network termination products.
Many of the Company's current and potential competitors have substantially
greater technical, financial, manufacturing and marketing resources than the
Company. In addition, many of the Company's competitors have long-established
relationships with network service providers. There can be no assurance that the
Company will have the financial resources, technical expertise, manufacturing,
marketing, distribution and support capabilities to compete successfully in the
future.
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<PAGE> 16
Rapid Technological Change. The network access and telecommunications
equipment markets are characterized by rapidly changing technologies and
frequent new product introductions. The rapid development of new technologies
increases the risk that current or new competitors could develop products that
would reduce the competitiveness of the Company's products. The Company's
success will depend to a substantial degree upon its ability to respond to
changes in technology and customer requirements. This will require the timely
selection, development and marketing of new products and enhancements on a
cost-effective basis. The development of new, technologically advanced products
is a complex and uncertain process, requiring high levels of innovation. The
development of new products for the WAN access market requires competence in the
general areas of telephony, data networking, network management and wireless
telephony as well as specific technologies such as DSL, ISDN, Frame Relay, ATM
and IP. Furthermore, the communications industry is characterized by the need to
design products which meet industry standards for safety, emissions and network
interconnection. With new and emerging technologies and service offerings from
network service providers, such standards are often changing or unavailable. As
a result, there is a potential for product development delays due to the need
for compliance with new or modified standards. The introduction of new and
enhanced products also requires that the Company manage transitions from older
products in order to minimize disruptions in customer orders, avoid excess
inventory of old products and ensure that adequate supplies of new products can
be delivered to meet customer orders. There can be no assurance that the Company
will be successful in developing, introducing or managing the transition to new
or enhanced products, or that any such products will be responsive to
technological changes or will gain market acceptance. The Company's business,
financial condition and results of operations would be materially adversely
affected if the Company were to be unsuccessful, or to incur significant delays
in developing and introducing such new products or enhancements. See "Dependence
on Recently Introduced Products and Products under Development".
Year 2000 Compliance. The year 2000 problem is widespread and complex. If
computer, information or telecommunication systems do not correctly recognize
date information when the year changes to 2000, there could be an adverse impact
on the Company's operations. The Company is evaluating its year 2000 risk as it
exists in four areas: Information technology infrastructure, including reviewing
what actions are necessary to bring all software tools used internally to year
2000 compliance, information systems used by the Company's suppliers, potential
warranty and year 2000 claims from the Company's customers, and the potential
impact of reduced spending by customers or potential customers on
telecommunication network solutions as a result of devoting a substantial
portion of their information system spending to resolve year 2000 compliance
issues.
The Company is in the process of evaluating its information technology
infrastructure for year 2000 compliance, which include reviewing what actions
are required to make all software systems used internally year 2000 compliant.
The Company has purchased an enterprise resource planning (ERP) solution which
has been determined to be year 2000 compliant. The implementation of this ERP
solution will require a material investment by the Company in internal and
external resources. Significant delays by the Company in implementing this ERP
solution could have a material adverse impact on the business, operating results
and financial condition of the Company. It is the Company's intent for all
software systems and tools that are identified as non-compliant to be either
upgraded or replaced. For the non-compliant systems identified to date, the cost
to bring the systems to year 2000 compliance is not expected to be material to
the Company's operating results. However, if implementation of replacement
systems and tools is delayed, or if significant new non-compliance issues are
identified, the Company's results of operations, business and financial
condition could be materially affected.
The Company is in the process of contacting its key suppliers to determine
that the suppliers operations and the products and services they provide are
year 2000 compliant. In the event that any of the Company's key suppliers does
not successfully and timely achieve year 2000 compliance, the Company's
business, financial condition and results of operations could be adversely
affected.
All of the Company's products are currently being reviewed for compliance to
year 2000 guidelines. This process includes complete and thorough testing of
current products as well as inclusion of year 2000 requirements in
specifications for future product releases. Based on a preliminary review, the
Company believes its current product shipments are year 2000 compliant and that
neither performance nor functionality are affected by dates prior to, during,
and after the year 2000 and that the year 2000 is recognized as a leap year.
However, as all customer events cannot be anticipated, the Company may see an
increase in product warranty and other claims. In the event that any of the
16
<PAGE> 17
Company's products ultimately are not year 2000 compliant, or there are customer
claims made against the Company, the Company's business, financial condition and
results of operations could be adversely affected.
The Company has not developed a contingency plan to address every potential
year 2000 non-compliance situation that may be present when the year changes to
2000. However, it is the Company's intention to formulate contingency plans in
those areas where year 2000 non-compliance could have a material adverse effect
on the Company's business, financial condition and results of operation. See
"Enterprise Resource Planning".
Management of Growth. The Company has recently experienced and may continue
to experience growth in the number of its employees and the scope of its
operations. To manage potential future growth effectively, the Company must
improve its operational, financial and management information systems and must
hire, train, motivate and manage a growing number of employees. The future
success of the Company also will depend on its ability to increase its customer
support capability and to attract and retain qualified technical, marketing and
management personnel, for whom competition is intense. In particular, the
current availability of qualified personnel is quite limited, and competition
among companies for such personnel is intense. The Company is currently
attempting to hire a number of product marketing and engineering personnel and
has experienced delays in filling such positions and expects to experience
continued difficulty in filling its needs for qualified personnel. There can be
no assurance that the Company will be able to effectively achieve or manage any
such growth, and failure to do so could delay product development and
introduction cycles or otherwise have a material adverse effect on the Company's
business, financial condition and results of operations. See "Need to Expand
Sales and Marketing Organizations and Channels of Distribution" and "Dependence
on Key Personnel".
Compliance with Regulations and Evolving Industry Standards. The market for
the Company's products is characterized by the need to meet a significant number
of communications regulations and standards, some of which are evolving as new
technologies are deployed. In the United States, the Company's products must
comply with various regulations defined by the Federal Communications Commission
and standards established by Underwriters Laboratories and Bell Communications
Research. For some public carrier services, installed equipment does not fully
comply with current industry standards, and this noncompliance must be addressed
in the design of the Company's products. Standards for new services such as
frame relay, performance monitoring services and ATM are still evolving. As
these standards evolve, the Company will be required to modify its products or
develop and support new versions of its products. The failure of the Company's
products to comply, or delays in compliance, with the various existing and
evolving industry standards could delay introduction of the Company's products,
which could have a material adverse effect on the Company's business, financial
condition and results of operations.
Government regulatory policies are likely to continue to have a major impact
on the pricing of existing as well as new public network services and therefore
are expected to affect demand for such services and the telecommunications
products that support such services. Tariff rates, whether determined by network
service providers or in response to regulatory directives, may affect the cost
effectiveness of deploying communication services. Such policies also affect
demand for telecommunications equipment, including the Company's products.
Risks Associated With Entry into International Markets. The Company to date
has had minimal direct sales to customers outside of North America. The Company
has little experience in the European and Far Eastern markets, but intends to
expand sales of its products outside of North America and to enter certain
international markets, which will require significant management attention and
financial resources. Conducting business outside of North America is subject to
certain risks, including longer payment cycles, unexpected changes in regulatory
requirements and tariffs, difficulties in staffing and managing foreign
operations, greater difficulty in accounts receivable collection and potentially
adverse tax consequences. To the extent any Company sales are denominated in
foreign currency, the Company's sales and results of operations may also be
directly affected by fluctuations in foreign currency exchange rates. In order
to sell its products internationally, the Company must meet standards
established by telecommunications authorities in various countries, as well as
recommendations of the Consultative Committee on International Telegraph and
Telephony. A delay in obtaining, or the failure to obtain, certification of its
products in countries outside the United States could delay or preclude the
Company's marketing and sales efforts in such countries, which could have a
material adverse effect on the Company's business, financial condition and
results of operations.
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<PAGE> 18
Risk of Third Party Claims of Infringement. The network access and
telecommunications equipment industries are characterized by the existence of a
large number of patents and frequent litigation based on allegations of patent
infringement. From time to time, third parties may assert exclusive patent,
copyright, trademark and other intellectual property rights to technologies that
are important to the Company. The Company has not conducted a formal patent
search relating to the technology used in its products, due in part to the high
cost and limited benefits of a formal search. In addition, since patent
applications in the United States are not publicly disclosed until the related
patent is issued and foreign patent applications generally are not publicly
disclosed for at least a portion of the time that they are pending, applications
may have been filed which, if issued as patents, could relate to the Company's
products. Software comprises a substantial portion of the technology in the
Company's products. The scope of protection accorded to patents covering
software-related inventions is evolving and is subject to a degree of
uncertainty which may increase the risk and cost to the Company if the Company
discovers third party patents related to its software products or if such
patents are asserted against the Company in the future. Patents have been
granted recently on fundamental technologies in software, and patents may be
issued which relate to fundamental technologies incorporated into the Company's
products. The Company has received and may receive in the future communications
from third parties asserting that the Company's products infringe or may
infringe the proprietary rights of third parties. In its distribution
agreements, the Company typically agrees to indemnify its customers for any
expenses or liabilities resulting from claimed infringements of patents,
trademarks or copyrights of third parties. In the event of litigation to
determine the validity of any third-party claims, such litigation, whether or
not determined in favor of the Company, could result in significant expense to
the Company and divert the efforts of the Company's technical and management
personnel from productive tasks. In the event of an adverse ruling in such
litigation, the Company might be required to discontinue the use and sale of
infringing products, expend significant resources to develop non-infringing
technology or obtain licenses from third parties. There can be no assurance that
licenses from third parties would be available on acceptable terms, if at all.
In the event of a successful claim against the Company and the failure of the
Company to develop or license a substitute technology, the Company's business,
financial condition and results of operations would be materially adversely
affected.
Limited Protection of Intellectual Property. The Company relies upon a
combination of patent, trade secret, copyright and trademark laws and
contractual restrictions to establish and protect proprietary rights in its
products and technologies. The Company has been issued certain U.S. and Canadian
patents with respect to limited aspects of its single purpose network access
technology. The Company has not obtained significant patent protection for its
Access System technology. There can be no assurance that third parties have not
or will not develop equivalent technologies or products without infringing the
Company's patents or that the Company's patents would be held valid and
enforceable by a court having jurisdiction over a dispute involving such
patents. The Company has also entered into confidentiality and invention
assignment agreements with its employees and independent contractors, and enters
into non-disclosure agreements with its suppliers, distributors and appropriate
customers so as to limit access to and disclosure of its proprietary
information. There can be no assurance that these statutory and contractual
arrangements will deter misappropriation of the Company's technologies or
discourage independent third-party development of similar technologies. In the
event such arrangements are insufficient, the Company's business, financial
condition and results of operations could be materially adversely affected. The
laws of certain foreign countries in which the Company's products are or may be
developed, manufactured or sold may not protect the Company's products or
intellectual property rights to the same extent as do the laws of the United
States and thus, make the possibility of misappropriation of the Company's
technology and products more likely.
Dependence on Key Personnel. The Company's future success will depend to a
large extent on the continued contributions of its executive officers and key
management, sales and technical personnel. The Company has employment agreements
with Leigh S. Belden, the Company's President and Chief Executive Officer, and
Steven C. Taylor, the Company's Chief Technical Officer. The Company also is a
party to agreements with certain of its executive officers to help ensure the
officer's continual service to the Company in the event of a change-in-control.
Each of the Company's executive officers, and key management, sales and
technical personnel would be difficult to replace. The loss of the services of
one or more of the Company's executive officers or key personnel, or the
inability to continue to attract qualified personnel could delay product
development cycles or otherwise have a material adverse effect on the Company's
business, financial condition and results of operations.
See "Management of Growth".
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Antitakeover Effects of Certain Charter Provisions. The Company's Board of
Directors has the authority to issue up to 1,000,000 shares of Preferred Stock
and to determine the price, rights, preferences and privileges of those shares
without any further vote or action by the stockholders. The rights of the
holders of Common Stock will be subject to, and may be adversely affected by,
the rights of the holders of any Preferred Stock that may be issued in the
future. The issuance of shares of Preferred Stock, while potentially providing
desirable flexibility in connection with possible acquisitions and other
corporate purposes, could have the effect of making it more difficult for a
third party to acquire a majority of the outstanding voting stock of the
Company. The Company has no present intention to issue shares of Preferred
Stock. In addition, the Company is subject to the anti-takeover provisions of
Section 203 of the Delaware General Corporation Law, which will prohibit the
Company from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. The application of Section 203
also could have the effect of delaying or preventing a change of control of the
Company. Furthermore, certain provisions of the Company's Amended and Restated
Certificate of Incorporation, including provisions that provide for the Board of
Directors to be divided into three classes to serve for staggered three-year
terms, may have the effect of delaying or preventing a change of control of the
Company, which could adversely affect the market price of the Company's Common
Stock.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
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<PAGE> 20
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Annual Meeting of Stockholders of the Company was held on November
23, 1998 (the "Annual Meeting"). The voting of holders of record of
13,921,946 shares of the Company's Common Stock outstanding at the
close of business on October 1, 1998 was solicited by proxy pursuant to
Regulation 14A under the Securities Exchange Act of 1934.
(b) The following individuals were elected as Class II Directors of the
Company at the Annual Meeting:
<TABLE>
<CAPTION>
CLASS II DIRECTOR VOTES FOR VOTES WITHOLDING AUTHORITY
<S> <C> <C>
Howard Oringer 11,244,869 269,684
John A. McGuire 11,247,520 267,033
</TABLE>
The following Directors' terms of office as Director continued after
the meeting: Leigh S. Belden, Steven C. Taylor, David L. Lyon.
(c) The amendment to the Company's Stock Option Plan to increase the number
of shares for issuance from 4,050,000 to 5,050,000 shares was ratified.
The stockholders' vote was 10,069,934 shares FOR; 1,420,519 shares
AGAINST; and 24,100 shares ABSTAINED from voting.
(d) The amendment to the Company's Employee Stock Purchase Plan to increase
the number of shares reserved for issuance from 300,000 to 500,000
shares was ratified. The stockholders' vote was 11,333,221 shares FOR;
158,732 shares AGAINST; and 22,600 shares ABSTAINED from voting.
(e) The appointment of PricewaterhouseCoopers LLP as the Company's
independent certified public accountants for fiscal year 1999 was
ratified. The stockholders' vote on such appointment was 11,442,236
shares FOR; 50,367 shares AGAINST; and 21,950 shares ABSTAINED from
voting.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits Index:
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
-------------- ----------------------
<S> <C>
10.25 Agreements with Civic Bank: Assignment of
Deposit Account, Corporate Resolution to
Guarantee and Corporate Resolution to Grant
Collateral
10.26 Loan facility dated January 1, 1999 provided
by the Registrant to Leigh S. Belden.
10.27 Promissory Note of Baytech Associates in favor
of the Registrant dated February 9, 1999.
27.1 Financial Data Schedule
</TABLE>
(b) The Company filed a report on Form 8-K on December 1, 1998 and a report on
Form 8-K/A on February 1, 1999 in connection with the acquisition of TxPort,
Inc.
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<PAGE> 21
SIGNATURES
Pursuant to the requirements 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.
VERILINK CORPORATION
February 10, 1999 By: /s/ John C. Batty
------------------------------------
John C. Batty,
Vice President, Finance and Chief
Financial Officer
(Duly Authorized Officer and
Principal Financial Officer)
21
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
-------------- ----------------------
<S> <C>
10.25 Agreements with Civic Bank: Assignment of
Deposit Account, Corporate Resolution to
Guarantee and Corporate Resolution to Grant
Collateral
10.26 Loan facility dated January 1, 1999 provided by
the Registrant to Leigh S. Belden.
10.27 Promissory Note of Baytech Associates in favor
of the Registrant dated February 9, 1999.
27.1 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.25
[LOGO] CIVICBANK OF COMMERCE
ASSIGNMENT OF DEPOSIT ACCOUNT
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$500,000.00 10-20-1998 10-20-1999 182000380 401 40 WSK
- ----------------------------------------------------------------------------------------------------------
</TABLE>
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
- --------------------------------------------------------------------------------
BORROWER: LEIGH BELDEN LENDER: CivicBank of Commerce
145 Baytech Drive Fremont Office
San Jose, CA 95134 2201 Walnut Avenue, Suite 100
Fremont, CA 94538
GRANTOR: Verilink Corporation
145 Baytech Drive
San Jose, CA 95134
- --------------------------------------------------------------------------------
THIS ASSIGNMENT OF DEPOSIT ACCOUNT is entered into among LEIGH BELDEN (referred
to below as "Borrower"); Verilink Corporation (referred to below as "Grantor");
and CivicBank of Commerce (referred to below as "Lender").
ASSIGNMENT. For valuable consideration, Grantor assigns and grants to Lender a
security interest in the Collateral, including without limitation the deposit
accounts described below, to secure the Indebtedness and agrees that Lender
shall have the rights stated in this Agreement with respect to the Collateral,
in addition to all other rights which Lender may have by law.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
ACCOUNT. The word "Account" means the deposit account described below in
the definition for "Collateral."
AGREEMENT. The word "Agreement" means this Assignment of Deposit Account,
as this Assignment of Deposit Account may be amended or modified from time
to time, together with all exhibits and schedules attached to this
Assignment of Deposit Account from time to time.
BORROWER. The word "Borrower" means each and every person or entity
signing the Note, including without limitation LEIGH BELDEN.
COLLATERAL. The word "Collateral" means the following described deposit
account:
CERTIFICATE OF DEPOSIT 1870000280 in the name of Verilink Corporation
issued by Lender in an amount not less than $500,000.00
together with (a) all interest, whether now accrued or hereafter accruing; (b)
all additional deposits hereafter made to the Account; (c) any and all proceeds
from the Account; and (d) all renewals, replacements and substitutions, for any
of the foregoing.
In addition, the word "Collateral" includes all property of Grantor (however
owned if owned by more than one person), in the possession of Lender (or in the
possession of a third party subject to the control of Lender), whether existing
now or later and whether tangible or intangible in character, including without
limitation each and all of the following:
(a) All property to which Lender acquires title or documents of title.
(b) All property assigned to Lender.
(c) All promissory notes, bills of exchange, stock certificates,
bonds, savings passbooks, time certificates of deposit, insurance
policies, and all other instruments and evidences of an obligation.
(d) All records relating to any of the property described in this
Collateral section, whether in the form of writing, microfilm,
microfiche, or electronic media.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "Events of Default."
GRANTOR. The word "Grantor" means Verilink Corporation. Any Grantor who
signs this Agreement, but does not sign the Note, is signing this
Agreement only to grant a security interest in Grantor's interest in the
Collateral to Lender and is not personally liable under the Note except as
otherwise provided by contract or law (e.g., personal liability under a
guaranty or as a surety).
GUARANTOR. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note, including all principal and interest, together with all other
indebtedness and costs and expenses for which Grantor or Borrower is
responsible under this Agreement or under any of the Related Documents.
LENDER. The word "Lender" means CivicBank of Commerce, its successors and
assigns.
NOTE. The word "Note" means the note or credit agreement dated October 20,
1998, in the principal amount of $500,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of and substitutions for the note or
credit agreement.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages,
deeds of trust, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the
Indebtedness.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under
this Agreement or by applicable law, (a) Borrower agrees that Lender need not
tell Borrower about any action or inaction Lender takes in connection with this
Agreement; (b) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (c) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
<PAGE> 2
10-20-98 ASSIGNMENT OF DEPOSIT ACCOUNT Page 2
Loan No 182000380 (Continued)
- --------------------------------------------------------------------------------
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this
Agreement is executed at Borrower's request and not at the request of Lender;
(b) Grantor has the full right, power and authority to enter into this Agreement
and to pledge the Collateral to Lender; (c) Grantor has established adequate
means of obtaining from Borrower on a continuing basis information about
Borrower's financial condition; and (d) Lender has made no representation to
Grantor about Borrower or Borrower's creditworthiness.
GRANTOR'S WAIVERS. Except as prohibited by applicable law, Grantor waives any
right to require Lender to (a) make any presentment, protest, demand, or notice
of any kind, including notice of change of any terms of repayment of the
Indebtedness, default by Borrower or any other guarantor or surety, any action
or nonaction taken by Borrower, Lender, or any other guarantor or surety of
Borrower, or the creation of new or additional indebtedness; (b) proceed against
any person, including Borrower, before proceeding against Grantor; (c) proceed
against any collateral for the Indebtedness, including Borrower's collateral,
before proceeding against Grantor; (d) apply any payments or proceeds received
against the indebtedness in any order; (e) give notice of the terms, time, and
place of any sale of any collateral pursuant to the Uniform Commercial Code or
any other law governing such sale; (f) disclose any information about the
Indebtedness, the Borrower, any collateral, or any other guarantor or surety, or
about any action or nonaction of Lender; or (g) pursue any remedy or course of
action in Lender's power whatsoever.
Grantor also waives any and all rights or defenses arising by reason of (h) any
disability or other defense of Borrower, any other guarantor or surety or any
other person; (i) the cessation for any cause whatsoever, other than payment in
full, of the Indebtedness; (j) the application of proceeds of the indebtedness
by Borrower for purposes other than the purposes understood and intended by
Grantor and Lender; (k) any act of omission or commission by Lender which
directly or indirectly results in or contributes to the discharge of Borrower or
any other guarantor or surety, or the Indebtedness, or the loss or release of
any collateral by operation of law or otherwise; (l) any statute of limitations
in any action under this Agreement or on the indebtedness; or (m) any
modification or change in terms of the indebtedness, whatsoever, including
without limitation, the renewal, extension, acceleration, or other change in the
time payment of the indebtedness is due and any change in the interest rate.
Grantor waives all rights and defenses arising out of any election of remedies
by Lender, even though that election of remedies, such as nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed
Grantor's rights of subrogation and reimbursement against Borrower by the
operation of Section 580d of the California Code of Civil Procedure, or
otherwise.
This waiver includes, without limitation, any loss of rights Grantor may suffer
by reason of any rights or protections of Borrower in connection with any
anti-deficiency laws, or other laws limiting or discharging the indebtedness or
Borrower's obligations (including, without limitation, Section 726, 680a, 580b,
and 580d of the California Code of Civil Procedure). Grantor waives all rights
and protections of any kind which Grantor may have for any reason, which would
affect or limit the amount of any recovery by Lender from Grantor following a
nonjudicial sale or judicial foreclosure of any real or personal property
security for the indebtedness including, but not limited to, the right to any
fair market value hearing pursuant to California Code of Civil Procedure Section
580a.
Grantor understands and agrees that the foregoing waivers are waivers of
substantive rights and defenses to which Grantor might otherwise be entitled
under state and federal law. The rights and defenses waived include, without
limitation, those provided by California laws of suretyship and guaranty,
anti-deficiency laws, and the Uniform Commercial Code. Grantor acknowledges that
Grantor has provided these waivers of rights and defenses with the intention
that they be fully relied upon by Lender. Until all indebtedness is paid in
full, Grantor waives any right to enforce any remedy Lender amy have against
Borrower or any other guarantor, surety, or other person, and further, Grantor
waives any right to participate in any collateral for the indebtedness now or
hereafter held by Lender.
GRANTOR'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear of
all loans, liens, encumbrances, and claims except as disclosed to and
accepted by Lender in writing.
RIGHT TO GRANT SECURITY INTEREST. Grantor has the full right, power, and
authority to enter into this Agreement and to assign the Collateral to
Lender.
NO FURTHER TRANSFER. Grantor will not sell, assign, encumber, or otherwise
dispose of any of Grantor's rights in the Collateral except as provided in
this Agreement
NO DEFAULTS. There are no defaults relating to the Collateral, and there
are no offsets or counterclaims to the same. Grantor will strictly and
promptly do everything required of Grantor under the terms, conditions,
promises, and agreements contained in or relating to the Collateral.
PROCEEDS. Any and all replacement or renewal certificates, instruments, or
other benefits or proceeds related to the Collateral that are received by
Grantor shall be held by Grantor in trust for Lender and immediately shall
be delivered by Grantor to Lender to be held as part of the Collateral.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. While this
Agreement is in effect, Lender may retain the rights to possession of the
Collateral, together with any and all evidence of the Collateral, such as
certificates or passbooks. This Agreement will remain in effect until (a) there
no longer is any indebtedness owing to Lender; (b) all other obligations secured
by this Agreement have been fulfilled; and (c) Grantor, in writing, has
requested from Lender a release of this Agreement.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, liens, security interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment which will be
due and payable at the Note's maturity. This Agreement also will secure payment
of these amounts. Such right shall be in addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of any certificate or passbook for the
Collateral but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility (a) for the collection or protection of any income on the
Collateral, (b) for the preservation of rights against issuers of the Collateral
or against third persons; (c) for ascertaining any maturities, conversions,
exchanges, offers, lenders, or similar matters relating to the Collateral; nor
(d) for informing the Grantor about any of the above, whether or not Lender has
or is deemed to have knowledge of such matters.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when due
on the indebtedness.
OTHER DEFAULTS. Failure of Grantor or Borrower to comply with or to perform
any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or failure of Borrower to
comply with or to perform any term, obligation, covenant or condition
contained in any other agreement between Lender and Borrower
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or
<PAGE> 3
10-20-1998 ASSIGNMENT OF DEPOSIT ACCOUNT Page 3
Loan No 182000380 (Continued)
================================================================================
sales agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or Borrower's
or any Grantor's ability to repay the Loans or perform their respective
obligations under this Agreement or any of the Restated Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Grantor or Borrower under this
Agreement, the Note or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
documents to create a valid and perfected security interest or lien) at any
time and for any reason.
DEATH OR INSOLVENCY. The death of Grantor or Borrower or the dissolution or
termination of Grantor or Borrower's existence as a going business, the
insolvency of Grantor or Borrower, the appointment of a receiver for any
part of Grantor or Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor or
Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor or Grantor or Borrower or
by any governmental agency against the Collateral or any other collateral
securing the indebtedness. This includes a garnishment of any of Grantor or
Borrower's deposit accounts with Lender.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or such Guarantor dies
or becomes incompetent.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
indebtedness is impaired.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, or
at any time thereafter, Lender may exercise any one or more of the
following rights and remedies, in addition to any rights or remedies that
may be available at law, in equity, or otherwise:
ACCELERATE INDEBTEDNESS. Lender may declare all indebtedness of Borrower
to Lender immediately due and payable, without notice of any kind to
Grantor or Borrower.
APPLICATION OF ACCOUNT PROCEEDS. Lender may obtain all funds in the
Account from the issuer of the Account and apply them to the indebtedness
in the same manner as if the Account had been issued by Lender. If the
Account is subject to an early withdrawal penalty, that penalty shall be
deducted from the Account before its application to the indebtedness,
whether the Account is with Lender or some other institution. Any excess
funds remaining after application of the Account proceeds to the
indebtedness will be paid to Grantor or Borrower as the interests of
Grantor or Borrower may appear. Borrower agrees, to the extent permitted by
law, to pay any deficiency after application of the proceeds of the Account
to the indebtedness. Lender also shall have all the rights of a secured
party under the California Uniform Commercial Code, even if the Account is
not otherwise subject to such Code concerning security interests, and the
parties to this Agreement agree that the provisions of the Code giving
rights to a secured party shall nonetheless be a part of this Agreement.
COLLECT THE COLLATERAL. Lender may collect any of the Collateral and, at
Lender's option and to the extent permitted by applicable law, may retain
possession of the Collateral while suing on the indebtedness.
SELL THE COLLATERAL. Lender may sell the Collateral, at Lender's
discretion, as a unit or in parcels, at one or more public or private
sales. Unless the Collateral is perishable or threatens to decline
speedily in value, Lender shall give or mail to Grantor or Borrower, or
any of them, notice at least ten (10) days in advance of the time and
place of public sale, or of the date after which private sale may be made.
Grantor and Borrower agree that any requirement of reasonable notice is
satisfied if Lender mails notice by ordinary mail addressed to Grantor or
Borrower, or any of them, at the last address Grantor or Borrower has
given Lender in writing. If public sale is held, there shall be sufficient
compliance with all requirements of notice to the public by a single
publication in any newspaper of general circulation in the county where
the Collateral is located, setting forth the time and place of sale and a
brief description of the property to be sold. Lender may be a purchaser at
any public sale.
REGISTER SECURITIES. Lender may register any securities included in the
Collateral in Lender's name and exercise any rights normally incident to
the ownership of securities.
SELL SECURITIES. Lender may sell any securities included in the Collateral
in a manner consistent with applicable federal and state securities laws,
notwithstanding any other provision of this or any other agreement. If,
because or restrictions under such laws, Lender is or believes it is
unable to sell the securities in an open market transaction, Grantor and
Borrower agree that (a) Lender shall have no obligation to delay sale
until the securities can be registered, (b) Lender may make a private sale
to a single person or restricted group of persons, even though such sale
may result in a price that is less favorable than might be obtained in an
open market transaction, and (c) such a sale shall be considered
commercially reasonable. If any securities held as Collateral are
"restricted securities" as defined in the Rules of the Securities and
Exchange Commission (such as Regulation D or Rule 144) or state securities
department under state "Blue Sky" laws, or if Grantor or Borrower, or any
of them (if more than one), is an affiliate of the issuer of the
securities, Grantor and Borrower agree that Grantor or Borrower will
neither sell nor dispose of any securities of such issuer without obtaining
Lender's prior written consent.
TRANSFER TITLE. Lender may effect transfer of title upon sale of all or
part of the Collateral. For this purpose, Grantor irrevocably appoints
Lender as its attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one) as
shall be necessary or reasonable.
APPLICATION OF PROCEEDS. Lender may apply any cash which is part of the
Collateral, or which is received from the collection or sale of the
Collateral, to (a) reimbursement of any expenses, including any costs of
any securities registration, commissions incurred in connection with a
sale, attorney fees as provided below and court costs, whether or not
there is a lawsuit and including any fees on appeal, incurred by Lender in
connection with the collection and sale of such Collateral, and (b) to the
payment of the indebtedness of Borrower to Lender, with any excess funds
to be paid to Grantor as the interests of Grantor may appear.
OTHER RIGHTS AND REMEDIES. Lender shall have and may exercise any or all
of the rights and remedies of a secured creditor under the provisions of
the California Uniform Commercial Code, at law, in equity, or otherwise.
DEFICIENCY JUDGMENT. If permitted by applicable law, Lender may obtain a
judgment for any deficiency remaining in the indebtedness due to Lender
after application of all amounts received from the exercise of the rights
provided in this section.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether evidenced
by this Agreement or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor or
Borrower under this Agreement, after Grantor or Borrower's failure to
perform, shall not affect Lender's right to declare a default and to
exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENT. This Amendment, together with any Related Documents, constitute
the entire understanding and agreement of the parties as to the matters set
forth in this Agreement. No alteration of or amendment to this Agreement
shall be effective unless given in writing and signed by the
<PAGE> 4
10-20-1998 ASSIGNMENT OF DEPOSIT ACCOUNT PAGE 4
LOAN NO 182000380 (CONTINUED)
- --------------------------------------------------------------------------------
party or parties sought to be charged or bound by the alteration or amendment.
APPLICABLE LAW. This Agreement has been delivered to Lender and accepted by
Lender in the State of California. If there is a lawsuit, Grantor and Borrower
agree upon Lender's request to submit to the jurisdiction of the courts of
Alameda County, State of California. Lender, Grantor and Borrower hereby waive
the right to any jury trial in any action, proceeding, or counterclaim brought
by either Lender, Grantor or Borrower against the other. Subject to the
provisions on arbitration, this Agreement shall be governed by and construed in
accordance with the laws of the State of California.
ARBITRATION. Lender and Grantor and Borrower agree that all disputes, claims
and controversies between them, whether individual, joint, or class in nature,
arising from this Agreement or otherwise, including without limitation contract
and tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association, upon request of either party. No act to take or
dispose of any Collateral shall constitute a waiver of this arbitration
agreement or be prohibited by this arbitration agreement. This includes,
without limitation, obtaining injunctive relief or a temporary restraining
order; invoking a power of sale under any deed of trust or mortgage; obtaining
a writ of attachment or imposition of a receiver; or exercising any rights
relating to personal property, including taking or disposing of such property
with or without judicial process pursuant to Article 9 of the Uniform
Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral, including any claim to rescind, reform, or otherwise modify any
agreement relating to the Collateral, shall also be arbitrated, provided
however that no arbitrator shall have the right or the power to enjoin or
restrain any act of any party. Lender and Grantor and Borrower agree that in
the event of an action for judicial foreclosure pursuant to California Code of
Civil Procedure Section 726, or any similar provision in any other state, the
commencement of such an action will not constitute a waiver of the right to
arbitrate and the court shall refer to arbitration as much of such action,
including counterclaims, as lawfully may be referred to arbitration. Judgment
upon any award rendered by any arbitrator may be entered in any court having
jurisdiction. Nothing in this Agreement shall preclude any party from seeking
equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in an action brought by a party shall be applicable in
any arbitration proceeding, and the commencement of an arbitration proceeding
shall be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
ATTORNEYS' FEES; EXPENSES. Grantor and Borrower agree to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's legal
expenses, incurred in connection with the enforcement of this Agreement. Lender
may pay someone else to help enforce this Agreement, and Grantor and Borrower
shall pay the costs and expenses of such enforcement. Costs and expenses
include Lender's attorneys' fees and legal expenses whether or not there is a
lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings (and including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services.
Grantor and Borrower also shall pay all court costs and such additional fees as
may be directed by the court.
NOTICES. All notices required to be given under this Agreement shall be given
in writing, may be sent by telefacsimile (unless otherwise required by law),
and shall be effective when actually delivered or when deposited with a
nationally recognized overnight courier or deposited in the United States mail,
first class, postage prepaid, addressed to the party to whom the notice is to
be given at the address shown above. Any party may change its address for
notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. To the extent permitted by applicable law. If there is more than one
Grantor or Borrower, notice to any Grantor or Borrower will constitute notice
to all Grantor and Borrowers. For notice purposes, Grantor and Borrower will
keep Lender informed at all times of Grantor and Borrower's current address(es).
POWER OF ATTORNEY. Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do the
following: (a) to demand, collect, receive, receipt for, sue and recover all
sums of money or other property which may now or hereafter become due, owing or
payable from the Collateral; (b) to execute, sign and endorse any and all
claims, instruments, receipts, checks, drafts or warrants issued in payment for
the Collateral; (c) to settle or compromise any and all claims arising under
the Collateral, and, in the place and stead of Grantor, to execute and deliver
its release and settlement for the claim; and (d) to file any claim or claims
or to take any action or institute or take part in any proceedings, either in
its own name or in the name of Grantor, or otherwise, which in the discretion
of Lender may seem to be necessary or advisable. This power is given as
security for the Indebtedness, and the authority hereby conferred is and shall
be irrevocable and shall remain in full force and effect until renounced by
Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision of this
Agreement to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any
other persons or circumstances. If feasible, any such offending provision shall
be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified, it shall
be stricken and all other provisions of this Agreement in all other respects
shall remain valid and enforceable.
SUCCESSOR INTERESTS. Subject to the limitations set forth above on transfer of
the Collateral, this Agreement shall be binding upon and inure to the benefit
of the parties, their successors and assigns.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender. No delay
or omission on the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other
provision of this Agreement. No prior waiver by Lender, nor any course of
dealing between Lender and Grantor, shall constitute a waiver of any of
Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this Agreement,
the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and
in all cases such consent may be granted or withheld in the sole discretion of
Lender.
BORROWER AND GRANTOR ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS
ASSIGNMENT OF DEPOSIT ACCOUNT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED
OCTOBER 20, 1998.
BORROWER:
X
--------------------------------
LEIGH BELDEN
GRANTOR:
Verilink Corporation
By
-------------------------------
<PAGE> 5
CORPORATE RESOLUTION TO GUARANTEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$500,000.00 10-20-1998 10-20-1999 182000380 401 40 WSK
- ----------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
- ----------------------------------------------------------------------------------------------------
Borrower: LEIGH BELDEN Lender: CivicBank of Commerce
145 Baytech Drive Fremont Office
San Jose, CA 95134 2201 Walnut Avenue, Suite 100
Fremont, CA 94538
Grantor: Verilink Corporation
145 Baytech Drive
San Jose, CA 95134
====================================================================================================
</TABLE>
I, the undersigned Secretary or Assistant Secretary of Verilink Corporation
(the "Corporation"), HEREBY CERTIFY that the Corporation is organized and
existing under and by virtue of the laws of the State of California with its
principal office at 145 Baytech Drive, San Jose, CA 95134.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation, duly
called and held on 10/19/98, at which a quorum was present and voting, or by
other duly authorized corporate action in lieu of a meeting, the following
resolutions were adopted:
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of this Corporation, whose actual signatures are shown below:
<TABLE>
<CAPTION>
NAME POSITION ACTUAL SIGNATURE
- ---- -------- ----------------
<S> <C> <C>
John Batty Vice President/Chief Financial Officer x_________________________
</TABLE>
acting for and on behalf of the Corporation and as its act and deed be, and he
or she hereby is, authorized and empowered:
Guaranty. To guarantee or act as surety for loans or other financial
accommodations to LEIGH BELDEN from CivicBank of Commerce ("Lender") on
such guarantee or surety terms as may be agreed upon between the officers
or employees of this Corporation and Lender and in such sum or sums of
money as in his or her judgment should be guaranteed or assured, not
exceeding, however, at any one time the amount of Five Hundred Thousand &
00/100 Dollars ($500,000.00), in addition to such sum or sums of money as
may be currently guaranteed by the Corporation to Lender (the "Guaranty").
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender, as security for the Guaranty, any
property now or hereafter belonging to the Corporation or in which the
Corporation now or hereafter may have an interest, including without
limitation all real property and all personal property (tangible or
intangible) of the Corporation. Such property may be mortgaged, pledged,
transferred, endorsed, hypothecated, or encumbered at the time such loans
are obtained or such indebtedness is incurred, or at any other time or
times, and may be either in addition to or in lieu of any property
theretofore mortgaged, pledged, transferred, endorsed, hypothecated, or
encumbered. The provisions of these Resolutions authorizing or relating to
the pledge, mortgage, transfer, endorsement, hypothecation, granting of a
security interest in, or in any way encumbering, the assets of the
Corporation shall include, without limitation, doing so in order to lend
collateral security for the indebtedness, now or hereafter existing, and of
any nature whatsoever, of LEIGH BELDEN to Lender. The Corporation has
considered the value of itself of lending collateral in support of such
indebtedness, and the Corporation represents to Lender that the Corporation
is benefited by doing so.
Executive Security Documents. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be required by
Lender, and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to the
giving of the liens and encumbrances.
Further Acts. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
requiring disputes with Lender to be submitted to binding arbitration for
final resolution and waiving the right to a trial by jury, as he or she may
in his or her discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that the Corporation will notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (a) change in the name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
management of the Corporation, (d) change in the authorized signer(s), (e)
conversion of the Corporation to a new or different type of business entity, or
(f) change in any other aspect of the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender. No change in the
name of the Corporation will take effect until after Lender has been notified.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of his or
her revocation shall have been delivered to and received by Lender. Any such
notice shall not affect any of the Corporation's agreements or commitments in
effect at the time notice is given.
I FURTHER CERTIFY that the officer, employee, or agent named above is duly
elected, appointed, or employed by or for the Corporation, as the case may be,
and occupies the position set opposite the name; that the foregoing Resolutions
now stand of record on the books of the Corporation; and that the Resolutions
are in full force and effect and have not been modified or revoked in any
manner whatsoever.
5
<PAGE> 6
IN TESTIMONY WHEREOF, I have hereunto set my hand on October 20, 1998 and
attest that the signatures set opposite the names listed above are their
genuine signatures.
CERTIFIED TO AND ATTESTED BY:
X___________________________________
X___________________________________
NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, it is advisable to
have this certificate signed by a second Officer or Director of the
Corporation.
<PAGE> 7
CORPORATE RESOLUTION TO GRANT COLLATERAL
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$500,000.00 10-20-1998 10-20-1999 182000380 401 40 WSK
- ----------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
- ----------------------------------------------------------------------------------------------------
Borrower: LEIGH BELDEN Lender: CivicBank of Commerce
145 Baytech Drive Fremont Office
San Jose, CA 95134 2201 Walnut Avenue, Suite 100
Fremont, CA 94538
Grantor: Verilink Corporation
145 Baytech Drive
San Jose, CA 95134
====================================================================================================
</TABLE>
I, the undersigned Secretary or Assistant Secretary of Verilink Corporation
(the "Corporation"), HEREBY CERTIFY that the Corporation is organized and
existing under and by virtue of the laws of the State of California with its
principal office at 145 Baytech Drive, San Jose, CA 95134.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation, duly
called and held on 10/19/98, at which a quorum was present and voting, or by
other duly authorized corporate action in lieu of a meeting, the following
resolutions were adopted:
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of this Corporation, whose actual signatures are shown below:
<TABLE>
<CAPTION>
NAME POSITION ACTUAL SIGNATURE
---- -------- ----------------
<S> <C> <C>
John Batty Vice President/Chief Financial Officer X
-------------------------
</TABLE>
acting for and on behalf of the Corporation and as its act and deed be, and he
or she hereby is, authorized and empowered:
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to CivicBank of Commerce ("Lender"), as
security for the payment of any loans, any promissory notes, or any other
or further indebtedness of LEIGH BELDEN to Lender at any time owing,
however the same may be evidenced, any property now or hereafter belonging
to the Corporation or in which the Corporation now or hereafter may have
an interest, including without limitation all real property and all
personal property (tangible or intangible) of the Corporation. Such
property may be mortgaged, pledged, transferred, endorsed, hypothecated,
or encumbered at the time such loans are obtained or such indebtedness is
incurred, or at any other time or times, and may be either in addition to
or in lieu of any property theretofore mortgaged, pledged, transferred,
endorsed, hypothecated, or encumbered. The provisions of these Resolutions
authorizing or relating to the pledge, mortgage, transfer, endorsement,
hypothecation, granting of a security interest in, or in any way
encumbering, the assets of the Corporation shall include, without
limitation, doing so in order to lend collateral security for the
indebtedness, now or hereafter existing, and of any nature whatsoever, of
LEIGH BELDEN to Lender. The Corporation has considered the value to itself
of lending collateral in support of such indebtedness, and the Corporation
represents to Lender that the Corporation is benefitted by doing so.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be required
by Lender, and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to
the giving of the liens and encumbrances.
FURTHER ACTS. To do and perform such other acts and things and to execute
and deliver such other documents and agreements, including agreements
requiring disputes with Lender to be submitted to binding arbitration for
final resolution and waiving the right to a trial by jury, as he or she may
in his or her discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that the Corporation will notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (a) change in the name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
management of the Corporation, (d) change in the authorized signer(s), (e)
conversion of the Corporation to a new or different type of business entity, or
(f) change in any other aspect of the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender. No change in the
name of the Corporation will take effect until after Lender has been notified.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of his or
her revocation shall have been delivered to and received by Lender. Any such
notice shall not affect any of the Corporation's agreements or commitments in
effect at the time notice is given.
I FURTHER CERTIFY that the officer, employee, or agent named above is duly
elected, appointed, or employed by or for the Corporation, as the case may be,
and occupies the position set opposite the name; that the foregoing Resolutions
now stand of record on the books of the Corporation; and that the Resolutions
are in full force and effect and have not been modified or revoked in any
manner whatsoever.
<PAGE> 8
IN TESTIMONY WHEREOF, I have hereunto set my hand on October 20, 1998 and
attest that the signatures set opposite the names listed above are their
genuine signatures.
CERTIFIED TO AND ATTESTED BY:
X___________________________________
X___________________________________
NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, it is advisable to
have this certificate signed by a second Officer or Director of the
Corporation.
<PAGE> 1
EXHIBIT 10.26
PROMISSORY NOTE
January 1, 1999
FOR VALUE RECEIVED, the undersigned hereby promises to pay to Verilink
Corporation ("Verilink") at San Jose, California, the principal amount of the
advances set forth on Schedule 1, plus interest thereon at the rate of six
percent (6%) per annum, compounded monthly, commencing on the dates that the
advances were made to the undersigned, as set forth on Schedule 1. Advances
hereunder shall not exceed the principal sum of $1,000,000.
All principal and accrued interest due under this Note shall be paid on or
before December 31, 1999. Principal and interest are payable in lawful money of
the United State.
Each payment shall be credited first to the interest and the remainder to
principal, and interest shall thereupon cease upon principal so credited.
This Note may be prepaid at any time, in whole or in part, without premium
or penalty.
If action should be instituted on this Note, the undersigned agrees to pay
the holder, in addition to such amounts owed pursuant to this Note, all costs of
collection, including a reasonable sum of attorneys' fees.
This Promissory Note shall be governed by the laws of the State of
California.
This Promissory Note supersedes the Promissory Note between the
undersigned and Verilink dated September 1, 1998.
/s/ LEIGH S. BELDEN
--------------------------------------
Leigh S. Belden
<PAGE> 1
EXHIBIT 10.27
PROMISSORY NOTE
February 9, 1999
FOR VALUE RECEIVED, the undersigned hereby promises to pay to Verilink
Corporation ("Verilink") at 145 Baytech Drive, San Jose, California, the
principal amounts of the advances set forth on Schedule 1, plus interest thereon
at the rate of eight percent (8%) per annum, compounded monthly, commencing on
the dates that the advances were made to the undersigned. Advances hereunder
shall be used to renovate 46,000 square feet of office space located at 161
Nortech Drive, San Jose, California (the "Premises") leased by the undersigned
from IDEC Corporation (the "Master Lease") and to pay the undersigned's
obligations to IDEC under the Master Lease for the portion of the Premises not
subleased by Verilink and shall not exceed the principal sum of $500,000.
Principal and accrued interest under this Promissory Note shall be paid
by application of all sums received by the undersigned from the sublease by the
undersigned of the Premises, less all sums required to be paid by the
undersigned to IDEC pursuant to the Master Lease. Such payments shall be made to
Verilink at the end of each calendar quarter after the date hereof.
Notwithstanding the foregoing, all principal and accrued interest due under this
Promissory Note shall be paid in full on or before November 30, 2001. Principal
and interest are payable in lawful money of the United States.
Each payment shall be credited first to the interest and the remainder
to principal, and interest shall thereupon cease upon principal so credited.
This Promissory Note may be prepaid at any time, in whole or in part,
without premium or penalty.
If action should be instituted on this Promissory Note, the undersigned
agrees to pay the holder, in addition to such amounts owed pursuant to this
Promissory Note, all costs of collection, including a reasonable sum of
attorneys' fees.
This Promissory Note shall be governed by the laws of the State of
California.
BAYTECH ASSOCIATES
By [SIG]
---------------------------------
General Partner
By [SIG]
---------------------------------
General Partner
2/99
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS FINANCIAL SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
THE FINANCIAL STATEMENTS CONTAINED IN THE FORM 10-Q OF VERILINK CORPORATION FOR
THE SECOND FISCAL QUARTER ENDED DECEMBER 28, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-27-1999
<PERIOD-START> JUL-29-1998
<PERIOD-END> DEC-27-1998
<CASH> 14,525
<SECURITIES> 15,225
<RECEIVABLES> 11,243
<ALLOWANCES> 191
<INVENTORY> 6,272
<CURRENT-ASSETS> 48,977
<PP&E> 18,590
<DEPRECIATION> 10,164
<TOTAL-ASSETS> 66,111
<CURRENT-LIABILITIES> 14,290
<BONDS> 0
0
0
<COMMON> 139
<OTHER-SE> 51,682
<TOTAL-LIABILITY-AND-EQUITY> 66,111
<SALES> 17,107
<TOTAL-REVENUES> 17,107
<CGS> 8,435
<TOTAL-COSTS> 8,435
<OTHER-EXPENSES> 12,291
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (3,228)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,228)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,228)
<EPS-PRIMARY> (0.23)<F1>
<EPS-DILUTED> (0.23)
<FN>
<F1>FOR PURPOSES OF THIS EXHIBIT, PRIMARY MEANS BASIC.
</FN>
</TABLE>
