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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 2 to Form 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
FOR THE FISCAL YEAR ENDED MARCH 31, 1994
[ ] 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 0-22210
SUMMA FOUR, INC.
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(Exact name of registrant as specified in its charter)
Delaware 02-0329497
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
25 SUNDIAL AVENUE
MANCHESTER, NEW HAMPSHIRE 03103
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(Address of principal executive offices) (Zip code)
(603) 625-4050
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(Registrant's telephone number, including area code)
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
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
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was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES: [X] NO: [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant as of April 30, 1994 was $209,154,000. As of April 30, 1994,
6,122,987 shares of the Registrant's Common Stock, $.01 par value, were
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Specified portions of the Company's Proxy Statement, which is expected to
be filed within 120 days after the end of the Company's fiscal year, are
incorporated by reference into Part III (Items 10, 11, 12 and 13) of this
Report.
This Amendment No. 2 on Form 10-K/A to the Registrant's Annual Report on Form
10-K for the fiscal year ended March 31, 1994 (the "Report") is being filed to
amend and restate the Exhibit Index to the Report. Such Exhibit Index is hereby
amended and restated in its entirety. The actual exhibits previously filed with
the Securities and Exchange Commission with the Report, or incorporated therein
by reference, are not being amended. New exhibits listed are being filed
herewith.
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
3.1 - Amended and Restated Certificate of Incorporation of the
Registrant. (1)
3.2 - Amended and Restated By-laws of the Registrant. (1)
4.1 - Specimen Certificate representing the Registrant's Common
Stock. (1)
10.1 - Lease Agreement, dated July 18, 1990, by and between the
Registrant and Northern Manchester Trust. (1)
10.2 - Lease Agreement, as amended, dated December 21, 1992, by and
between the Registrant and 1100 Corporation. (1)
10.3 - Lease Agreement, dated February 15, 1993, by and between the
Registrant and Atrium Executive Center, Inc. (1)
10.4 - Lease Agreement, dated August 1, 1992, by and between the
Company and Duffell Financial and Construction Company. (1)
10.5 - Registration Agreement, dated July 25, 1984, as amended, by and
among the Registrant and certain investors. (1)
10.6 - Purchase Agreement, dated July 25, 1984, by and among the
Registrant and certain investors. (1)
10.7 - +1994 Executive Incentive Bonus Plan. (1)
10.8 - +1993 Stock Incentive Plan, as amended. (1)
10.9 - +1993 Employee Stock Purchase Plan. (1)
10.10 - +1993 Director Stock Option Plan. (1)
10.11 - +Stock Option Plan of August 1, 1992. (1)
10.12 - +Incentive Stock Option Plan of January 1, 1985. (1)
10.13 - +Stock Option Agreement, dated July 23, 1987, by and between the
Registrant and Mr. William M. Scranton. (1)
10.14 - +Non-Qualified Employee Option Agreement, dated July 23, 1987, by
and between the Registrant and Mr. Barry R. Gorsun. (1)
10.15 - +Stock Option Agreement, Dated July 1, 1984, by and between the
Registrant and Mr. Robert A. Degan. (1)
10.16 - +Employment Agreement, dated April 3, 1993, by and between the
Registrant and Thomas A. St. Germain. (1)
10.17 - +Agreement, dated April 30, 1991, by and between the Registrant
and Barry R. Gorsun. (1)
10.18 - +Promissory Note, dated February 12, 1993, by Barry R. Gorsun. (1)
10.19 - Promissory Note, dated April 1, 1991, by Summa Four, Ltd. (1)
10.20 - +Promissory Note and amendment thereto, dated April 11, 1989, by
John T. Boatwright. (1)
</TABLE>
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EXHIBIT INDEX
10.21 - Letter Agreement, dated October 15, 1992, by and between the
Registrant and Fleet Bank of Massachusetts, N.A., as modified. (1)
10.22 - Customer Purchase Agreement, dated November 20, 1992, by and
between the Registrant and Sprint/United Management Company. (1)
10.23 - Specialty Switches Contract, dated March 13, 1992, by and between
the Registrant and AT&T, Inc. (1)
10.24 - Customer Purchase Agreement, dated September 11, 1991, by and
between the Registrant and United States Advanced Networks. (1)
10.25 - Customer Purchase Agreement, dated October 10, 1990, by and
between the Registrant and Unisys Corporation. (1)
10.26 - Resale Agreement, dated November 5, 1992, by and between the
Registrant and IBM Canada Ltd. (1)
10.27 - Agreement, dated October 14, 1992, by and between the Registrant
and Claircom Communications Group, L.P. (1)
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. (1)
10.29 - License Agreement, dated December 1, 1983, by and between the
Registrant and Industrial Programming, Inc. (1)
10.30 - Product Development and Licensing Agreement, dated January 19,
1990, by and between the Registrant and The Telephone Connection,
Inc. (1)
10.31 - +Letter Agreement, dated June 16, 1993, by and between the
Registrant and Mr. Mel R. Ethem. (1)
10.32 - Loan Modification Agreement, dated July 28, 1993, by and between
the Registrant and Fleet Bank of Massachusetts, N.A.
10.33 - Promissory Note, dated July 28, 1993, by and between the
Registrant and Fleet Bank of Massachusetts, N.A.
11 - Statement Regarding Computation of Per Share Earnings. (2)
21 - Subsidiaries of the Registrant. (2)
23 - Consent of Coopers & Lybrand (3)
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(1) Incorporation 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
+ Management contract or compensatory plan or arrangement filed as an exhibit
pursuant to Item 14(c) of this report.
(2) Incorporation herein by reference to the Registrant's Annual Report on
Form 10-K for the fiscal year ended March 31, 1994 as filed with the
Commission on June 21, 1994.
(3) Incorporation herein by reference to the Registrant's Amendment No.1 to its
Annual Report on Form 10-K for the fiscal year ended March 31, 1994, filed
with the Commission on March 6, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this amendment to the report to be signed on its
behalf by the undersigned thereunto duly authorized.
SUMMA FOUR, INC.
By: /s/ Jeffrey A. Weber
-----------------------
Vice President and
Chief Financial Officer
Dated: June 19, 1998
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EXHIBIT 10.32
LOAN MODIFICATION AGREEMENT
This Agreement is made as of July 28, 1993 between Summa Four, Inc., a
Delaware corporation (the "Borrower") and Fleet Bank of Massachusetts, N.A. (the
"Bank"). For good and valuable consideration, receipt and sufficiency or which
are hereby acknowledged, the Borrower and the Bank act and agree as follows:
1. Reference is made to (i) that certain letter agreement dated
October 15, 1992 between the Borrower and the Bank (the "Letter Agreement"),
(ii) that certain $3,000,000 face amount Secured Time Note dated October 15,
1992 (the "1992 Revolving Note") made by the Borrower and payable to the order
of the Bank, (iii) that certain $6,000,000 face amount promissory note of even
date herewith (the "1993 Revolving Note") and (iv) that certain Inventory and
Accounts Receivable Security Agreement dated October 15, 1992 (the "Security
Agreement") given by the Borrower to the Bank. The Letter Agreement and the 1993
Revolving Note are hereinafter collectively referred to as the "Financing
Documents".
2. The Bank hereby releases the security interest granted by the
Security Agreement and the Bank and the Borrower agree that the Security
Agreement is terminated.
3. The Letter Agreement is hereby amended, effective as of the
date hereof:
a. By deleting in its entirety Section 1.1 of the Letter
Agreement and by substituting in its stead the following:
"1.1. REFERENCE TO NOTE. Reference is made to that certain
$6,000,000 face principal amount promissory note dated July
28, 1993 (the 'Revolving Note') made by the Borrower and
payable to the order of the Bank."
b. By deleting from clause (a) of the second paragraph of Section
1.5 of the Letter Agreement the words "and/or the Security
Agreement".
c. By deleting from the second sentence of Subsection 2.1(a) of
the Letter Agreement the words ", to grant the security
interests contemplated by the Security Agreement".
d. By deleting from the introductory paragraph of Article III of
the Letter Agreement the reference to the Security Agreement.
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e. By deleting from the second sentence of Section 3.2 of the
Letter Agreement the reference to the Security Agreement.
f. By adding to clause (ii) of Section 3.6 of the Letter
Agreement, at the end thereof, the following:
"Notwithstanding the foregoing, after the completion of a
public offering of the Borrower's common stock, the Borrower
need not furnish monthly statements in accordance with the
immediately preceding sentence but will be required instead to
furnish to the Bank, within 45 days after the end of each
fiscal quarter of the Borrower, financial statements for the
fiscal quarter then ended and for the fiscal year to date
containing all of the information required by Form 10-Q
promulgated under the Securities Exchange Act of 1934, as
amended. The Borrower will also provide to the Bank, promptly
upon filing same with the Securities and Exchange Commission,
the National Association of Securities Dealers, Inc. and/or
any securities exchange or upon furnishing same to its
stockholders generally, copies of all periodic reports,
current reports and other reports and proxy statements."
g. By adding to the first sentence of clause (iii) of Section
3.6, immediately after the words "annual statement", the
following:
"or quarterly statement"
h. By deleting in its entirety Section 3.8 of the Letter
Agreement and by substituting in its stead the following:
"3.8. CAPITAL BASE. The Borrower will maintain, as at
the end of each fiscal quarter, a consolidated Capital Base
which shall not be less than the then-effective Capital Base
Requirement. As used herein, the 'Capital Base Requirement'
will be deemed to have been $5,250,000 as at March 31, 1993
and will be deemed increased as at the end of each fiscal
quarter thereafter (beginning June 30, 1993) so as to equal
the sum of (i) the Capital Base Requirement in effect as at
the immediately preceding quarter-end, plus (ii) 90% of the
net proceeds of any equity securities sold by
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the Borrower during the fiscal quarter then ending or any
Subordinated Debt issued by the Borrower or any Subsidiary
during such fiscal quarter then ending (nothing contained
herein being deemed to authorize the incurrence of any such
Subordinated Debt), plus (iii) 90% of the consolidated Net
Income of the Borrower and Subsidiaries during such fiscal
quarter then ending (but without giving effect to any Net Loss
during such fiscal quarter)."
i. By deleting from the introductory paragraph of Article IV of
the Letter Agreement the reference to the Security Agreement.
j. By deleting from Section 4.5 of the Letter Agreement the
amount "$75,000" and by substituting in its stead the
following:
"$250,000"
k. By deleting from the first sentence of Section 4.11 of the
Letter Agreement the following words: "and providing all such
financing statements, certificates and other documentation as
the Bank may request in order to maintain the perfection and
priority of the security interests granted or intended to be
granted pursuant to the Security Agreement".
l. By adding to Section 4.13 of the Letter Agreement, at the end
thereof, the following:
"Notwithstanding the foregoing, the first sentence of this
Section 4.13 will be deemed to be of no further force or
effect upon the completion by the Borrower of an initial
public offering which generates at least $5,000,000 in net
proceeds to the Borrower."
m. By deleting from Section 5.1 of the Letter Agreement clauses
(k) and (l) thereof.
n. By relettering clause (m) of Section 5.1 of the Letter
Agreement so that same will become clause "(k)".
o. By deleting from clause (c) of Section 5.2 of the Letter
Agreement the reference therein to the Security Agreement.
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p. By deleting from Section 6.1 of the Letter Agreement all
references therein to the Security Agreement.
q. By deleting the period at the end of the first sentence of
Section 6.3 of the Letter Agreement and by substituting in its
stead the following:
"; provided, however, that effective as of July 28, 1993 the
aforesaid rate of 1/2% per annum will be deemed reduced to
3/8% per annum."
r. By changing the Bank's notice address to:
Fleet Bank of Massachusetts, N.A.
High Technology Group
75 State Street
Boston, MA 02109
Attention: Thomas W. Davies, Vice President
s. By deleting in its entirety the definition of "Expiration
Date" appearing in Section 7.1 of the Letter Agreement and by
substituting in its stead the following:
"'Expiration Date' - September 1, 1994, unless extended by the
Bank, which extension may be given or withheld by the Bank in
its sole discretion."
t. By deleting from the definition of "Loan Documents" appearing
in Section 7.1 of the Letter Agreement the reference to the
Security Agreement.
u. By deleting in its entirety the definition of "Maximum
Revolving Amount" appearing in Section 7.1 of the Letter
Agreement and by substituting in its stead the following:
"'Maximum Revolving Amount' - Six Million ($6,000,000)
Dollars."
v. By deleting in its entirety the definition of "Obligation"
appearing in Section 7.1 of the Letter Agreement and by
substituting in its stead the following:
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"'Obligations' - Each and every liability, undertaking,
agreement, indebtedness and obligation now or hereafter owed
by the Borrower to the Bank or now or hereafter made by the
Borrower with or for the benefit of the Bank."
w. By deleting from the definition of "Principal Office"
appearing in Section 7.1 of the Letter Agreement the address
"28 State Street" and by substituting in its stead the
following:
"75 State Street"
x. By deleting in its entirety clause (i) of the second sentence
of the definition of "Qualified Receivables" appearing in
Section 7.1 of the Letter Agreement.
y. By deleting in its entirety Section 7.2 of the Letter
Agreement.
4. Wherever in any Financing Document, or in any certificate or
opinion to be delivered in connection therewith, reference is made to a "letter
agreement", from and after the date hereof same will be deemed to refer to the
Letter Agreement, as hereby amended.
5. Simultaneously with the execution and delivery of this
Agreement, the Borrower is executing and delivering to the Bank the 1993
Revolving Note in substitution for the 1992 Revolving Note. The 1993 Revolving
Note is a $6,000,000 promissory note of the Borrower, substantially in the form
attached hereto as Exhibit 1. Whenever in any Financing Document, or in any
certificate or opinion to be delivered in connection therewith, reference is
made to a "Note" or "Revolving Note", from and after the date hereof same will
be deemed to refer to the 1993 Revolving Note.
6. In order to induce the Bank to enter into this Agreement, the
Borrower further represents and warrants as follows:
a. The execution, delivery and performance of this Agreement and
the 1993 Revolving Note have been duly authorized by the
Borrower by all necessary corporate and other action, will not
require the consent of any third party and will not conflict
with, violate the provisions of, or cause a default or
constitute an event which, with the passage of time or giving
of notice or both, could cause a default on the part of the
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Borrower under its charter documents or by-laws or under any
contract, agreement, law, rule, order, ordinance, franchise,
instrument or other document, or result in the imposition of
any lien or encumbrance on any property or assets of the
Borrower (except lines in favor of the Bank).
b. The Borrower has duly executed and delivered each of this
Agreement and the 1993 Revolving Note.
c. Each of this Agreement and the 19993 Revolving Note is the
legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its
respective terms.
d. The statements, representations and warranties made in the
Letter Agreement continue to be correct as of the date hereof;
except as amended, updated and/or supplemented by the attached
Supplemental Schedule.
e. The covenants and agreements of the Borrower contained in the
Letter Agreement have ben complied with on and as of the date
hereof.
f. No event which constitutes or which, with notice or lapse of
time, or both, could constitute, an Event of Default (as
defined in the Letter Agreement) has occurred and is
continuing.
g. Except as heretofore disclosed to the Bank in writing, no
material adverse change has occurred in the financial
condition of the Borrower from that disclosed in the quarterly
financial statements of the Borrower for the fiscal year ended
March 31, 1993.
7. Except as expressly affected hereby, the Letter Agreement and
each of the other Financing Documents remains in full force and effect as
heretofore.
8. Except expressly set forth above, nothing contained herein
will be deemed to constitute a waiver or a release of any provision of any of
the Financing Documents. Nothing contained herein will in any event be deemed to
constitute an agreement to give a waiver or release or to agree to any amendment
or modification of any provision of any of the Financing Documents on any other
or future occasion.
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Executed, as an instrument under seal, as of the day and year first
above written.
SUMMA FOUR, INC.
By: /s/Thomas A. St. Germain
------------------------------------------
Its
FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/Thomas W. Davies
------------------------------------------
Its Vice President
By: [Illegible]
------------------------------------------
Its Senior Vice President
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EXHIBIT 10.33
PROMISSORY NOTE
---------------
$6,000,000.00 Boston, Massachusetts
July 28, 1993
FOR VALUE RECEIVED, the undersigned Summa Four, Inc., a Delaware
corporation (the "Borrower") hereby promises to pay to the order of FLEET BANK
OF MASSACHUSETTS, N.A. (the "Bank") the principal amount of Six Million and
00/100 ($6,000,000.00) Dollars or such portion thereof as may have been or may
hereafter be advanced by the Bank pursuant to ss.1.2 of that certain letter
agreement dated October 15, 1992 between the Bank and the Borrower, as amended
(as so amended, the "Letter Agreement") and remains outstanding from time to
time thereunder ("Principal"), with interest, at the rate hereinafter set forth,
on the daily balance of all unpaid Principal, from the date hereof until payment
in full of all Principal and interest hereunder.
Interest on all unpaid Principal shall be due and payable monthly in
arrears, on the first day of each month commencing on the first such date after
the advance of any Principal and continuing on the first day of each month
thereafter and on the date of payment of this note in full, at a fluctuating
rate per annum (computed on the basis of a year of three hundred sixty [360]
days for the actual number of days elapsed) which shall at all times be equal to
the Prime Rate, as in effect from time to time (but in no event in excess of the
maximum rate permitted by then applicable law). A change in the aforesaid rate
of interest shall become effective on the same day on which any change in the
Prime Rate is effective. Overdue Principal and, to the extent permitted by law,
overdue interest shall bear interest at a fluctuating rate per annum which at
all times shall be equal to the sum of (i) two (2%) percent plus (ii) the per
annum rate otherwise payable under this note (but in no event in excess of the
maximum rate permitted by then applicable law), compounded monthly and payable
on demand. As used herein, "Prime Rate" means that rate of interest per annum
announced by the Bank from time to time as its prime rate, it being understood
that such rate is merely a reference rate, not necessarily the lowest, which
serves as the basis upon which effective rates of interest are calculated for
obligations making reference thereto.
All outstanding Principal and all interest accrued thereon shall be due
and payable in full on the first to occur of: (i) an acceleration under ss.5.2
of the Letter Agreement or (ii) September 1, 1994. The Borrower may at any time
and from time to time, without premium or penalty, prepay all or any portion of
said Principal. Under certain circumstances set forth in the Letter Agreement,
prepayments of Principal may be required.
<PAGE> 2
Payments of both Principal and interest shall be made, in immediately
available funds, at the principal office of the Bank (now located at 75 State
Street, Boston, Massachusetts 02109), or at such other address as the Bank may
from time to time designate.
The undersigned Borrower irrevocably authorizes the Bank to make or
cause to be made, on a schedule attached to this note or on the books of the
Bank, at or following the time of making any Revolving Loan (as defined in the
Letter Agreement) and of receiving any payment of Principal, an appropriate
notation reflecting such transaction and the then aggregate unpaid balance of
Principal. Failure of the Bank to make any such notation shall not, however,
affect any obligation of the Borrower hereunder or under the Letter Agreement.
The aggregate unpaid principal amount of the Revolving Loans, as recorded by the
Bank from time to time on such schedule or on such books, shall constitute
presumptive evidence of such amount.
The Borrower hereby (a) waives notice of and consents to any and all
advances, settlements, compromises, favors and indulgences (including, without
limitation, any extension or postponement of the time for payment), any and all
receipts, substitutions, additions, exchanges and releases of collateral, and
any and all additions, substitutions and releases of any person primarily or
secondarily liable, (b) waives presentment, demand, notice, protest and all
other demands and notices generally in connection with the delivery, acceptance,
performance, default or enforcement of or under this note, and (c) agrees to
pay, to the extent permitted by law, all costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred or paid by the Bank in
enforcing this note and any collateral or security therefor, all whether or not
litigation is commenced.
This note is the Revolving Note referred to in the Letter Agreement.
This note is subject to prepayment as set forth in the Letter Agreement. The
maturity of this note may be accelerated upon the occurrence of an Event of
Default, as provided in the Letter Agreement.
Executed, as an instrument under seal, as of the day and year first
above written.
CORPORATE
SEAL
ATTEST: SUMMA FOUR, INC.
By: /s/Thomas A. St. Germain
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Secretary Its
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SUPPLEMENTAL SCHEDULE
---------------------
Section 2.1(g) of the Letter Agreement makes warranties with respect to
taxes which remain correct with the exception that the Borrower has realized
that sales taxes in various states were only partially accrued and not paid.
This has resulted in restated financials for the year ending March 31, 1993
reducing net income from $471,000.00 to $351,000.00. The Borrower is working
with its accountants, Coopers & Lybrand, to resolve these tax liabilities.
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