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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM 10-K/A1
Annual Report Pursuant To Section 13 or 15(d) Of The
Securities Exchange Act Of 1934
For the fiscal year ended March 31, 1995
Commission file number 0-22210
SUMMA FOUR, INC.
(Exact name of registrant as specified in its charter)
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Delaware 02-0329497
(State or other jurisdiction of incorporation or organization) (IRS employer identification number)
25 Sundial Avenue, Manchester, New Hampshire 03103
(Address of principal executive office)
Registrant's telephone number, including area code: (603) 625-4050
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.01 Par Value
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(Title of Class)
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. (X).
The aggregate market value of the voting stock held by non-affiliates of the
registrant was approximately $150,438,000 as of April 28, 1995. There were
6,354,537 shares of Common Stock outstanding as of May 31, 1995.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the definitive proxy statement (the "Definitive Proxy Statement") to
be filed with the Securities and Exchange Commission relative to the Company's
1995 annual meeting of stockholders are incorporated by reference in Part III.
Index to Exhibits begins on Page 26
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ITEM 14-Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) (1) Financial Statements**
See index in Part II, Item 8
(2) Financial Statement Schedule**
Schedule II Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable and therefore have
been omitted.
(3) Index to Exhibits
The exhibits filed as part of this form 10-K are
listed on the exhibit index immediately preceding such
exhibits, which exhibit index is incorporated herein by
reference. The Company's current management contracts and
executive compensation plans and arrangements are listed in
the exhibit index incorporated herein by reference at exhibit
numbers 10.7-10.18, 10.20, 10.31, 10.33 and 10.34.
(b) On March 6, 1995 a report on Form 8-K was filed pursuant to
Item 5 to disclose the implementation of a Rights Plan and a dividend
distribution of rights with respect thereto.
The Company will provide copies of the exhibit index, exhibits and
Schedule II to shareholders upon request.
Exhibit Index
(3) Listing of Exhibits
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Exhibit No. Description
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* 3.1 - Amended and Restated Certificate of Incorporation
of the Registrant.
* 3.2 - Amended and Restated By-laws of the Registrant.
* 4.1 - Specimen Certificate representing the Registrant's
Common Stock.
*10.1 - Lease Agreement, dated July 18, 1990, by and
between the Registrant and Northern Manchester
Trust.
*10.2 - Lease Agreement, as amended, dated December 21,
1992, by and between the Registrant and 1100
Corporation.
*10.3 - Lease Agreement, dated February 15, 1993, by and
between the Registrant and Atrium Executive
Center, Inc.
*10.4 - Lease Agreement, dated August 1, 1992, by and
between the Registrant and Duffell Financial and
Construction Company.
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*10.5 - Registration Agreement, dated July 25, 1984, as
amended, by and among the Registrant and certain
investors.
*10.6 - Purchase Agreement, dated July 25, 1984, by and
among the Registrant and certain investors.
*10.7 - +1994 Executive Incentive Bonus Plan.
*10.8 - +1993 Stock Incentive Plan, as amended.
*10.9 - +1993 Employee Stock Purchase Plan.
*10.10 - +1993 Director Stock Option Plan.
*10.11 - +Stock Option Plan of August 1, 1992.
*10.12 - +Incentive Stock Option Plan of January 1, 1985.
*10.13 - +Stock Option Agreement, dated July 23, 1987, by
and between the Registrant and Mr. William M.
Scranton.
*10.14 - +Non-Qualified Employee Option Agreement, dated
July 23, 1987, by and between the Registrant and Mr.
Barry R. Gorsun.
*10.15 - +Stock Option Agreement, dated July 1, 1984, by and
between the Registrant and Mr. Robert A. Degan.
*10.16 - +Employment Agreement, dated April 3, 1993, by
and between the Registrant and Thomas A. St.
German.
*10.17 - +Agreement, dated April 30, 1991, by and between
the Registrant and Barry R. Gorsun.
*10.18 - +Promissory Note, dated February 12, 1993, by
Barry R. Gorsun.
*10.19 - Promissory Note, dated April 1, 1991, by Summa
Four, Ltd.
*10.20 - +Promissory Note and amendment thereto, dated
April 11, 1989, by John T. Boatwright.
*10.21 - Letter Agreement, dated October 15, 1992, by and
between the Registrant and Fleet Bank of
Massachusetts, N.A., as modified.
*10.22 - Customer Purchase Agreement, dated November 20,
1992, by and between the Registrant and
Sprint/United Management Company.
*10.23 - Specialty Switches Contract, dated March 13, 1992,
by and between the Registrant and AT&T, Inc.
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*10.24 - Customer Purchase Agreement, dated September 11,
1991, by and between the Registrant and United
States Advanced Networks.
*10.25 - Customer Purchase Agreement, dated October 10,
1990, by and between the Registrant and Unisys
Corporation.
*10.26 - Resale Agreement, dated November 5, 1992, by and
between the Registrant and IBM Canada Ltd.
*10.27 - Agreement, dated October 14, 1992, by and between
the Registrant and Claircom Communications
Group, L.P.
*10.28 - Release, Settlement and License Agreement, dated
November 2, 1992, by and among the Registrant,
Omnitel Corporation, Aspect Telecommunications
Corporation and Richard L. Scully.
*10.29 - License Agreement, dated December 1, 1983, by and
between the Registrant and Industrial Programming,
Inc.
*10.30 - Product Development and Licensing Agreement,
dated January 19, 1990, by and between the
Registrant and The Telephone Connection, Inc.
*10.31 - +Letter Agreement, dated June 16, 1993, by and
between the Registrant and Mr. Mel R. Ethem.
10.33 - +Severance and Settlement Agreement and Release,
dated August 8, 1994, by and between the Registrant
and James J. Fiedler.
10.34 - +Agreement, dated August 1, 1994, by and between
the Registrant and Barry R. Gorsun.
**10.35 - +Amendment dated August 31, 1994 to Lease
Agreement dated July 18, 1990 with Northern
Manchester Trust.
**11 - Statement Regarding Computation of Per Share
Earnings.
**21 - Subsidiaries of the Registrant.
**23 - Consent of Coopers & Lybrand.
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* Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (File No. 33-66602) as declared effective by the
Securities and Exchange Commission (the "Commission") on September 23,
1993.
** Included in the Registrant's Annual Report on Form 10-K for the
fiscal year ended March 31, 1995, filed with the Commission on June
27, 1995.
+ Management contract or compensatory plan or arrangement filed as an
exhibit pursuant to Item 14(c) of this report.
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Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
SUMMA FOUR, INC.
By: /s/ Thomas A. St. Germain
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Thomas A. St. Germain
Senior Vice President,
Treasurer & Chief
Financial Officer
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Exhibit 10.33
SEVERANCE AND SETTLEMENT AGREEMENT AND RELEASE
AGREEMENT made as of the 8th day of August, 1994, by and between
Summa Four, Inc. (the "Company") and James Fiedler (the "Employee").
WHEREAS, the parties wish to resolve amicably the Employee's separation
from the Company and establish the terms of the Employee's severance
arrangement;
NOW, THEREFORE, in consideration of the promises and conditions set
forth herein, the sufficiency of which is hereby acknowledged, the Company and
the Employee agree as follows:
1. RESIGNATION DATE. The Employee's effective date of resignation
as an employee and director of the Company is August 8, 1994 in accordance with
the resignation letter attached hereto.
2. CONSIDERATION. In return for the execution of this Agreement,
the Company agrees (1) to pay the Employee severance payments equal to 12 months
of the Employee's base salary of One Hundred and Ninety Thousand Dollars
($190,000) less all required withholdings as severance pay and (2) to accelerate
the vesting of stock options pursuant to the Company's stock option plan as
follows: (a) accelerate the vesting of stock options due to vest in February
1994 (15,400 shares at $2.57 per share) to the date of this Agreement, (b)
accelerate the vesting of stock options due to vest in 1995 (15,400 shares at
$4.57 per share) to the date of this Agreement, and (c) accelerate the vesting
of all options granted in July 1993 (21,000 shares at $9.14 per share, 4,200 of
which are currently vested) to the date of this Agreement. The
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severance pay will be paid to the Employee by direct deposit in twelve monthly
installments beginning eight (8) days after the date of execution of this
Agreement. The stock options referred to in clauses (a), (b) and (c) in this
Paragraph 2 shall be exercisable for 365 days from the date of this Agreement.
3. COMMUNICATIONS. The Employee shall not initiate any communication or
engage in any communication with Company directors, officers, stockholders,
affiliates, agents, customers or employees or the media regarding his
resignation or any matters relating to his resignation. The Employee and the
Company shall respond to any inquiry regarding the Employee's resignation from
the Company by stating that the Employee resigned due to philosophical
differences with the Company's Board of Directors.
4. VOICE MAIL. The Employee shall be entitled to utilize his voice
mailbox at the Company through September 30, 1994.
5. INDEMNIFICATION. The Company shall not amend its Certificate of
Incorporation in any way which will adversely affect in a material manner the
Employee's right to indemnification thereunder for any claims arising while the
Employee was an officer or director of the Company, including but not limited to
the Employee's right to obtain separate legal counsel at the Company's expense
if the Company's counsel, in his/her sole reasonable discretion, determines that
a material conflict exists.
6. HEALTH INSURANCE. The Company will pay the Employee's COBRA payment
for health and dental coverage for a period of 18 months from the date of
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this Agreement, provided that the Employee makes a timely COBRA election. The
Company's obligations under this Paragraph 6 shall cease if the Employee becomes
reemployed and the Employee's new employer makes available to its employees
health and dental insurance coverage. The Employee shall forthwith notify the
Company of the fact of his reemployment.
7. BUSINESS EXPENSES. The Employee acknowledges that he has received
reimbursement from the Company for any and all business expenses.
8. RELEASE. The Employee hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, its officers,
directors, stockholders, corporate affiliates, agents and employees from any and
all claims, charges, complaints, demands, actions, causes of action, suits,
rights, debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every kind
and nature which he ever had or now has against the Company, its officers,
directors, stockholders, corporate affiliates, agents and employees, including,
but not limited to, all claims arising out of his employment, all employment
discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
sec. 2000e ET SEQ., the Americans with Disabilities Act, 29 U.S.C. sec. 706 ET
SEQ., the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 ET SEQ., the
New Hampshire Law Against Discrimination, R.S.A. 354-A, and damages arising out
of all employment discrimination claims, wrongful discharge claims or other
common
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law claims and damages. This Release shall not be construed as releasing any
rights the Employee may have under this Agreement.
9. COVENANT NOT TO SUE. The Employee further represents and
warrants that he has not filed any complaints, charges, or claims for relief
against the Company, its officers, directors, stockholders, corporate
affiliates, agents or employees with any local, state or federal court or
administrative agency which currently are outstanding. If he has done so, he
will forthwith dismiss all such complaints, charges, or claims for relief with
prejudice. The Employee further agrees and covenants not to bring any
complaints, charges or claims against the Company, its officers, directors,
stockholders, corporate affiliates, agents or employees with respect to any
matters arising out of his employment with or termination by the Company.
10. NO REINSTATEMENT. The Employee understands and agrees that, as
a condition for payment to him of the above-described sums, he shall not be
entitled to any employment with the Company or with any of its corporate
affiliates at any time in the future, and that he will not apply for employment
with the Company or with any of its corporate affiliates.
11. NON-COMPETE.
(a) For a period of eighteen (18) months after the date
of this Agreement, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner,
stockholder, officer, employee, director, joint venturer, investor, lender, or
in any other employment,
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consulting or ownership capacity whatsoever (other than as the holder of not
more than one percent (1%) of the total outstanding stock of a publicly held
company), engage in any relationship with Excel, Inc., Harris Corp. or Redcom
Laboratories; or
(ii) recruit, solicit or induce, or attempt to
induce, any employee or employees of the Company to terminate their employment
with, or otherwise cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to
divert or to take away, the business or patronage of any of the clients,
customers or accounts, or prospective clients, customers or accounts, of the
Company which were contacted, solicited or served by the Employee while employed
by the Company.
(b) If any restriction set forth in this Paragraph 11 is
found by any court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to extend only over the
maximum period of time, range of activities or geographic area as to which it
may be enforceable.
(c) The restrictions contained in this Paragraph 11 are
necessary for the protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for such purpose. The Employee
agrees that any breach of this Paragraph 11 will cause the Company substantial
and irrevocable damage and therefore, in the event of any such breach, in
addition to such other remedies which may be available, the Company shall have
the right to seek specific performance and injunctive relief.
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12. REMEDIES. In the event the Employee breaches any provision of this
Agreement, the Company shall also have the right to terminate all payments
called for by Paragraphs 2, 6 and 7 and the Employee shall forfeit all vested
but unexercised options called for by Paragraph 2.
13. NATURE OF AGREEMENT. The Employee understands and agrees that this
Agreement is a severance and settlement agreement and does not constitute an
admission of liability or wrongdoing on the part of the Company.
14. AMENDMENT. This Agreement shall be binding upon the parties and may
not be abandoned, supplemented, changed or modified in any manner, orally or
otherwise, except by an instrument in writing of concurrent or subsequent date
signed by a duly authorized representative of the parties hereto. This Agreement
is binding upon and shall inure to the benefit of the parties and their
respective agents, assigns, heirs, executors, successors and administrators.
15. VALIDITY. Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid, the
validity of the remaining parts, terms, or provisions shall not be affected
thereby and said illegal and invalid part, term or provision shall be deemed not
to be a part of this Agreement.
16. CONFIDENTIALITY. The parties understand and agree that the terms
and contents of this Agreement, and the contents of the negotiations and
discussions resulting in this Agreement, shall be maintained as confidential by
the Company, the Employee, their agents and representatives, and the dispute
resolved by this
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Agreement shall also remain confidential, and none of the above shall be
disclosed except (1) the extent required by federal or state law, (2) as
otherwise agreed to in writing by the authorized agent of each party, (3) as
provided in Paragraph 3, above or (4) to enforce this Agreement.
17. ENTIRE AGREEMENT. This Agreement contains and constitutes the
entire understanding and agreement between the parties hereto with respect to
the severance and settlement and cancels all previous oral and written
negotiations, agreements, commitments, and writings in connection therewith. The
Employee shall, however, at all times continue to be bound by the Summa Four
Confidentiality Agreement attached hereto.
18. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of New Hampshire.
19. ACKNOWLEDGMENTS. The Employee acknowledges that he has been given
twenty-one (21) days to consider this Agreement and that the Company advised him
to consult with an attorney of his own choosing prior to signing this Agreement.
The Employee may revoke this Agreement for a period of seven (7) days after the
execution of this Agreement, and the Agreement shall not be effective or
enforceable until the expiration of this seven (7) day revocation period.
20. VOLUNTARY ASSENT. The Employee affirms that no other promises or
agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement, and that he fully understands
the meaning and intent of this Agreement. The Employee states and represents
that he
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has had an opportunity to fully discuss and review the terms of this Agreement
with an attorney. The Employee further states and represents that he has
carefully read this Agreement, understands the contents herein, freely and
voluntarily assents to all of the terms and conditions hereof, and signs his
name of his own free act.
IN WITNESS WHEREOF, all parties have set their hand and seal to this
Agreement as of the date written above.
_____________________________________ Date:_____________________________
JAMES FIEDLER
SUMMA FOUR, INC.
By:__________________________________ Date:_____________________________
Barry R. Gorsun
President and
Chief Executive Officer
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Exhibit 10.34
AGREEMENT
THIS AGREEMENT IS made and entered into effective the 1st day of
August, 1994, by and between BARRY GORSUN, of 25 Sundial Avenue, Manchester, New
Hampshire 03103 (hereinafter referred to as "Executive"), and SUMMA FOUR, INC.
of 25 Sundial Avenue, Manchester, New Hampshire 03103 (hereinafter referred to
as the "Company").
RECITALS
WHEREAS, Executive is a valued employee of the Company and is currently
Chairman, Chief Executive Officer, President and a member of the Board of
Directors of the Company;
WHEREAS, Executive desires to receive assurances concerning the receipt
of severance pay from the Company in the event of his Resignation, Termination
or involuntary separation from the Company on grounds other than "for cause";
WHEREAS, the Company desires to provide written severance pay
assurances to Executive to induce him to continue his service to the Company;
WHEREAS, the parties hereto desire to promote their mutual interests by
imposing certain restrictions and/or obligations on themselves.
NOW THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. SEVERANCE PAYMENTS. In the event that Executive's employment with
the Company is (a) terminated by the Company for any reason other than cause
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("Termination"), Executive shall be entitled to receive monthly severance
payments from the Company for eighteen (18) months from the date of his
Termination, or (b) if Executive shall resign after a new President/Chief
Executive Officer has been appointed and at a time when he could not be
terminated for cause ("Resignation"), he shall be entitled to receive severance
payments from the Company for six (6) months from the date of his Resignation.
For purposes of this section, the monthly severance payments to be paid to
Executive shall be based upon his annual base salary with the Company as of the
date of Resignation or Termination. Additionally, in the event of Executive's
Resignation or Termination, the Company will maintain for a period of eighteen
(18) months from the date of Resignation or Termination, then existing life,
medical, and dental insurance benefits.
2. BONUS PAYMENT. Executive shall be entitled to payment of his bonus
prorated for the period of time he was employed during the fiscal year prior to
his Resignation or Termination. The bonus shall be payable when other executive
bonus payments are made for the fiscal year.
3. STOCK OPTIONS. In consideration of Executive's long years of service
to the Company, in the event of Executive's Resignation or Termination as
provided herein, all of Executive's outstanding unvested employee stock options
shall vest as of the date of Resignation or Termination. The Compensation
Committee of the Board will, at that time, consider whether to grant Executive
one (1) year from the date of Resignation or Termination to exercise all or any
portion of his employee stock options outstanding or accelerated as of the date
of Resignation or Termination.
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4. COMPANY DISCLAIMER OF LIABILITY. The Company's payment of severance
pay to Executive shall not in any way be construed as an admission by the
Company that it has acted wrongfully with respect to Executive, or that
Executive has any claims whatsoever against the Company, its officers, employees
or agents.
5. RELEASE BY EXECUTIVE. In consideration of the Company's severance
payments outlined in Section 1 above, Executive does hereby release, remise and
forever discharge the Company, its successors, assigns, officers, directors and
employees from any and all causes of action, suit, demand, and claims which
arose against the Company during the time of or as a result of Executive's
employment with the Company of any nature whatsoever, known or unknown,
suspected or unsuspected, including age, race, religion or other forms of
discrimination; or claims arising out of the Company's right to terminate its
employees; or claims for alleged personal injuries, emotional distress and pain
and suffering which arose out of Executive's employment with the Company.
6. GENERAL PROVISIONS. This Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes any and all prior agreements
and understandings between the parties hereto pertaining to the subject matter
of this Agreement. This Agreement is made under the laws of the State of New
Hampshire and shall be construed according to New Hampshire law. This Agreement
may only be modified, amended or cancelled by a written amendment signed by the
parties.
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THE FOREGOING AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS. THE SIGNATURES BELOW ATTEST THAT THE PARTIES HAVE CAREFULLY READ THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above-mentioned.
SUMMA FOUR, INC.
By:___________________________________ ____________________________________
Its: Barry Gorsun
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