<PAGE> 1
As filed with the U.S. Securities and Exchange Commission on May 13, 1999.
Registration Statement No. 333-_____
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
MURDOCK COMMUNICATIONS CORPORATION
(Name of Small Business Issuer in Its Charter)
--------------------
<TABLE>
IOWA 4813 42-1339746
<S> <C> <C>
(State or Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
1112 29TH AVENUE S.W.
CEDAR RAPIDS, IOWA 52404
(319) 362-6900
(Address and Telephone Number of Principal Executive Office, Principal
Place of Business)
THOMAS E. CHAPLIN
CHIEF EXECUTIVE OFFICER
MURDOCK COMMUNICATIONS CORPORATION
1112 29TH AVENUE S.W.
CEDAR RAPIDS, IOWA 52404
(319) 362-6900
(Name, Address and Telephone Number of Agent for Service)
Copies of communications to:
ALBERT S. ORR, ESQ.
REINHART, BOERNER, VAN DEUREN,
NORRIS & RIESELBACH, S.C.
1000 NORTH WATER STREET, SUITE 2100
MILWAUKEE, WI 53202
(414) 298-1000
FACSIMILE (414) 298-8097
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. |X|
<PAGE> 2
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. | |
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. | |
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. | |
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. | |
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================== ================== ================== ================== ================
TITLE OF EACH PROPOSED PROPOSED
CLASS OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
- ----------------------------------------------- ------------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
COMMON STOCK, NO PAR VALUE 1,324,374 $3.54 (1) $4,688,284 (3) $1,304
- ----------------------------------------------- ------------------ ------------------ ------------------ ----------------
COMMON STOCK, NO PAR VALUE 1,819,918 (2) $3.143 (3) $5,720,003 (3) $1,591
- -------------------------------------------------------------------------------------------------------------------------
TOTAL $2,895
=============================================== ================== ================== ================== ================
</TABLE>
(1) ESTIMATED SOLELY FOR PURPOSES OF COMPUTING THE REGISTRATION FEE
PURSUANT TO RULE 457(C) UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), BASED ON THE AVERAGE OF THE REPORTED BID AND ASKED PRICES
OF THE COMMON STOCK ON THE NASDAQ BULLETIN BOARD ON MAY 7, 1999.
(2) SHARES OF COMMON STOCK ISSUABLE ON EXERCISE OF THE COMMON STOCK
PURCHASE WARRANTS ORIGINALLY ISSUED BY THE REGISTRANT ON OCTOBER 24,
1996 AND REGISTERED ON A FORM SB-2 (REGISTRATION NO. 333-05422C) WHICH
WAS DECLARED EFFECTIVE BY THE SECURITIES AND EXCHANGE COMMISSION ON
OCTOBER 21, 1996. PURSUANT TO RULE 416 PROMULGATED UNDER THE ACT, THIS
REGISTRATION STATEMENT COVERS SUCH SHARES AS MAY BE ISSUABLE PURSUANT
TO THE ANTIDILUTION PROVISIONS OF THE WARRANTS.
(3) THE PROPOSED MAXIMUM AGGREGATE OFFERING PRICE FOR THE SHARES ISSUABLE
PURSUANT TO THE COMMON STOCK PURCHASE WARRANTS IS, PURSUANT TO RULE
457(G), EQUAL TO THE PRODUCT OF (I) THE EXERCISE PRICE PER SHARE OF
COMMON STOCK ISSUABLE PURSUANT THERETO AND (II) THE AGGREGATE NUMBER
OF SHARES OF COMMON STOCK ISSUABLE PURSUANT THERETO.
-----------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
2
<PAGE> 3
PROSPECTUS
[LOGO]
3,144,292 SHARES OF COMMON STOCK
We are offering shares of our common stock to the holders of 880,000 Common
Stock Purchase Warrants which we issued on October 24, 1996. The Warrants may be
exercised to purchase a total of 1,819,918 shares of common stock at $3.143 per
share.
Per Share Total
--------- -----
Exercise Price. . . . . . . . . $3.143 $5,720,003
Also, certain of our shareholders are offering up to 1,324,374 shares of our
common stock. Because these shares will be sold by the selling shareholders, we
will not receive any proceeds from the sale of these shares.
The selling shareholders have not advised us of their specific plans for the
distribution of their shares covered by this prospectus. We anticipate that the
selling shareholders will sell the shares from time to time primarily in
transactions (which may include block transactions) on the Nasdaq Bulletin Board
at the market price then prevailing. However, the selling shareholders may also
make sales in negotiated transactions or otherwise.
Our common stock is traded on the Nasdaq Bulletin Board.
Trading Symbol on Nasdaq Bulletin Board: MURC
Closing Bid Price on May 7, 1999: $3.38 per share
CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS
PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
___________, 1999.
<PAGE> 4
SUMMARY
This summary highlights selected information from this document. For a
more complete description of the offering and Murdock Communications
Corporation, you should carefully read this entire document and the documents to
which we have referred you. See "Where You Can Find More Information" on page
33.
THE OFFERING
The Warrants. We are offering up to 1,819,918 shares of our common
stock to the holders of the Warrants. We originally issued the Warrants in
October 1996 in connection with our initial public offering. Each Warrant may be
exercised to purchase approximately 2.068 shares of our common stock at an
exercise price of $3.143 per share. The Warrants expire on October 21, 1999. We
may elect to redeem the Warrants if the average closing bid price of our common
stock exceeds $7.15 over a 20 trading day period preceding the notice of
redemption. The redemption price is $0.01 per Warrant. See "Plan of
Distribution" on page 31 for a more complete description of the Warrants.
The Selling Shareholders. The selling shareholders are offering for
sale up to 1,324,374 shares of our common stock. Because these shares will be
sold by the selling shareholders, we will not receive any proceeds from the sale
of these shares. For more information on the selling shareholders, please refer
to "Selling Shareholders" on page 29 and "Plan of Distribution" on page 30.
MURDOCK COMMUNICATIONS CORPORATION
1112 29th Avenue S.W.
Cedar Rapids, Iowa 52404
319-362-6900
We provide operator services and call processing to North American pay
phones, hotels and institutions, database profit management services and
telecommunications billing and collection services for the hospitality industry,
outsourced operator services for the telecommunications industry and
telecommunications systems and services to the lodging industry. Through a
series of acquisitions and new product developments, we transformed ourselves
during 1998 from primarily a reseller of AT&T network services to U.S. hotels to
a provider of a wide range of complementary telecommunications services in North
America. We operate through three principal business units:
- Murdock Technology Services ("MTS"), our division which
provides database profit management services and other
telecommunications management and consulting services;
- Priority International Communications, Inc. and ATN
Communications, Inc. (collectively, "PIC/ATN"), our wholly
owned subsidiaries which provide operator services, call
processing and related valued added services; and
- Incomex, Inc. ("Incomex"), our wholly owned subsidiary which
provides billing and collection services for calls to the
United States from resort hotels in Mexico.
We have also made investments in:
- ACTEL Integrated Communications, a provider of local exchange
communications services as a facility-based carrier based in
Mobile, Alabama; and
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<PAGE> 5
- AcNet S.A. de C.V., a provider of internet services and
network services to businesses, governments and consumers in
Mexico.
FORWARD-LOOKING STATEMENTS MAY PROVE TO BE INACCURATE
We have made forward-looking statements in this document. These
forward-looking statements include statements regarding new products we may
introduce in the future, statements about our business strategy and plans,
statements about the adequacy of our working capital and other financial
resources and other statements that are not of a historical nature. When we use
words such as "believes," "expects," "anticipates" or similar expressions, we
are making forward-looking statements. You should note that forward-looking
statements rely on a number of assumptions concerning future events and are
subject to a number of uncertainties and other factors, many of which are
outside of our control, that could cause actual results to differ materially
from the statements. These factors include those discussed under the caption
"Risk Factors" in this prospectus. We disclaim any intention or obligation to
update or revise any forward-looking statements whether as a result of new
information, future events or otherwise.
RISK FACTORS
Before purchasing our stock, you should carefully consider the
following risk factors and the other information contained in this prospectus.
WE HAVE A HISTORY OF NET LOSSES AND MAY NOT BECOME PROFITABLE.
We incurred net losses of $174,338 and $7,900,008 for the years ended
December 31, 1998 and 1997, respectively, and had a working capital deficit of
$8,806,379 at December 31, 1998. We can not assure you that we will achieve or
sustain profitability. If we cannot achieve operating profitability or positive
cash flows, we may not be able to meet our debt service or working capital
requirements, which could have a material adverse effect on our business.
WE MAY BE UNABLE TO MEET OUR FUTURE CAPITAL REQUIREMENTS.
Our business is capital intensive and requires substantial capital
investment to achieve growth. We will require additional capital in the future
for working capital as well as to finance our continuing expansion, acquisition
opportunities and development of new products and services and to fund our debt
service requirements. We do not believe that our existing capital and funds from
operations will be sufficient to meet our anticipated cash needs in 1999. To
address these needs, we have entered into a commitment letter with a major
lending institution for a senior secured credit facility of up to $25 million.
If this facility is completed, we believe that the proceeds will be sufficient
to meet our anticipated cash needs for 1999, although future investments,
acquisitions or other transactions may require additional debt or equity
financing. Because there are significant conditions remaining to be satisfied
with respect to the proposed credit facility, including the negotiation of
definitive loan documents, we can not assure you that we will complete this
credit facility or, if completed, that the terms of the credit facility will be
as presently contemplated. If we are unable to complete the proposed credit
facility, we would expect to seek necessary financing through other debt or
equity sources. However, adequate funds may not be available when needed, or in
an amount or on terms acceptable to us. Insufficient funds may require us to
delay, scale back or eliminate some or all of our product or market development
plans and could have an adverse effect on our future performance. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations - Liquidity and Capital Resources" on pages 18-19.
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<PAGE> 6
WE ARE IN AN INTENSELY COMPETITIVE MARKET.
Competition in the telecommunications industry is intense and we expect
to face competition in each of our business units.
- PIC/ATN competes with numerous other providers of alternative
operator services and call processing services.
- Incomex competes with several competitors which also focus on the
hotel and pay phone markets in Mexico.
- MTS competes with up to nine telecommunications consulting
companies which target the lodging industry.
- Our operator and call processing services also compete with a
variety of long distance interexchange carriers, including Sprint,
MCI and AT&T.
Each of our business units may face competition from companies with
greater financial, technical, marketing and other resources than we have. We can
not assure you that we will be able to compete successfully in our markets.
OUR ACQUISITION STRATEGY MAY PLACE SIGNIFICANT DEMANDS ON OUR RESOURCES AND MAY
ADVERSELY AFFECT OUR BUSINESS.
An important component of our strategy is to grow and expand through
acquisitions. In October 1997, we completed the acquisition of PIC/ATN and in
February 1998 we completed the acquisition of Incomex. We also have made
investments in, and have entered into agreements to make additional investments
in, ACTEL Integrated Communications, Inc., a competitive local exchange carrier
which commenced operations in Alabama in April 1999, and AcNet S.A. de C.V., an
internet service provider in Mexico. Our growth strategy will depend on the
continued availability of suitable acquisition candidates and available capital
and will subject us to a number of risks, including the following:
- Our acquisitions have placed and are expected to continue to place
significant demands on our financial and management resources, as
the process of integrating acquired operations presents a
significant challenge to our management and may lead to
unanticipated costs or a diversion of management's attention from
day-to-day operations;
- We may face difficulties in integrating our past acquisitions or
other acquisitions in the future. Integrating acquisitions may
require integration of financial and information systems, network
and other physical facilities and personnel. Difficulties in
integrating these and other acquisitions can cause added costs and
loss of personnel or customers;
- We may incur unknown liabilities despite management's efforts to
investigate the operations of the acquired business; and
- The consideration we pay in an acquisition may exceed the value of
the acquired business or its contribution to our business and our
results of operations.
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<PAGE> 7
The impact of these risks, and other risks arising as a result of our
acquisition strategy, could adversely affect our business.
WE DEPEND ON TWO CUSTOMERS FOR A SIGNIFICANT PERCENTAGE OF OUR SALES.
We have two significant customers from which we received approximately
12% and 24% of our revenues in 1998. We do not have long-term contracts with
these customers. An adverse change in our relationship with or the financial
viability of either of these customers could have a material adverse effect on
our business.
WE NEED TO MANAGE OUR GROWTH.
We have experienced growth in the number of our employees and the scope
of our operations. To manage potential future growth effectively, we must
improve our operational, financial and management information systems and must
hire, train, motivate and manage our employees. Our future success also will
depend on our ability to increase our customer support capability and to attract
and retain qualified technical, sales, network operations, marketing and
management personnel, for whom competition is intense. We can not assure you
that we will be able to effectively achieve or manage such growth, and failure
to do so could have a material adverse effect on our business, financial
condition and results of operations.
OUR COMMON STOCK IS TRADED ON AN ILLIQUID MARKET.
Our common stock trades on the Nasdaq Bulletin Board under the trading
symbol "MURC." Investors may find it difficult to obtain accurate quotations of
the price of our common stock and to sell our common stock on the Nasdaq
Bulletin Board. In addition, companies whose stock is listed on stock exchanges
or the Nasdaq Stock Market must adhere to the rules of such markets. These rules
include various corporate governance procedures which, among other items,
require the company to obtain shareholder approval prior to completing certain
transactions such as, among others, issuances of common stock equal to 20% or
more of the company's then outstanding common stock for less than the greater of
book or market value or the issuance of certain stock options. Companies such as
ours, whose stock is quoted on the Nasdaq Bulletin Board, are not subject to
these or any comparable rules.
WE MAY NOT BE ABLE TO KEEP UP WITH RAPID TECHNOLOGICAL CHANGES IN THE
TELECOMMUNICATIONS INDUSTRY.
The telecommunications industry is characterized by:
- rapid technological change;
- changes in user and customer requirements and preferences;
- frequent new product and service introductions embodying new
technologies; and
- the emergence of new industry standards and practices.
These developments could quickly render our existing technology and
systems obsolete. Our inability to modify or adapt our infrastructure in a
timely manner or the expenses incurred in making such adaptations could hurt our
business.
As a result, we will be required to continually improve the
performance, features and reliability of our services, particularly in response
to competitive offerings. Our success will depend, in part, on our ability to
enhance our existing services and develop new services in a cost-effective and
timely
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<PAGE> 8
manner. The development of proprietary technology entails significant
technical and business risks and requires substantial expenditures and lead
time. We may not be able to adapt successfully to customer requirements or
emerging industry standards.
WE RELY ON KEY PERSONNEL.
We depend upon the efforts of our officers and other key personnel. The
loss of certain of our key employees, including our Chairman, Guy O. Murdock,
and our Chief Executive Officer, Thomas E. Chaplin, could have a material
adverse effect on us. Although we have entered into employment agreements with
each of our executive officers, we can not assure you that we will be able to
retain them or our other key employees in the future. Furthermore, we expect
that we will need to employ additional executives and key employees in order to
successfully implement our business plan. Our success will depend on our ability
to retain key employees, employ additional capable executives and implement an
effective management structure. We plan to take out a $7 million key-man life
insurance policy for Mr. Chaplin.
OUR MANAGEMENT OWNS A LARGE PERCENTAGE OF OUR VOTING STOCK.
Our current executive officers and directors and their affiliates
beneficially own or have voting control over approximately 51% of the
outstanding shares of common stock. Accordingly, these individuals will have the
ability to influence the election of our directors. This concentration of
ownership may also have the effect of delaying, deterring or preventing a change
in control. See "Principal Shareholders" on page 26.
FUTURE SALES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE.
Sales of substantial amounts of our common stock in the public market
could adversely affect the market price of our common stock. As of April 9,
1999, 10,329,867 shares of our common stock were outstanding.
- 590,022 shares, which are being offered by the selling
shareholders pursuant to this prospectus, are freely tradeable in
the public market;
- 4,839,845 shares are freely tradable in the public market, except
for shares held by our affiliates which are subject to the resale
limitations (excluding the holding period requirement) of Rule 144
under the Securities Act; and
- 4,900,000 shares are currently subject to a holding period under
Rule 144, but in less than one-year will become tradeable in the
public market subject to the resale limitations of Rule 144.
We have commitments to issue up to 9,228,533 shares of our common stock
upon the exercise of outstanding employee stock options, the exercise of
outstanding warrants and the conversion of shares of our preferred stock.
- 734,352 shares, which are being offered by the selling
stockholders pursuant to this prospectus and are issuable upon
exercise of warrants or conversion of shares of preferred stock,
are freely tradeable in the public market;
- 1,617,558 shares issuable upon exercise of employee stock options
will be freely tradeable in the public market, except for shares
held by our affiliates which are subject to the resale limitations
(excluding the holding period requirement) of Rule 144 under the
Securities Act;
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<PAGE> 9
- 1,819,918 shares issuable upon exercise of the Warrants offered
under this prospectus will be freely tradeable in the public
market upon exercise;
- 1,488,889 shares issuable upon conversion of the preferred stock
will be freely tradable in the public market, except for shares
held by our affiliates which are subject to the resale limitations
(excluding the holding period requirement) of Rule 144 under the
Securities Act; and
- 3,567,816 shares issuable upon exercise of warrants may be resold
subject to the resale limitations of Rule 144 under the Securities
Act.
We can not predict the effect, if any, that sales of shares of our
common stock or the availability of such shares for sale will have on the market
price prevailing at that time. Nevertheless, the possibility that a substantial
number of shares of our common stock may be offered or sold in the public market
may adversely affect prevailing market prices for our common stock and could
impair the shareholders' ability to sell shares of their common stock, or our
ability to raise capital through the subsequent sale of our equity securities.
WE FACE YEAR 2000 RISKS.
Like many companies, we may be adversely affected by the Year 2000
computer problem. The Year 2000 issue relates to computer hardware and software
and other systems designed to use two digits rather than four digits to define
the applicable year. As a result, the Year 2000 would be translated as two
zeroes. Because the Year 1900 could also be translated as two zeroes, systems
which use two digits could read the date incorrectly for a number of
date-sensitive applications resulting in potential calculation errors or the
shutdown of major systems. We are in the process of updating our internal
computer software, other internal information technology and other internal
operating systems for purposes of Year 2000 compliance. We are also addressing
the Year 2000 compliance of our new and existing products. We currently expect
to complete our Year 2000 compliance plan during fiscal 1999 and do not expect
our costs to become Year 2000 compliant will be material to our financial
condition or results of operations. However, we can not assure you that we will
not experience any unanticipated problems in our internal systems with respect
to the Year 2000 which may have a material adverse effect on us.
Our operations may also be adversely affected to the extent that our
suppliers and other third parties are not Year 2000 compliant. We anticipate
completing surveys to our key customers and vendors during the second quarter of
1999 to assess the Year 2000 compliance status of the operating systems of such
third parties and the potential impact on us of non-compliance. However, a
number of risks relating to the Year 2000 issue may be out of our control,
including our reliance on outside links for essential services such as
communications and power. We can not assure you that a third party's failure of
systems on which our systems and operations rely to be Year 2000 compliant will
not have a material adverse effect on us.
CERTAIN MARKET INFORMATION AND DIVIDEND POLICY
During all of 1997, our common stock was traded on the Nasdaq SmallCap
Market under the symbol "MURC" and our Redeemable Common Stock Purchase Warrants
were traded on the Nasdaq SmallCap Market under the symbol "MURCW." Effective
January 2, 1998, our common stock and the Warrants were delisted from the Nasdaq
SmallCap Market and commenced trading on the Nasdaq Bulletin Board under the
same trading symbols. The following table sets forth the high and low bid
quotations for our common stock and Warrants as reported by Nasdaq. Such
transactions reflect
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<PAGE> 10
interdealer prices, without retail mark-up, mark-down or commission and may not
necessarily represent actual transactions.
<TABLE>
<CAPTION>
Common Stock Warrants
------------ --------
Quarter High Low High Low
------- ---- --- ---- ---
<S> <C> <C> <C> <C>
FISCAL 1997
First $ 4.75 $ 3.13 $ 1.50 $ 0.75
Second 4.69 2.88 1.13 0.56
Third 3.50 2.44 0.94 0.31
Fourth 3.81 0.69 0.88 0.25
FISCAL 1998
First $2.63 $0.69 $0.31 $0.06
Second 3.31 2.25 0.25 0.13
Third 4.50 2.75 0.44 0.19
Fourth 4.25 2.13 0.25 0.13
FISCAL 1999
First 4.75 2.75 0.38 0.06
</TABLE>
At December 31, 1998, there were approximately 155 holders of record of
our common stock and approximately 1,600 beneficial holders.
We have not paid any cash dividends on our common stock in the last
three years. We intend to retain any earnings for use in the operation and
expansion of our business and, therefore, do not anticipate paying any cash
dividends in the foreseeable future. Also, our proposed credit facility will
restrict our ability to pay dividends.
USE OF PROCEEDS
If the Warrants are exercised in full, we will receive total proceeds
of $5,720,003, before deducting estimated expenses of $35,905. We anticipate
that we will use any proceeds from the exercise of the Warrants for general
corporate purposes. We will not receive any proceeds from the sale of the shares
of our common stock offered hereby by the selling shareholders.
BUSINESS
Murdock Communications Corporation ("MCC") provides operator services
and call processing to North American pay phones, hotels and institutions,
database profit management services and telecommunications billing and
collection services for the hospitality industry, outsourced operator services
for the telecommunications industry and telecommunications systems and services
to the lodging industry. Through a series of acquisitions and new product
developments, we transformed ourselves during 1998 from primarily a reseller of
AT&T network services to U.S. hotels to a provider of a wide range of
complementary telecommunications services in North America. We operate through
three principal business units:
- MTS, our division which provides database profit management
services and other telecommunications management and
consulting services;
- PIC/ATN, our wholly owned subsidiaries which provide operator
services, call processing and related valued added services;
and
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<PAGE> 11
- Incomex, our wholly owned subsidiary which provides billing
and collection services for calls to the United States from
resort hotels in Mexico.
We were incorporated as an Iowa corporation in 1989.
PRINCIPAL BUSINESS UNITS
Murdock Technology Services. We formed MTS as a division in 1998 to
provide database profit management services and other value-added services to
the hospitality telecommunications management market.
MTS's principal service, the MCC Telemanager(TM), is a proprietary
software and hardware system created to help manage telecommunication
installations and services in the hospitality market. The Telemanager was
introduced to the market in September 1997 and there were 174 units installed as
of December 31, 1998 as compared to 80 units as of December 31, 1997. The
Telemanager uses proprietary computer software to monitor telephone activity at
a hotel and enables the hotel to identify problems and opportunities for revenue
growth by producing reports analyzing the costs and revenues derived from the
hotel's telecommunications system. The Telemanager provides each customer with
information regarding the customer's telecommunications system in management
reports which are easy to read and understand by persons lacking specialized
expertise in telecommunications. MTS generates this information by remotely
accessing information from the customer's premise-based call processing
equipment. The information is then analyzed based on proprietary computer
software programs developed by MCC. The results of this analysis are summarized
in reports and graphs that are remotely transmitted to the customer. The
Telemanager generates revenues through a one-time fee for the initial
installation and audit, and a monthly service fee.
We have initially focused our marketing of the Telemanager to the North
American hospitality industry with special emphasis toward hotels which
participated in the AT&T Lodging Partnership program, hotels and resorts in
Mexico under contract with Incomex and hotels using our operator services. In
future periods, we anticipate expanding the market for the Telemanager and our
other telecommunications consulting services outside of the hospitality industry
to include other businesses.
MTS is the successor to our historical operating unit which marketed
AT&T operator services to the hospitality market through the AT&T Lodging
Partnership. We agreed with AT&T to terminate the Lodging Partnership
arrangement in the fourth quarter of 1998. See "Recent Developments -
Termination of AT&T Lodging Partnership" below. MTS also continues to offer
one-plus long distance services and automated call processing services ("OSP
Services") on a limited basis and telecommunications equipment to its customers
in the hospitality industry.
PIC/ATN Operator Services. PIC/ATN offers telecommunications services
to pay phone operators, consumer service providers, hotels and other
institutions in the United States and Mexico. Priority International
Communications, Inc. and ATN Communications, Inc. (collectively, "PIC/ATN"),
operate in concert to provide marketing, service delivery and customer support
for owners and aggregators of telecommunications services. PIC/ATN provides both
live operator services and automated call processing services. The operator
center, located in Mobile, Alabama, features 50 live operator stations and
automated call platforms currently generating approximately 220,000 completed
calls and 2 million minutes monthly. PIC/ATN also offers credit card billing
services, automated collection and messaging delivery services, voice mail
services and telecommunications consulting. At December 31, 1998, PIC/ATN
provided telecommunications services to and maintained site contracts with
approximately 207 customers throughout the United States, compared to 257
customers at December 31, 1997. Each customer may represent from one to 2,000
telephone numbers that are in
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<PAGE> 12
PIC/ATN's database and are processed by PIC/ATN. The total size of PIC/ATN's
database increased substantially in 1998 to approximately 17,000 telephone
numbers at December 31, 1998.
Incomex Telecommunications Services. Incomex contracts with Mexican
resort hotels to provide billing and collection services for calls to the United
States. As of December 31, 1998, Incomex provided telecommunications services to
more than 95 hotel and motel resort properties representing approximately 15,000
rooms, compared to approximately 80 hotel and motel resort properties
representing approximately 10,600 rooms at February 13, 1998. Incomex's target
market includes 1,300 Mexican resort hotels representing approximately 325,000
rooms. Incomex offers value-added customer services, training and technology to
enhance the profitability of the telephone departments of Mexican resort hotels.
RECENT DEVELOPMENTS
Investment in ACTEL. On March 10, 1999, we entered into an amended
investment agreement with ACTEL Integrated Communications, Inc., a provider of
local exchange communications services as a facility-based carrier. ACTEL has
received public service approval to become a competitive local exchange carrier
in both Louisiana and Alabama and began to offer voice and data communications
services to medium and small businesses in Alabama in April 1999. Under the
March 1999 agreement, we will receive one share of ACTEL's Series A convertible
preferred stock for every dollar invested. Each share of ACTEL's Series A
convertible preferred stock earns a 10% dividend and may be converted to 1.46
shares of ACTEL's common stock at any time on or before March 10, 2002 at our
option. As of May 10, 1999, we had invested $2.6 million in ACTEL pursuant to a
previous agreement. Under the March 1999 agreement, we may make additional
investments in ACTEL of up to $900,000. If we invest a total of $3.5 million in
ACTEL, we would own approximately 51% of the currently outstanding shares of
ACTEL's capital stock.
Investment in AcNet. In March 1999, we entered into an agreement with
AcNet S.A. de C.V., a provider of internet services and network services to
businesses, governments and consumers in Mexico. As of March 1999, AcNet
provided internet services to over 13,000 customers and network services to
several of the major corporations of Mexico generating annualized revenues of
approximately $1.5 million. The March 1999 agreement revised the terms of our
investment in AcNet as follows:
- We have an option to purchase 49% of AcNet in exchange for
450,000 shares of our common stock and our agreement to
guarantee certain debt of AcNet at AcNet's request. As of
May 10, 1999, we had not guaranteed any debt of AcNet. This
option extends through July 31, 1999.
- We may lend up to $2 million to AcNet under a note which
accrues interest at the rate of 10% per year. We have the
right to convert the note to preferred stock that earns 20% of
the earnings of AcNet. The preferred stock may be redeemed by
AcNet for 120% of its face value plus any accumulated
dividends. As of May 10, 1999, we had loaned $1.8 million to
AcNet.
Termination of AT&T Lodging Partnership. In light of the declining call
volumes and narrow profit margins we experienced under the Lodging Partnership
with AT&T, we agreed with AT&T to terminate the Lodging Partnership arrangement
effective October 15, 1998. AT&T agreed to purchase all of the customer
contracts under the Lodging Partnership and to directly manage the existing
customers under the contracts. As a result, we recorded a one-time gain in the
fourth quarter of 1998 of $453,396. Our revenues from the AT&T agreement ended
in the fourth quarter of 1998.
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<PAGE> 13
PIC Earn-Out Settlement. Our agreement for the acquisition of PIC and
PIC Resources Corp. ("PICR") contained an earn-out provision which required that
we issue additional shares of our common stock to their former shareholders to
the extent that the combined earnings before interest, taxes, depreciation and
amortization ("EBITDA") of PIC and PICR for either of the first two full
twelve-month periods after closing exceeded $1,000,000. Shares of common stock
with a market value of $1.25 per share based on average trading value would be
issued for each dollar of EBITDA over $1,000,000 during either of the
twelve-month periods. In December 1998, we agreed with the former shareholders
to settle the PIC earn-out based on historical and projected financial
information with respect to PIC. Pursuant to the settlement, we issued an
aggregate of 2,300,000 shares of our common stock to the former shareholders of
PIC in December 1998.
We also agreed with certain of the former PIC shareholders who had
received promissory notes pursuant to the agreement with PIC that these notes
would bear interest at an annual rate of 14% from the date of the settlement
agreement. At December 31, 1998, an aggregate of $338,138 was outstanding under
these notes. In January 1999, substantially all of the notes were paid in full.
We also entered into a deferred payment arrangement with Wayne Wright, one of
the former PIC shareholders who is also a member of our Board of Directors,
pursuant to which Mr. Wright would receive $300,000 payable in 24 equal monthly
installments, which commenced in January 1999.
Incomex Earn-Out Settlement. Our agreement for the Incomex acquisition
contained an earn-out provision which required that we make a cash payment to
the Incomex shareholders equal to 60% of Incomex's net income before income
taxes ("IBT") during the period from February 1, 1998 through July 31, 1998, and
issue additional shares of our common stock at the end of each of the two
periods of 12 consecutive full calendar months during the 24 month period
beginning August 1, 1998 to the extent that Incomex's IBT exceeds $400,000
during either such 12 month period. Shares of our common stock with a market
value of $1.50 per share based on average trading value would be issued for each
dollar of IBT over $400,000 during either of the twelve month periods. In
December 1998, we agreed with the former shareholders of Incomex to settle the
Incomex earn-out based on historical and projected financial information with
respect to Incomex. Pursuant to the settlement, we agreed to issue an aggregate
of 1,500,000 shares of our common stock to the shareholders of Incomex and cash
consideration in the amount of $862,314. Each Incomex shareholder could elect to
receive the cash consideration in the form of either an immediate cash payment
or the issuance of a note and warrants. The notes bear interest at an annual
rate of 14% and all interest and principal on the notes are due on November 15,
1999. Warrants to purchase 200 shares of common stock at an exercise price of
$3.25 per share were issued for each $1,000 of principal under the notes. In
December 1998, we committed to make cash payments of $85,471 (excluding a prior
advance of $32,000) and issued the notes in the aggregate principal amount of
$744,915 and the warrants to purchase an aggregate of 155,384 shares of common
stock. We also agreed with three of the former Incomex shareholders to issue
$340,000 in notes, which we expect to repay in the second quarter of 1999.
COMPETITION
Competition in the telecommunications industry is intense. PIC/ATN
competes with numerous other providers of alternative operator services and call
processing services. PIC/ATN's customers, which include telephone owners and
aggregators, are extremely attentive to the competitive environment and the
competitive efforts of alternative operator service providers to acquire new
customers. Incomex competes with several competitors who also focus on the hotel
and pay phone markets in Mexico. MTS competes with up to nine telecommunications
consulting companies which target the lodging industry. Our operator and call
processing services also compete with a variety of long distance interexchange
carriers, including Sprint, MCI and AT&T. Each of the major long distance
interexchange carriers provide callers with the ability to "dial around" pay
phones, hotel and other telephone systems by using
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<PAGE> 14
special codes such as 10-ATT, 10-10 or 1-800 phone numbers. We believe that
competition in our markets is based principally on price, quality, reliability
and customer service. Each of our business units may face competition from
companies with greater financial, technical, marketing and other resources than
us. We can not assure you that we will be able to compete successfully in our
markets.
SIGNIFICANT CUSTOMERS
Prior to 1998, we derived a substantial part of our revenues from the
AT&T Lodging Partnership. We terminated the Lodging Partnership arrangement in
the fourth quarter of 1998. See "Recent Developments-Termination of AT&T Lodging
Partnership" above. We have two significant customers from which we received
approximately 12% and 24% of our revenues in 1998 for PIC/ATN's call processing
services.
SALES AND MARKETING
We will seek to expand our business based on the development and
delivery to our customers of value-added services, proprietary software
technology and value-added equipment and management offerings.
Value-Added Equipment and Management Offerings. By including
value-added equipment offerings as a part of our long distance offerings, we
believe that we are able to meet the total telecommunications needs of pay phone
operators, hotel properties and other institutions and businesses more fully
than either the interexchange carriers or the OSP Service companies. We offer
our customers a single point of contact telecommunications management program.
MTS's Sales Force. MTS has an internal sales staff which consisted of
two full-time sales managers and one full-time sales agent as of December 31,
1998. This sales force generally concentrates on the largest management and
franchise companies in the lodging industry. MTS also uses strategic
relationships with other lodging technology suppliers to market its management
and consulting services.
PIC/ATN. PIC/ATN has an internal sales staff which consisted of three
persons as of December 31, 1998. PIC/ATN's sales force concentrates its sales
efforts on direct marketing and referral based marketing. PIC/ATN also
participates in trade organizations to maintain its presence in the industry.
Incomex. Incomex has an internal sales staff which consisted of three
persons as of December 31, 1998. Incomex's internal sales force is supplemented
by six external sales agents.
INTELLECTUAL PROPERTY
We do not currently have any material patent or trademark
registrations. We principally rely on trade secrets and proprietary know-how in
the operation of our business.
REGULATION
Overview. Our services are subject to federal and state regulation. The
Federal Communications Commission (the "FCC") exercises jurisdiction over all
facilities of, and services offered by, telecommunications common carriers to
the extent those facilities are used to provide, originate or terminate
interstate or international communications. State regulatory commissions retain
some jurisdiction over the same facilities and services to the extent they are
used to originate or terminate intrastate common carrier communications. We hold
various federal and state regulatory authorizations.
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<PAGE> 15
Federal Regulation. The Telecommunications Act of 1996 (the
"Telecommunications Act") became effective February 8, 1996. The
Telecommunications Act preempts state and local laws to the extent that they
prevent competitive entry into the provision of any telecommunications service.
Subject to this limitation, however, state and local governments retain most of
their existing regulatory authority. The Telecommunications Act imposes a
variety of new duties on incumbent local exchange carriers in order to promote
competition in local exchange and access services. We do not believe that the
Telecommunications Act has had a significant effect on our operations.
We also make informational filings with the FCC with respect to all
tariffs charged for OSP services. The FCC may request further information with
respect to, or otherwise challenge, any tariffs that the FCC considers to be
unreasonably high. As of December 31, 1998, the FCC had not commented on or
challenged our tariffs.
State Regulation. We are also subject to various state laws and
regulations. Most public utilities commissions subject alternative operator and
call processing service providers such as MCC to some form of certification
requirement, which requires providers to obtain authority from the state public
utilities commission prior to the initiation of service. In most states, we are
also required to file tariffs setting forth the terms, conditions and prices for
services that are classified as intrastate (for example, inter-LATA calls that
are within a single state). We also are required to update or amend our tariffs
when we adjust our rates or add new products, and are subject to various
reporting and record-keeping requirements. Accordingly, each time we change our
tariffs with respect to intrastate services, we must obtain the necessary
regulatory approvals from the state. The length of time required to obtain
certification or approval for a tariff varies from state to state, but generally
does not exceed a period of between 90 days and 6 months.
Many states also require prior approval for transfers of control of
certified carriers, corporate reorganizations, acquisitions of
telecommunications operations, assignment of carrier assets, carrier stock
offerings and incurrence by carriers of significant debt obligations.
Certificates of authority can generally be conditioned, modified, canceled,
terminated or revoked by state regulatory authorities for failure to comply with
state laws and/or the rules, regulations and policies of state regulatory
authorities. Fines or other penalties also may be imposed for such violations.
There can be no assurance that state utilities commissions or third parties will
not raise issues with regard to our compliance with applicable laws or
regulations.
EMPLOYEES
As of December 31, 1998, we had 124 full-time employees and 39
part-time employees, including 90 full-time employees and 39 part-time employees
at PIC/ATN, five full-time and no part-time employees at Incomex and 26
full-time and no part-time employees at MTS. We believe our relationship with
our employees is good. None of our employees are subject to a collective
bargaining agreement.
DESCRIPTION OF PROPERTY
We maintain our principal business offices in Cedar Rapids, Iowa, where
we own and occupy approximately 8,000 square feet of combined office and
warehouse space, subject to a first mortgage held by Venture Investments, an
unrelated third party. We believe that this space is adequate for our present
needs.
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We also have a Harris Model 2020 switching center in Mobile, Alabama,
where we have purchased an office building with 33,000 square feet, subject to a
first mortgage held by Sunmed Management, Inc. We currently occupy 12,500 square
feet of this space.
The following sets forth certain information with respect to the
significant facilities leased by MCC through PIC/ATN and Incomex.
<TABLE>
<CAPTION>
APPROX. CURRENT
SQUARE MONTHLY
LOCATION FOOTAGE RENT LESSOR LEASE TERMINATION
- -------------------------- --------- ------------ ----------- -----------------
<S> <C> <C> <C> <C>
Austin, Texas 2,100 $3,240 Kucera June 1, 2001
Huntington Beach, 850 $1,223 MUAA, Inc. August 1, 2000
California
</TABLE>
LEGAL PROCEEDINGS
Incomex has commenced an arbitration proceeding against EILCO Leasing
Services, Inc., a creditor of Incomex, to resolve a dispute regarding a loan
agreement between Incomex and Eilco. Eilco claims that Incomex is in violation
of certain covenants of the loan agreement, including provisions relating to
certain obligations of Incomex to make payments to Eilco based on Incomex's
income from telecommunications services provided to a group of hotels in Mexico.
Incomex disputes these claims and initiated the arbitration to resolve the
dispute. An arbitration hearing with respect to this matter commenced on April
21, 1999. Eilco is seeking the amount due on the loan and additional damages
which may be in excess of $1,000,000 plus legal fees. Our position is that we
owe, at the most, the principal balance due on the loan and that we are not in
violation of any of the covenants. We intend to defend the claims against
Incomex vigorously, but we can not assure you as to the outcome of this matter.
On July 20, 1998, Oncor Communications, Inc. filed a lawsuit in the
District Court of Dallas County, Texas against MCC, Incomex and an unrelated
third party. Oncor alleged that the defendants improperly terminated a long
distance service agreement with Oncor and claimed damages based on amounts which
Oncor alleged to have advanced to us, lost profits for the period in which we
are alleged to have breached the contract, attorneys' fees and for interference
with contractual relations in an unspecified amount. We asserted a counterclaim
for accounting, breach of contract, misrepresentation and payment of attorneys'
fees. We agreed with Oncor to settle this claim on April 21, 1999. Under the
settlement, we must pay $150,000 to Oncor in return for a release by Oncor of
its claims against us.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion is intended to provide an analysis of our
financial condition and results of operations and should be read in conjunction
with our financial statements and the notes to the financial statements
contained elsewhere in this prospectus. The matters discussed in this section
that are not historical or current facts deal with potential future
circumstances and developments. Such forward-looking statements include, but are
not limited to, the development and market acceptance for new services, trends
in the results of our operations and our anticipated capital requirements and
capital resources. MCC's actual results could differ materially from the results
discussed in the forward-looking statements. Factors that could cause or
contribute to such differences include those
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<PAGE> 17
discussed below as well as those discussed under the caption "Risk Factors" and
elsewhere in this prospectus. See "Forward Looking Statements" below.
OVERVIEW
The Company is a provider of operator services and call processing to
North American pay phones, hotels and institutions, database profit management
services and telecommunications billing and collection services for the
hospitality industry, outsourced operator services for the telecommunications
industry and telecommunications systems and services to the lodging industry.
From its inception in 1989 through 1994, MCC's primary source of
revenue was generated by providing operator services to the hospitality industry
as an OSP Services provider. Due to declining call volumes, caused in part by
the use of proprietary calling cards and other dial-around activities (such as
1-800-CALL ATT), MCC entered into a contract with AT&T in October 1994 to route
operator services traffic to AT&T through the Lodging Partnership program. Under
the Lodging Partnership, AT&T processed the calls, carried call traffic and
billed the end user. In return, AT&T paid MCC commissions on the calls dialed.
In light of the declining call volumes and narrow profit margins
experienced by MCC under the Lodging Partnership with AT&T, MCC and AT&T agreed
to terminate the Lodging Partnership arrangement effective October 15, 1998.
AT&T agreed to purchase all of the customer contracts under the Lodging
Partnership and to directly manage the existing customers under the contracts.
As a result, MCC recorded a one-time gain in the fourth quarter of $453,396.
Revenues to MCC from the AT&T agreement ended in the fourth quarter of 1998. The
decision to end the AT&T relationship followed MCC's growth in 1998 as a
provider of telecommunications services as a result of the commercial
introduction of the Telemanager in September 1997, the completion of the PIC
acquisition in October 1997 and the completion of the Incomex acquisition in
February 1998. MCC currently conducts its business through three principal
business units: (i) MTS, which provides telecommunications management and
consulting services, (ii) PIC/ATN, which provides operator services and related
value-added services, and (iii) Incomex, which provides billing and collection
services for calls to the United States from resort hotels in Mexico.
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<PAGE> 18
RESULTS OF OPERATIONS
The following table sets forth statements of operations items and the
percentages that such items bear to revenues:
<TABLE>
<CAPTION>
Years ended December 31
-----------------------
1998 1997
---- ----
<S> <C> <C>
Revenues................................... 100% 100%
Cost of sales.............................. 67 75
Selling, general and administrative........ 22 56
Depreciation and amortization.............. 5 25
Loss from impairment of property,
equipment and intangible assets.......... -- 16
--- ---
Total operating expenses................... 27 97
Operating income (loss).................... 6 (72)
Interest expense........................... 7 10
Loss from joint venture.................... -- 12
Income taxes............................... -- --
Net (loss)................................. (1)% (94)%
=== ===
</TABLE>
The information for the year ended December 31, 1997 in the preceding
table includes statement of operations data for PIC after the consummation of
the acquisition of PIC on October 31, 1997. The information for the year ended
December 31, 1998 in the preceding table includes statement of operations data
for Incomex after the consummation of the Incomex acquisition on February 13,
1998.
Revenues. Consolidated revenues increased $25.6 million, or 305%, to
$34.0 million for the twelve months ended December 31, 1998 from $8.4 million
for the twelve months ended December 31, 1997. Revenues during the twelve months
ended December 31, 1998 consisted of $5.2 million attributable to MTS, $20.8
million attributable to PIC/ATN compared with $1.9 million in the previous year
following its acquisition on October 31, 1997, and $8.0 million attributable to
Incomex following its acquisition in February 1998. Call processing revenues
generated from MTS through its Lodging Partnership program decreased $2.5
million, or 54%, to $2.1 million for the twelve months ended December 31, 1998
from $4.6 million for the twelve months ended December 31, 1997. This decrease
was the result of declining room counts contracted under the Lodging Partnership
program, decreased call counts per room from the previous year and the
termination of the AT&T agreement effective October 1998. Revenues from other
service income generated by MTS increased $790,000, or 642%, to $913,000 for the
twelve months ended December 31, 1998 from $123,000 for the twelve months ended
December 31, 1997. Telemanager revenues were $635,000 for the twelve months
ended December 31, 1998, compared to none for the twelve months ended December
31, 1997.
In October 1998, MCC and AT&T agreed to end the Lodging Partnership.
Under this agreement, AT&T will directly manage all customers in the Lodging
Partnership. MCC reported a one-time gain of $453,396 during the fourth quarter
of 1998 relating to the termination of its agreement with AT&T. Revenues of $2.0
million and marginal net profits have been recognized by MCC from the AT&T
agreement for the twelve months ended December 31, 1998. These revenues and net
profits will not be present in future periods.
Cost of Sales. Consolidated cost of sales increased $16.5 million, or
262%, to $22.8 million for the twelve months ended
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<PAGE> 19
December 31, 1998 from $6.3 million for the twelve months ended December 31,
1997. Cost of sales during the twelve months ended December 31, 1998 consisted
of $3.4 million attributable to MTS, $14.7 million attributable to PIC/ATN and
$4.7 million attributable to Incomex following its acquisition in February 1998.
Costs associated with call processing revenues for MTS decreased $1.9 million,
or 40%, to $2.9 million for the twelve months ended December 31, 1998 from $4.8
million for the twelve months ended December 31, 1997.
A nonstandard charge of $390,000 was taken in the fourth quarter of
1998 as a result of a dispute in collection procedures and policies with a
billing and collection processor for Incomex. MCC has changed vendors and does
not expect a recurrence of this issue, except for approximately $100,000 in the
first two months of 1999.
Gross Profit. Consolidated gross operating profit increased $9.1
million, or 423%, to $11.2 million for the twelve months ended December 31, 1998
from $2.1 million for the twelve months ended December 31, 1997. Gross operating
profit during the twelve months ended December 31, 1998, consisted of $1.9
million attributable to MTS compared to $1.6 million in 1997, $6.1 million
attributable to PIC/ATN compared to $500,000 in 1997, and $3.2 million
attributable to Incomex following its acquisition in February 1998.
Selling, General and Administrative Expense. Consolidated selling,
general and administrative expense increased $2.8 million, or 59%, to $7.5
million for the twelve months ended December 31, 1998 from $4.7 million for the
twelve months ended December 31, 1997. Selling, general and administrative
expense during the twelve months ended December 31, 1998 consisted of $3.5
million attributable to MTS and Corporate compared to $4.3 million in 1997, $2.7
million attributable to PIC/ATN compared to $403,000 in 1997, and $1.3 million
attributable to Incomex following its acquisition in February 1998. MTS and
Corporate selling, general and administrative expenses decreased $500,000, or
13%, to $3.5 million for the twelve months ended December 31, 1998 from $4.0
million for the twelve months ended December 31, 1997. The decrease was
primarily due to a reduction in commissions and costs associated with the
termination of the AT&T agreement in October 1998.
Depreciation and Amortization Expense. Consolidated depreciation and
amortization expense decreased $0.3 million, or 14%, to $1.8 million for the
twelve months ended December 31, 1998 from $2.1 million for the twelve months
ended December 31, 1997. Depreciation and amortization expense during the twelve
months ended December 31, 1998 consisted of $1.4 million attributable to MTS and
Corporate, $436,000 attributable to PIC/ATN and $12,000 attributable to Incomex.
The completion of the acquisition of PIC in October 1997 resulted in additional
goodwill and acquisition cost amortization of $406,000 for the twelve months
ended December 31, 1998. The completion of the Incomex acquisition in February
1998 resulted in goodwill and acquisition cost amortization of $162,000 for the
twelve months ended December 31,1998. Such increases were offset by a decrease
in depreciation of property and equipment due to the impairment loss recorded in
1997 of $1.4 million. As a result of the PIC earn-out settlement and the Incomex
earn-out settlement recorded in the fourth quarter of 1998 (see Notes 3 and 4 to
Notes to Consolidated Financial Statements) MCC recorded additional goodwill of
$4.4 million which will be amortized over the remaining life of the original
goodwill. This will result in higher amortization expenses in future periods.
Gain on AT&T Agreement Buyout. MCC's agreement with AT&T was amended
during 1998 to terminate as of October 15, 1998. Under the amendment, AT&T will
directly manage the existing customers under the contracts and AT&T assumed
liability for all commissions owed to the existing customers for the period
March 1, 1998 to October 15, 1998. As a result, MCC recorded a one-time gain in
the fourth quarter of 1998 of $453,396 representing the commissions assumed by
AT&T less the write-off of owned equipment at the existing customers'
properties.
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<PAGE> 20
Interest Expense. Consolidated interest expense, including amortization
of debt discount, increased $1.6 million, or 186%, to $2.4 million for the
twelve months ended December 31, 1998 from $847,000 for the twelve months ended
December 31, 1997. The primary reason for the increased interest expense was due
to additional debt incurred related to the acquisition of PIC and the
acquisition of fixed assets. Interest expense during the twelve months ended
December 31, 1998 consisted of $1.5 million attributable to MTS and Corporate,
$524,000 attributable to PIC/ATN and $356,000 attributable to Incomex following
its acquisition in February 1998. Interest expense incurred by MTS and Corporate
increased $790,000 or 102%, to $1.5 million for the twelve months ended December
31, 1998 from $775,000 for the twelve months ended December 31, 1997.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1998, MCC's current liabilities of $12.6 million
exceeded current assets of $3.8 million resulting in a working capital deficit
of $8.8 million. During 1998, MCC used $0.7 million in cash for operating
activities, and $2.8 million in investing activities. MCC received proceeds from
new debt financing of $7.6 million and repaid borrowings on notes payable and
made payments on capital lease obligations of $2.9 million. These activities
resulted in an increase in available cash of $1.2 million for the twelve months
ended December 31, 1998.
Our principal sources of capital to date have been public and private
offerings of debt and equity securities and lease and debt financing
arrangements with Berthel Fisher & Company, Inc. and its subsidiaries and their
affiliated leasing partnerships ("Berthel") to purchase telecommunications
equipment. The total amount of lease and debt financing with Berthel at December
31, 1998 was $6.2 million. MCC currently makes monthly lease and debt payments
of approximately $163,000, in the aggregate, pursuant to these financing
arrangements. As of December 31, 1998, MCC was current on all lease payments to
Berthel. However, subsequent to year-end, MCC has not made the March and April
1999 payments. Berthel only has the right to demand that MCC cure this violation
but has not made such demand as of May 12, 1999.
As of December 31, 1998, MCC had total current debt of $9.3 million.
From the start of 1999 through May 10, 1999, MCC raised $3.7 million
from debt financing. MCC does not believe that its existing capital and
anticipated funds from operations will be sufficient to meet its anticipated
cash needs for working capital, capital expenditures, debt obligations and
investments in acquisitions in 1999. MCC currently estimates that it will need
at least $6.3 million in debt or equity financings in 1999 in addition to the
$3.7 million debt financing discussed above, and in addition to cash flows from
operations, to fund its cash requirements including its initial investments in
ACTEL Integrated Communications, Inc. and AcNet S.A. de C.V. In addition, MCC
may be required to obtain additional financing in the event of new acquisition
opportunities. MCC has entered into a commitment letter with a major lending
institution for a senior secured credit facility of up to $25 million. If this
facility is completed, MCC believes that the proceeds will be sufficient to meet
its anticipated cash needs for 1999, although future investments, acquisitions
or other transactions may require additional debt or equity financing. Because
there are significant conditions remaining to be satisfied with respect to the
proposed credit facility, including the negotiation of definitive loan
documents, MCC can not assure you that it will complete this credit facility or,
if completed, that the terms of the credit facility will be as presently
contemplated. If MCC is unable to complete the proposed credit facility, it
would expect to seek necessary financing through other debt or equity sources.
However, no assurance can be given that MCC will be able to raise adequate funds
through such financings or generate sufficient cash flows to meet MCC's cash
needs. Insufficient funds may require MCC to delay, scale back or eliminate some
or all of its market development plans or otherwise may have a material adverse
effect on MCC. See "Forward-Looking Statements" below.
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<PAGE> 21
YEAR 2000 PREPARATIONS
The Year 2000 issue relates to computer hardware and software and other
systems designed to use two digits rather than four digits to define the
applicable year. As a result, the Year 2000 would be translated as two zeroes.
Because the Year 1900 could also be translated as two zeroes, systems which use
two digits could read the date incorrectly for a number of date-sensitive
applications, resulting in potential calculation errors or the shutdown of major
systems. MCC has undertaken various initiatives intended to ensure that its
computer hardware and software and other systems will function properly with
respect to dates in the Year 2000 and thereafter. The systems subject to
potential Year 2000 issues include not only information technology ("IT")
systems, such as accounting and data processing, communications systems and
MCC's telecommunications switches, but also non-IT systems, such as alarm
systems, fax machines or other miscellaneous systems.
MCC's State of Readiness. MCC's main internal systems, including IT
systems such as financial systems, the Telemanager and MCC's telecommunications
switches, and non-IT systems have been tested and are either currently believed
to be Year 2000 compliant or are expected to be Year 2000 compliant by the end
of the third quarter of 1999. MCC anticipates completing surveys to its key
customers and vendors during the second quarter of 1999.
Costs to Address MCC's Year 2000 Compliance. The majority of MCC's
internal Year 2000 issues have been or will be corrected through systems
upgrades, including an upgrade of MCC's telecommunications switches, some of
which are being made for other business purposes. MCC estimates that the costs
of all such upgrades will not exceed $200,000, of which approximately $100,000
had been incurred through December 31, 1998.
Risks to MCC relating to the Year 2000 Issue. MCC believes that its
reasonably likely worse case scenario would involve malfunctions of MCC's
telecommunications switches or the internal systems of MCC's customers and key
vendors. Any such malfunctions which result in serious disruption of MCC's
ability to process calls could have a material adverse effect on MCC's results
of operations and financial condition. MCC plans to monitor the Year 2000
compliance of its significant customers and vendors. However, a number of risks
relating to the Year 2000 issue may be out of MCC's control, including the
compliance status of MCC's customers and vendors and MCC's reliance on outside
links for essential services such as power. There can be no assurance that a
failure of systems of third parties on which MCC's systems and operations rely
to be Year 2000 compliant will not have a material adverse effect on MCC's
business, financial condition or operating results.
MCC's Year 2000 Contingency Plans. By the end of the third quarter of
1999, MCC expects to be substantially Year 2000 compliant. To the extent that
any of MCC systems are not Year 2000 compliant by the end of the third quarter
of 1999, MCC believes that it will have time to implement alternative systems.
MCC's ability to respond to noncompliance by its customers and vendors will be
limited.
19
<PAGE> 22
FORWARD-LOOKING STATEMENTS
This prospectus contains statements, including statements of
management's belief or expectation, which may be forward-looking within the
meaning of applicable securities laws. Such statements are subject to known and
unknown risks and uncertainties that could cause actual future results and
developments to differ materially from those currently projected. Such risks and
uncertainties include, among others, the following:
- MCC's access to adequate debt or equity capital to meet MCC's
operating and financial needs;
- MCC's ability to integrate and assimilate the businesses of
PIC/ATN and Incomex;
- MCC's ability to respond to competition in its markets;
- MCC's ability to expand into new markets and to effectively manage
its growth;
- customer acceptance and effectiveness of the Telemanager and
MCC's ability to develop new technology and to adapt to
technological change in the telecommunications industry;
- the risk that MCC's assessment of the Year 2000 issue, including
its identification, assessment, remediation and testing efforts,
the dates on which MCC believes it will complete such efforts and
the costs associated with such efforts, may be incorrect because
it is based upon management's estimates, which were derived from
numerous assumptions regarding future events, available resources,
third-party remediation plans, the accuracy of testing of the
affected systems and other factors;
- changes in, or failure to comply with, governmental regulation,
including telecommunications regulations;
- MCC's reliance on its key personnel and the availability of
qualified personnel;
- general economic conditions in MCC's markets;
- the risk that MCC's analyses of these risks could be incorrect
and/or the strategies developed to address them could be
unsuccessful; and
- various other factors discussed in this prospectus.
MCC will not update the forward-looking information to reflect actual
results or changes in the factors affecting the forward-looking information.
The forward-looking information referred to above includes any matters
preceded by the words "anticipates," "believes," "intends," "plans," "expects"
and similar expressions as they relate to MCC and include, but are not limited
to:
- expectations regarding MCC's financial condition and liquidity and
the proposed credit facility, as well as future cash flows;
20
<PAGE> 23
- expectations regarding sales growth, sales mix, gross margins and
related matters with respect to operating results;
- expectations regarding the expansion of MCC's business;
- the estimated costs to bring MCC's IT and non-IT systems into
compliance with respect to the Year 2000 issue and the
consequences to MCC of noncompliance by MCC or third parties; and
- expectations regarding capital expenditures and investments in new
acquisition opportunities.
21
<PAGE> 24
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth information regarding our directors and
executive officers:
<TABLE>
<CAPTION>
Name Age Current Position
---- --- ----------------
<S> <C> <C>
Guy O. Murdock 43 Chairman of the Board and Director
Thomas E. Chaplin 47 Chief Executive Officer and Director
Colin P. Halford 44 President and Director
John C. Poss (1)(2) 51 Director
Steven R. Ehlert (1)(2) 41 Director
Larry A. Erickson (1)(2) 50 Director
Wayne Wright 53 Vice Chairman of the Board and Director
Bonner B. Hardegree 51 Senior Vice President - Business Development
Paul C. Tunink 40 Vice President and Chief Financial Officer
Bill R. Wharton 37 Vice President-Operations
</TABLE>
- --------------------
(1) Member of Audit Committee
(2) Member of Compensation Committee
GUY O. MURDOCK, CHAIRMAN OF THE BOARD AND DIRECTOR. Mr. Murdock has been
Chairman of the Board and a Director since the founding of MCC in 1989. Mr.
Murdock served as Chief Executive Officer of MCC from 1989 to April 1997 and as
President of MCC from 1989 to July 1996.
THOMAS E. CHAPLIN, CHIEF EXECUTIVE OFFICER AND DIRECTOR. Mr. Chaplin has been
Chief Executive Officer and a Director of MCC since April 1997. From 1993 to
1996, Mr. Chaplin was the Senior Vice President and General Manager of APAC
Teleservices, Inc., a provider of outsourced customer service and sales
teleservices for large companies. From 1990 to 1993, Mr. Chaplin was President
and Chief Operating Officer of Unilens Corp., USA, a manufacturer of aspheric
multifocal contact lenses.
COLIN P. HALFORD, PRESIDENT AND DIRECTOR. Mr. Halford was appointed President of
MCC in July 1996. From 1994 to July 1996, Mr. Halford served as Vice President
of Sales and Marketing. Mr. Halford has served as a Director of MCC since 1993.
JOHN C. POSS, DIRECTOR. Mr. Poss has served as a Director of MCC since 1994.
From 1995 to present Mr. Poss has served as President of J.C. Poss & Company,
Inc., a telecommunications consulting firm. Mr. Poss served as President of
WorldQuest Networks, Inc., a provider of international facsimile services,
during 1997. From 1992 to 1995 Mr. Poss served as Senior Vice
President-Corporate Development and Planning of Intellicall, Inc., a provider of
technology, equipment and services to the telecommunications industry.
STEVEN R. EHLERT, DIRECTOR. Mr. Ehlert has served as a Director since 1995. From
1996 to 1999, Mr. Ehlert served as Vice President of Operations of Starter
Printables Division of Starter Corporation, a producer of athletic apparel and
equipment. From 1986 to 1996, Mr. Ehlert served as Director of Operations of
Galt Sand Company Incorporated, a commercial printing company specializing in
silk screened clothing.
22
<PAGE> 25
LARRY A. ERICKSON, DIRECTOR. Mr. Erickson has served as a Director of MCC since
1997. Mr. Erickson has served as Vice President and Controller of Rockwell
Collins, Inc., a provider of advanced avionics and airborne and mobile
communications systems and services to airlines, aircraft manufacturers and
business aircraft, a division of Rockwell International Corporation, since
November 1996. For more than 20 years prior to November 1996, Mr. Erickson
served in a variety of finance and accounting positions at Rockwell
International Corporation.
WAYNE WRIGHT, VICE CHAIRMAN OF THE BOARD AND DIRECTOR. Mr. Wright has served as
Vice Chairman of the Board since 1998 and as a Director of MCC since 1997. Since
March 1997, Mr. Wright has served as President of Priority International
Communications, Inc., a wholly owned subsidiary of MCC since October 1997. From
1996 to 1997, Mr. Wright served as Chairman of the Board of Priority
International Communications, Inc. From 1993 to 1996, Mr. Wright served as an
officer of U.S. Ameriphone.
BONNER B. HARDEGREE, SENIOR VICE PRESIDENT - BUSINESS DEVELOPMENT. Since
November 1998, Mr. Hardegree has served as MCC's Senior Vice President -
Business Development and as Executive Vice President of Priority International
Communications, Inc., a wholly owned subsidiary of MCC since October 1997. Mr.
Hardegree served as Vice President and Chief Financial Officer of Priority
International Communications, Inc. from January 1996 to November 1998. From
December 1992 to January 1996, Mr. Hardegree served as Vice President and Chief
Financial Officer of U.S. American Payphone Management.
PAUL C. TUNINK, VICE PRESIDENT AND CHIEF FINANCIAL OFFICER. Mr. Tunink has
served as Vice President and Chief Financial Officer of MCC since November 1998.
Mr. Tunink served as Vice President, Chief Financial Officer and Treasurer of
Stuart Entertainment, Inc., a manufacturer of gaming supplies, from April 1995
to October 1998. From April 1992 to April 1995, Mr. Tunink served as Divisional
Vice President - Finance of Younkers Inc., a retailer.
BILL R. WHARTON, VICE PRESIDENT - OPERATIONS. Mr. Wharton has served as MCC's
Vice President - Operations since 1995. From 1989 to 1995, Mr. Wharton served as
Director of Operations of MCC.
COMPENSATION OF DIRECTORS
We pay directors not employed by MCC an annual retainer equal to the
greater of (a) $12,000 or (b) $1,000 for each meeting of the Board of Directors
attended. In addition, we issue options to purchase up to 5,000 shares of our
common stock annually to each director not employed by MCC on the day after
election as a director with an exercise price equal to the closing market price
of the common stock on the date of issuance. During 1998, MCC made consulting
payments in the amount of $48,250 to J.C. Poss & Company, Inc., a corporation
controlled by John C. Poss, a director of MCC.
EXECUTIVE COMPENSATION
Cash and Other Compensation. The table which follows sets forth certain
information concerning compensation paid to, earned by or awarded to Thomas E.
Chaplin, our Chief Executive Officer, Guy O. Murdock, our Chairman of the Board,
Colin P. Halford, our President, and Bonner B. Hardegree, our Senior Vice
President Business Development (collectively, the "named executive officers")
during the years indicated below. No other executive officer's salary and bonus
exceeded $100,000 in 1998.
23
<PAGE> 26
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG-TERM
OTHER COMPENSATION AWARDS
ANNUAL ANNUAL SECURITIES
NAME AND COMPENSATION COMPEN- UNDERLYING ALL OTHER
PRINCIPAL POSITION YEAR SALARY ($) BONUS ($) SATION($) OPTIONS (#) COMPENSATION ($)
------------------ ---- ---------- --------- ---------- ------------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Guy O. Murdock, 1998 $150,000 $20,000 $ -- 323,236 (2) --
Chairman of the Board (1) 1997 150,000 20,000 -- 123,236 --
1996 150,000 18,750 -- -- --
Thomas E. Chaplin, 1998 209,231 40,000 -- 600,000 (4) --
Chief Executive Officer (3) 1997 105,962 40,000 -- 400,000 --
1996 -- -- -- -- --
Colin P. Halford, 1998 139,549 25,000 -- 211,201 (5) --
President 1997 121,923 25,000 -- 136,201 --
1996 100,000 10,000 -- -- --
Bonner B. Hardegree, 1998 119,204 -- -- -- --
Senior Vice 1997 21,110 -- -- -- --
President - Business 1996 -- -- -- -- --
Development (6)
</TABLE>
- ---------------
(1) Mr. Murdock resigned as Chief Executive Officer of MCC effective April 4,
1997.
(2) Includes options to purchase 123,236 shares of common stock which were
originally granted in 1997 and which were repriced effective April 3, 1998.
(3) Mr. Chaplin commenced employment with MCC effective April 4, 1997.
(4) Includes options to purchase 400,000 shares of common stock which were
originally granted in 1997 and which were repriced effective April 3, 1998
(of which 75,000 were subsequently repriced again effective May 29, 1998 and
75,000 were subsequently repriced again effective December 31, 1998).
(5) Includes options to purchase 136,201 shares of common stock which were
originally granted in 1997 and which were repriced effective April 3, 1998.
(6) Mr. Hardegree was appointed as an executive officer of MCC effective
December 1, 1998.
Options Granted During 1998. The following table provides certain
information regarding stock options granted to the named executive officers
during the year ended December 31, 1998.
24
<PAGE> 27
<TABLE>
<CAPTION>
OPTIONS/SAR GRANTS IN LAST FISCAL YEAR
INDIVIDUAL GRANTS
------------------------------------------------------------------
NUMBER OF PERCENT OF
SECURITIES TOTAL OPTIONS
UNDERLYING GRANTED TO
OPTIONS EMPLOYEES IN EXERCISE EXPIRATION
NAME GRANTED FISCAL YEAR PRICE DATE
- -------------------------- ---------------- ----------------- --------- ---------------
<S> <C> <C> <C> <C>
Guy O. Murdock............ 200,000 (1) 13.8% $2.75 April 9, 2008
Guy O. Murdock............ 123,236 (2) 8.5 2.25 April 3, 2007
Thomas E. Chaplin......... 200,000 (1) 13.8 2.75 April 9, 2008
Thomas E. Chaplin......... 250,000 (3) 17.2 2.25 April 3, 2007
Thomas E. Chaplin......... 75,000 (4) 5.2 2.94 April 3, 2007
Thomas E. Chaplin......... 75,000 (5) 5.2 3.50 April 3, 2007
Colin P. Halford.......... 75,000 (6) 5.2 2.75 April 9, 2008
Colin P. Halford.......... 136,201 (7) 9.4 2.25 April 9, 2007
Bonner B. Hardegree....... - - - -
</TABLE>
- ----------
(1) Options with respect to 100,000 shares were exercisable on the date of
grant, options with respect to 50,000 shares became exercisable on
April 9, 1999 and options with respect to 50,000 shares become
exercisable on April 9, 2000.
(2) Consists of options originally granted in 1997 and repriced effective
April 3, 1998. All of these options are currently exercisable.
(3) Consists of options originally granted in 1997 and repriced effective
April 3, 1998. Options with respect to 200,000 shares were exercisable
at December 31, 1998 and options with respect to 50,000 shares became
exercisable on April 3, 1997.
(4) Consists of options originally granted in 1997, repriced effective
April 3, 1998 to $2.25 per share and repriced again effective May 29,
1998 to $2.94 per share. All of these options are currently
exercisable.
(5) Consists of options originally granted in 1997, repriced effective
April 3, 1998 to $2.25 per share and repriced again effective December
31, 1998 to $3.50 per share. All of these options are currently
exercisable.
(6) Options with respect to 25,000 shares became exercisable on the date of
grant, options with respect to 25,000 shares became exercisable on
April 8, 1999 and options with respect to 25,000 shares become
exercisable on April 8, 2000.
(7) Consists of options originally granted in 1997 and repriced effective
April 3, 1998. Options with respect to 93,961 shares were exercisable
at December 31, 1998, options with respect to 21,120 shares became
exercisable on April 3, 1999 and options with respect to 21,120 shares
become exercisable on April 3, 2000.
Fiscal Year-End Option Values. The following table provides certain
information regarding the unexercised options held by the named executive
officers at December 31, 1998. No named executive officer exercised any options
during the year ended December 31, 1998.
25
<PAGE> 28
<TABLE>
<CAPTION>
AGGREGATED FISCAL YEAR-END OPTION VALUES
NUMBER OF SECURITIES UNDERLYING VAULE OF UNEXERCISED
UNEXERCISED OPTIONS AT FISCAL IN-THE-MONEY OPTIONS
YEAR-END AT FISCAL-END
-------------------------------- ------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Guy. O. Murdock.............. 223,236 100,000 $ 89,523 $12,500
Thomas E. Chaplin............ 450,000 150,000 137,500 43,750
Colin P. Halford............. 157,760 92,240 100,456 32,650
Bonner B. Hardegree.......... -- -- -- --
- ----------
</TABLE>
(1) Based on the reported closing bid price of $2.875 per share of common
stock on the Nasdaq Bulletin Board on December 31, 1998.
Employment Agreements. On October 1, 1998, MCC entered into an Amended
and Restated Employment Agreement with each of Thomas C. Chaplin and Guy O.
Murdock. Each of the Amended and Restated Employment Agreements has a term
through December 31, 2001. Pursuant to the Amended and Restated Employment
Agreements, Messrs. Chaplin and Murdock will receive base salaries of not less
than $250,000 and $150,000, respectively. In addition, each of them will be
eligible to participate in MCC's bonus plan and other executive compensation
plans. Each Amended and Restated Employment Agreement contains a provision
restricting competition with MCC for a period of two years following termination
of employment. Mr. Chaplin's Amended and Restated Employment Agreement provides
that if his employment is terminated by MCC for any reason other than for cause,
Mr. Chaplin will be entitled to receive severance at an annual rate of $150,000
for two years, provided, however, that if his employment is terminated by MCC or
by Mr. Chaplin for any reason within 180 days after a sale of MCC, Mr. Chaplin
will be entitled to continuation of his then effective base salary for three
years. Mr. Murdock's Amended and Restated Employment Agreement provides that if
his employment is terminated by MCC for any reason, including for cause, Mr.
Murdock will be entitled to receive severance at an annual rate of $150,000 for
two years, provided, however, that if his employment is terminated by MCC or by
Mr. Murdock for any reason within 180 days after a sale of MCC, Mr. Murdock will
be entitled to continuation of his then effective base salary for three years.
On January 1, 1999, MCC entered into an Amended and Restated Employment
Agreement with Colin P. Halford. The Amended and Restated Employment Agreement
has a term through December 31, 2001 and provides that Mr. Halford will receive
a base salary of not less than $150,000. In addition, Mr. Halford will be
eligible to participate in MCC's bonus plan and other executive compensation
plans. The Amended and Restated Employment Agreement contains a provision
restricting competition with MCC for a period of two years following termination
of employment. Mr. Halford's Amended and Restated Employment Agreement provides
that if his employment is terminated by MCC for any reason, including for cause,
Mr. Halford will be entitled to receive severance at an annual rate of $150,000
for two years, provided, however, that if his employment is terminated by MCC or
by Mr. Halford for any reason within 180 days after a sale of MCC, Mr. Halford
will be entitled to continuation of his then effective base salary for three
years.
On November 1, 1998, MCC and its wholly owned subsidiaries PIC and PICR
entered into an Employment Agreement with Bonner B. Hardegree. The Employment
Agreement has a three-year term, with automatic one-year renewals unless either
party gives notice of termination at least one year in advance of the end of the
term. Pursuant to the Employment Agreement, Mr. Hardegree will receive a base
salary of not less than $144,000. In addition, Mr. Hardegree will be entitled to
participate in MCC's
26
<PAGE> 29
bonus plans and other compensation plans and fringe benefits for executive
officers. The Employment Agreement contains a provision restricting competition
with MCC for a period of six months following termination of employment unless
termination is by MCC without "cause" or by Mr. Hardegree for "good reason." Mr.
Hardegree's Employment Agreement provides that if his employment is terminated
by MCC without "cause" or by Mr. Hardegree for "good reason," Mr. Hardegree will
be entitled to continuation of his then effective base salary for a period equal
to the greater of (i) one year, or (ii) the remaining term of the Employment
Agreement, and if MCC terminates the Employment Agreement due to failure to
continue PIC/PICR's business or the death or disability of Mr. Hardegree, Mr.
Hardegree will be entitled to continuation of his then effective base salary for
a period of one year.
CERTAIN TRANSACTIONS
MCC obtains lease and other financing services from Berthel. Berthel is
the beneficial owner of approximately 19.2% of the common stock outstanding on
March 31, 1999. MCC paid Berthel $1,115,614 in 1998, including $840,415 for
scheduled lease payments, $133,681 for interest payments and $141,518 in sales
commissions and related fees in connection with MCC's private placement of notes
and warrants. We currently make monthly lease and debt payments to Berthel of
$133,810 in the aggregate.
Effective December 31, 1998, MCC and Berthel agreed to allow Berthel to
exercise warrants to purchase an aggregate of 1,100,000 shares of common stock
at a reduced exercise price of $1.30 per share. The original exercise price of
the warrants was $1.4375.
MCC provides telecommunications services to certain hotels managed by
Larken, Inc., a corporation controlled by Larry A. Cahill. Mr. Cahill
beneficially owns approximately 9.9% of the common stock outstanding on March
31, 1999. MCC generated revenues of $463,976 in 1998 pursuant to its contracts
with Larken, Inc., and paid commissions of $360,000 to Mr. Cahill pursuant to
such contracts.
On October 31, 1997, MCC completed its acquisition of PIC/ATN. Wayne
Wright, a former shareholder of PIC and PICR, was appointed as a director of MCC
immediately following the PIC acquisition and Bonner B. Hardegree, a former
shareholder of PIC and PICR, was appointed as an executive officer of MCC in
November 1998. MCC's agreement for the PIC acquisition contained an earn-out
provision which required that MCC issue additional shares of common stock to the
former shareholders of PIC based upon the combined earnings before interest,
taxes, depreciation and amortization of PIC and PICR for certain periods after
closing. In December 1998, MCC and the former shareholders of PIC agreed to
settle the PIC earn-out based on historical and projected financial information
with respect to PIC. Pursuant to the settlement, MCC issued an aggregate of
2,300,000 shares of common stock to the former shareholders of PIC in December
1998, including 1,580,067 shares to Mr. Wright and 283,341 shares to Mr.
Hardegree. We also agreed with Mr. Wright and Mr. Hardegree that certain notes
issued to them pursuant to the PIC acquisition would bear interest at an annual
rate of 14% from the date of the settlement agreement. At December 31, 1998, an
aggregate of $317,203 was outstanding under these notes. In January 1999, the
notes to Mr. Wright and Mr. Hardegree were paid in full. MCC also entered into a
deferred payment arrangement with Mr. Wright pursuant to which Mr. Wright would
receive $300,000 payable in 24 equal monthly installments, which commenced in
January 1999.
PRINCIPAL SHAREHOLDERS
The following table sets forth information as of March 31, 1999
regarding the beneficial
27
<PAGE> 30
ownership of shares of our common stock by (i) each person who is known to MCC
to be the beneficial owner of more than 5% of the common stock; (ii) each
director and named executive officer (defined above) individually; and (iii) all
directors and executive officers as a group. Beneficial ownership of common
stock has been determined for this purpose in accordance with Rules 13d-3 and
13d-5 of the Securities and Exchange Commission, under the Securities Exchange
Act of 1934, which provide, among other things, that a person is deemed to be
the beneficial owner of Common Stock if such person, directly or indirectly, has
or shares voting power or investment power with respect to the common stock or
has the right to acquire such ownership within sixty days after March 31, 1999.
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY PERCENT
PRINCIPAL SHAREHOLDER OWNED (1) OF CLASS
--------------------- ------------ --------
<S> <C> <C>
Guy O. Murdock (2) 1,839,910 16.3
Thomas E. Chaplin (3) 1,132,056 9.9
Colin P. Halford (4) 254,030 2.4
John C. Poss (5) 63,799 *
Steven R. Ehlert (6) 120,000 1.2
Wayne Wright (7) 2,720,067 26.1
Larry A. Erickson (8) 10,000 *
Bonner B. Hardegree 341,912 3.3
Berthel Fisher & Company, Inc. (9) 2,114,335 19.2
Larry A. Cahill (10) 1,086,824 9.9
All directors and executive
officers as a group
(10 persons) (11) 6,666,325 50.9
-----------------------
* Less than 1%.
</TABLE>
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Unless otherwise indicated
below, the persons and entities named in the table have sole voting and
sole investment power with respect to all shares beneficially owned,
subject to community property laws where applicable. Shares of common
stock subject to options that are currently exercisable or exercisable
within 60 days of March 31, 1999 are deemed to be outstanding and to be
beneficially owned by the person holding such options for the purpose of
computing the percentage ownership of such person but are not treated as
outstanding for the purpose of computing the percentage ownership of any
other person.
(2) Includes 273,236 shares subject to exercise of stock options, 195,000
shares subject to the exercise of warrants and 488,889 shares subject to
the conversion of shares of Series A Preferred Stock.
(3) Includes 550,000 shares subject to exercise of stock options, 199,000
shares subject to the exercise of warrants and 355,556 shares subject to
the conversion of shares of Series A Preferred Stock.
(4) Includes 203,880 shares subject to exercise of stock options and 50,050
shares subject to exercise of warrants.
(5) Includes 53,799 shares subject to exercise of stock options.
(6) Includes 15,000 shares subject to exercise of stock options and 105,000
shares subject to exercise of warrants.
(7) Includes 80,000 shares subject to exercise of warrants.
28
<PAGE> 31
(8) Includes 10,000 shares subject to exercise of stock options.
(9) Includes (i) 1,925,764 shares of common stock held by certain affiliates
of Berthel for which Berthel shares voting and investment power, including
418,982 shares subject to exercise of warrants and 192,889 shares subject
to the conversion of shares of Series A Preferred Stock, and (ii) 75,000
shares subject to exercise of warrants. Reflects information reported in a
Schedule 13D filed with the SEC by Berthel on January 16, 1997, as amended
on June 6, 1997, January 8, 1998, May 1, 1998, June 22, 1998, August 6,
1998 and January 13, 1999. The address of Berthel is 100 Second Street
S.E., P.O. Box 74250, Cedar Rapids, Iowa 52407.
(10) Mr. Cahill's address is 3330 Southgate Court S.W., Cedar Rapids, Iowa
52404. Includes 200,000 shares subject to exercise of warrants and 444,444
shares subject to the conversion of shares of Series A Preferred Stock.
(11) Includes 1,240,466 shares subject to exercise of stock options, 679,050
shares subject to exercise of warrants and 844,445 shares subject to the
conversion of shares of Series A Preferred Stock.
SELLING SHAREHOLDERS
The selling shareholders are offering 1,324,374 shares of our common
stock for sale pursuant to this prospectus. Additional information with respect
to the selling shareholders follows.
<TABLE>
<CAPTION>
SHARES
SHARES OF COMMON STOCK OFFERED FOR
OWNED PRIOR TO SALE SHARES TO BE OWNED
OFFERING (1) HEREBY AFTER THE OFFERING (2)
------------ ------ ----------------------------
SELLING SHAREHOLDER Number Percent
- ------------------- ------ -------
<S> <C> <C> <C> <C>
Steve Rance (3) 54,652 54,652 0 *
Rance Family Trust (4) 54,367 54,367 0 *
Holderness Family Trust (4) 50,367 50,367 0 *
Jeannie Rance (4) 50,367 50,367 0 *
Robert Upshaw 45,301 45,301 0 *
David A. Coats & Terrell A. Coats, Trustees
of the David A. Coats & Terrell A. Coats
Revocable Trust (5) 33,580 33,580 0 *
Gary Newton (5) 33,580 33,580 0 *
Karri Rance Heredia (6) 16,790 16,790 0 *
Pamela Leary (6) 16,790 16,790 0 *
Angela Taylor (6) 16,790 16,790 0 *
Jason Rance (7) 4,282 4,282 0 *
Chris Clements 2,000 2,000 0 *
Scott Leblanc 100 100 0 *
William Melchionne 100 100 0 *
Cathryn Purcell 100 100 0 *
John Ellis 100 100 0 *
Courtney Shimp 100 100 0 *
Mary Ramsey 100 100 0 *
Robert Shimp 66,996 66,996 0 *
Richard Courtney 116,996 116,996 0 *
Alan Holt 1,350 1,350 0 *
Franklin Arnold 2,250 2,250 0 *
Kathy Pratt 185 185 0 *
Kimberly Jones 60 60 0 *
Felipe Valdez 75 75 0 *
Nancy Seal 211 211 0 *
Michael Fizeseri 75 75 0 *
</TABLE>
29
<PAGE> 32
<TABLE>
<CAPTION>
SHARES
SHARES OF COMMON STOCK OFFERED FOR
OWNED PRIOR TO SALE SHARES TO BE OWNED
OFFERING (1) HEREBY AFTER THE OFFERING (2)
------------ ------ ----------------------------
SELLING SHAREHOLDER Number Percent
- ------------------- ------ -------
<S> <C> <C> <C> <C>
Kristy Proctor 60 60 0 *
Francis Covert 2,000 2,000 0 *
Sterling Trust 1,085 1,085 0 *
John Wilhelm 1,300 1,300 0 *
Shani Armbruster 400 400 0 *
Timothy Holt 600 600 0 *
David Holt 600 600 0 *
William C. Holt Jr. 600 600 0 *
Symington Trust 3,600 3,600 0 *
Berthel Fisher & Co, Inc. (8) 2,114,335 286,740 1,827,595 16.8
Capital Markets Associates (9) 20,000 20,000 0 *
Gary Sherman (10) 48,852 48,852 0 *
Wheat First Securities, Custodian for
William B. McKee u/a/d 5/15/97 (10) 175,866 175,866 0 *
Mark Jazwin (10) 27,834 27,834 0 *
Barclay Investments, Inc. (10) 4,581 4,581 0 *
Edward Henderson (10) 4,581 4,581 0 *
McKee & Co. ESOP (10) 43,758 43,758 0 *
William B. McKee (10) 132,996 132,996 0 *
Ron Murusiak (10) 1,257 1,257 0 *
</TABLE>
- ---------------
* Less than 1%.
(1) This table is based upon information supplied by the selling shareholders.
Unless otherwise indicated in footnotes to this table, each of the
shareholders named in this table has sole voting and investment power with
respect to the shares shown as beneficially owned.
(2) Assumes sale of all shares offered hereby.
(3) Includes 5,497 shares subject to exercise of warrants.
(4) Includes 5,066 shares subject to exercise of warrants.
(5) Includes 3,377 shares subject to exercise of warrants.
(6) Includes 1,689 shares subject to exercise of warrants.
(7) Includes 431 shares subject to exercise of warrants.
(8) Consists of shares held by certain affiliates of Berthel, including
396,088 subject to the conversion of 2,170 shares of Series A convertible
preferred stock and 48,852 shares subject to exercise in full of warrants.
See note (9) under "Principal Stockholders" on page 28 for additional
information regarding Berthel's beneficial ownership of our common stock.
Berthel has provided a significant amount of lease and debt financing to
MCC. See "Certain Transactions" on page 26.
(9) All shares subject to exercise of warrants.
(10) All shares subject to the exercise of warrants. Each warrant is
exercisable to purchase units at an exercise price of $6.146 per unit.
Each unit consists of two shares of common stock and one warrant to
purchase one share of common stock at an exercise price of $9.50 per
share.
30
<PAGE> 33
PLAN OF DISTRIBUTION
SELLING SHAREHOLDERS
The selling shareholders may, without limitation and from time to time,
sell all or a portion of their shares of common stock being registered hereunder
on any stock exchange, market or trading facility on which the common stock is
traded, at market prices prevailing at the time of sale, fixed prices or at
negotiated prices. The common stock may, without limitation, be sold by the
selling shareholders by one or more of the following methods:
- Ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- Block trades in which the broker-dealer engaged by any of the selling
shareholders will attempt to sell the common stock as agent for such
selling shareholder but may position and resell a portion of the
block as principal to facilitate the transaction;
- Purchases by a broker-dealer as principal and resale by such
broker-dealer for its account;
- Privately negotiated transactions;
- In accordance with Rule 144 promulgated under the Securities Act of
1933, as amended, rather than pursuant to this prospectus;
- A combination of any such methods of sale; or
- Any other method permitted pursuant to applicable law.
From time to time the selling shareholders may pledge their common
stock pursuant to the margin provisions of the selling shareholder's customer
agreements with its brokers. Upon a default by such a selling shareholder, the
broker may, from time to time, offer and sell the pledged common stock.
In effecting sales, brokers-dealers engaged by the selling shareholders
may arrange for other broker-dealers to participate in such sales.
Brokers-dealers may receive commissions or discounts from the selling
shareholders (or, if any such broker-dealer acts as agent for the purchase of
such common stock, from such purchaser) in amounts to be negotiated which are
not expected to exceed those customary in the types of transactions involved.
Broker-dealers may agree with the selling shareholders to sell a specified
number of common stock at a stipulated price per share, and, to the extent such
broker-dealer is unable to do so acting as agent for the selling shareholders,
to purchase as principal any unsold common stock at the price required to
fulfill the broker-dealer commitment to the selling shareholders.
The selling shareholders and any broker-dealers or agents that
participate with the selling shareholders in sales of the common stock may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended, in connection with such sales. In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of the common
stock purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act of 1933, as amended.
MCC will pay all fees and expenses incident to the registration of our
common stock pursuant to this prospectus, other than the fees and disbursements
of counsel to the selling shareholders and underwriting discounts or
commissions, if any.
31
<PAGE> 34
WARRANTS
General. The following is a brief summary of certain provisions of the
Warrants, but such summary does not purport to be complete and is qualified in
all respects by reference to the actual text of the Warrant Agreement between
MCC and Firstar Trust Company (the "Warrant Agent"). A copy of the Warrant
Agreement is filed as an exhibit to the registration statement of which this
prospectus is a part.
Exercise Price and Terms. Each Warrant entitles the holder thereof to
purchase at any time on or prior to October 21, 1999, approximately 2.068 shares
of common stock at a price of $3.143 per share, subject to adjustment in
accordance with the anti-dilution and other provisions referred to below. The
holder of any Warrant may exercise such Warrant by surrendering the certificate
representing the Warrant to the Warrant Agent, with the subscription form on the
reverse side of such certificate properly completed and executed, together with
payment of the exercise price. The Warrants may be exercised at any time in
whole or in part at the applicable exercise price until expiration of the
Warrants. No fractional shares will be issued upon exercise of the Warrants. The
exercise price of the Warrants bears no relation to any objective criteria of
value, and should in no event be regarded as an indication of any future market
price of the securities offered hereby.
Adjustments. The exercise price and number of shares of common stock
purchasable upon the exercise of the Warrants are subject to adjustment upon the
occurrence of certain events, including stock dividends, stock splits,
combinations and reclassification of the common stock, or sale by us of shares
of common stock or other securities convertible into common stock at a price
below the then applicable exercise price of the Warrants. Additionally, an
adjustment would be made in the case of a reclassification or exchange of the
common stock, consolidation or merger of MCC with or into another corporation
(other than a consolidation or merger in which we are the surviving corporation)
or sale of all or substantially all of our assets in order to enable warrant
holders to acquire the kind and number of shares of stock or other securities or
property receivable in such event by the holder of the number of shares of
common stock that might otherwise have been purchased upon the exercise of the
Warrant. No adjustment will be made until the cumulative adjustments in the
exercise price per share amount to $.25 or more. Originally, the Warrants were
issued at an exercise price of $6.50 per share. The current exercise price of
$3.143 per share and the number of shares issuable upon exercise of the Warrants
reflect cumulative adjustments to date.
Redemption Provisions. The Warrants are subject to redemption at $.01
per Warrant on 30 days prior written notice to the Warrant holders if the
closing bid price of the common stock averages in excess of $7.15 for a period
of 20 consecutive trading days ending within 15 days of the notice of
redemption. In the event that we exercise the right to redeem the Warrants, such
Warrants will be exercisable until the close of business on the date for
redemption fixed in such notice. If any Warrant called for redemption is not
exercised by such time, it will cease to be exercisable and its holder will be
entitled only to the redemption price. Since it is our present intention to
exercise such right, Warrant holders should presume that we would call the
Warrants for redemption if such criteria are met
Transfer, Exchange and Exercise. The Warrants are in registered form
and may be presented to the Warrant Agent for transfer, exchange or exercise at
any time on or prior to their expiration date on October 21, 1999, at which time
the Warrants become wholly void and of no value. If a market for the Warrants
develops, the holder may sell the Warrants instead of exercising them. There can
be no assurance, however, that a market for the Warrants will develop or
continue.
Warrant holder not a Shareholder. The Warrants do not confer upon
holders any voting, dividend or other rights as shareholders of MCC.
32
<PAGE> 35
Modification of Warrant. MCC and the Warrant Agent may make such
modifications to the Warrants as we deem necessary and desirable that do not
adversely affect the interests of the Warrant holders. No other modifications
may be made to the Warrants without the consent of the majority of the Warrant
holders. Modification of the number of securities purchasable upon the exercise
of any Warrant, the exercise price and the expiration date with respect to any
Warrant requires the consent of the holder of such Warrant.
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
Our authorized capital stock consists of 20,000,000 shares of Common
Stock, without par value and 1,000,000 shares of Preferred Stock, without par
value (the "Preferred Stock"). We expect to submit a proposal at our 1999
Meeting of Shareholders to increase the number of authorized shares of common
stock from 20,000,000 to 40,000,000. The following description of our capital
stock is qualified in all respects by reference to our Restated Articles of
Incorporation.
As of April 9, 1999, approximately 10,329,867 shares of common stock
were outstanding, held of record by 155 shareholders. The holders of the common
stock are entitled to receive dividends when and as declared by the Board of
Directors out of any funds lawfully available therefor. Holders of common stock
are entitled to one vote per share on each matter submitted to a vote of MCC's
shareholders. There are no preemptive rights associated with any of the shares
of common stock. In the event of a liquidation, dissolution or winding upon of
MCC, holders of common stock are entitled to share equally and ratably in MCC
assets, if any, remaining after the payment of all of our debts and liabilities
and payment of the liquidation preference of the holders of the Preferred Stock.
The outstanding shares of common stock are, and the shares of common stock
offered by us hereby when issued will be, fully paid and nonassessable.
PREFERRED STOCK
Serial Preferred Stock. MCC's Board of Directors has the authority to
establish one or more series of Preferred Stock and to determine, with respect
to any series of Preferred Stock, the terms and rights of such series, including
(1) the designation of the series, (2) the number of shares of the series, which
number the Board of Directors may thereafter increase or decrease (unless
otherwise provided in the articles of amendment with respect to such series),
(3) whether dividends, if any, shall be cumulative or noncumulative, the
dividend rate of the series and the relation which such dividends bear to the
dividends payable on any other class or any other series of any class of stock,
(4) the dates at which dividends, if any, shall be payable, (5) the redemption
rights and price or prices, if any, for shares of the series, (6) the terms and
amount of any sinking fund provided for the purchase or redemption of shares of
the series, (7) the amounts payable on shares of the series in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of MCC, (8) whether the shares of the series will be convertible into shares of
any other class or series of stock, or any other security of MCC, and if so, the
specification of such other class or series or such other security, the
conversion price or prices or rate or rates, any adjustments thereof, the date
or dates as of which such shares will be convertible and all other terms and
conditions upon which such conversion may be made, (9) restrictions on the
issuance of shares of the same series or any other class or series, (10) the
voting rights, if any, of the holders of such series and (11) any other powers,
preferences and relative, participating, optional or other special rights of the
shares of such series, and the qualifications, limitations or restrictions
thereof. Our Articles of Amendment authorize us to issue up to 1,000,000 shares
of Preferred Stock.
33
<PAGE> 36
As of the date of this prospectus, the Board of Directors has
designated one series of preferred stock, Series A Convertible Preferred Stock
("Series A Preferred Stock"), of which 18,920 shares are issued and outstanding.
Terms of Series A Preferred Stock. Holders of shares of Series A
Preferred Stock are entitled to cumulative dividends in preference to any
dividend on our common stock at the rate of 8% of the original issuance price
per annum, payable at MCC's option in cash or in shares of common stock. If
dividends are paid in shares of common stock, the dividend rate will be based
upon the average closing bid price of the common stock over the 5-day trading
period ending the day prior to the dividend payment date.
In the event of any liquidation or winding up of MCC, holders of shares
of Series A Preferred Stock will be entitled to a distribution in preference to
the holders of common stock in an amount equal to the original issuance price
per share. Any remaining assets will be distributed among the holders of the
common stock.
Each holder of the shares of Series A Preferred Stock will have the
right to convert all or any part of such holder's shares of Series A Preferred
Stock into shares of common stock at any time commencing one year after the
first sale of shares of Series A Preferred Stock (the "Original Issuance Date").
The conversion rate will be equal to the original issuance price divided by a
conversion price of $1.125 per share.
All outstanding shares of Series A Preferred Stock will automatically
convert into shares of common stock at the Series A Conversion Rate on the third
anniversary of the Original Issuance Date.
Shares of Series A Preferred Stock have no voting rights except as
required by applicable law.
TRANSFER AGENT
The Transfer Agent for our common stock is Firstar Trust Company,
Milwaukee, Wisconsin.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
our company by Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c.,
Milwaukee, Wisconsin.
EXPERTS
The consolidated financial statements as of December 31, 1998 and 1997
and for the years then ended included in this Prospectus have been audited by
Deloitte & Touche LLP, independent auditors, as set forth in their report
appearing elsewhere herein (which report expresses an unqualified opinion and
includes an explanatory paragraph relating to substantial doubt about MCC's
ability to continue as a going concern) and have been so included in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). You may read and copy any
reports, proxy statements or other information we file at the Commission's
public reference room at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549 or at its public reference rooms in New York, New York, or Chicago,
Illinois. Please call the Commission at 1-800-SEC-0330 for further information
on the public reference rooms. You can also obtain copies of our Commission
filings by writing to the Public Reference Section of the
34
<PAGE> 37
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, many
of our Commission filings are available at the Commission's site on the World
Wide Web at "http//www.sec.gov."
We have filed a registration statement on Form SB-2 to register with
the Commission the common stock offered by this prospectus. This prospectus is
part of that registration statement. As allowed by Commission rules, this
prospectus does not contain all the information you can find in the registration
statement or the exhibits to the registration statement. Statements contained in
this prospectus concerning the provisions of documents are necessarily summaries
of such documents, and each statement is qualified in its entirety by reference
to the copy of the applicable document filed with the Commission.
35
<PAGE> 38
MURDOCK COMMUNICATIONS CORPORATION
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
INDEPENDENT AUDITORS' REPORT
CONSOLIDATED FINANCIAL STATEMENTS:
Consolidated Balance Sheets 2
Consolidated Statements of Operations 3
Consolidated Statements of Redeemable Securities 4
Consolidated Statements of Shareholders' Equity (Deficiency) 5
Consolidated Statements of Cash Flows 7
Notes to Consolidated Financial Statements 10
</TABLE>
F-1
<PAGE> 39
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Murdock Communications Corporation
Cedar Rapids, Iowa
We have audited the accompanying consolidated balance sheets of Murdock
Communications Corporation and subsidiaries (the "Company") as of December 31,
1998 and 1997, and the related consolidated statements of operations, redeemable
securities, shareholders' equity (deficiency) and cash flows for the years then
ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Murdock Communications Corporation
and subsidiaries at December 31, 1998 and 1997, and the results of their
operations and their cash flows for the years then ended in conformity with
generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 1 to the
consolidated financial statements, the Company's recurring losses from
operations and deficit working capital raise substantial doubt about its ability
to continue as a going concern. Management's plans concerning these matters are
also described in Note 1. The consolidated financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
DELOITTE & TOUCHE LLP
March 22, 1999
F-2
<PAGE> 40
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
ASSETS (Notes 6 and 7)
CURRENT ASSETS:
Cash $ 1,722,033 $ 547,737
Accounts receivable, less allowance for doubtful
accounts: 1998 - $654,793; 1997 - $376,589 1,690,302 846,414
AT&T commission receivable (Note 2) 62,513 --
Prepaid expenses and other current assets 280,568 109,186
------------ ------------
Total current assets 3,755,416 1,503,337
------------ ------------
PROPERTY AND EQUIPMENT:
Land and building 1,171,659 463,693
Telecommunications equipment 9,013,509 8,530,536
Furniture and equipment 748,512 537,550
------------ ------------
10,933,680 9,531,779
Accumulated depreciation (8,097,752) (7,400,982)
------------ ------------
2,835,928 2,130,797
Telecommunications equipment under capital lease,
net of accumulated amortization: 1998 - $3,326,300;
1997 - $3,209,405 181,630 370,706
------------ ------------
Property and equipment, net 3,017,558 2,501,503
------------ ------------
OTHER ASSETS:
Goodwill, net of accumulated amortization:
1998 - $697,324; 1997 - $70,061 11,643,882 4,133,648
Cost of purchased site contracts, net of accumulated amortization:
1998 - $669,597; 1997 - $740,330 173,576 484,355
Other intangible assets, net of accumulated amortization:
1998 - $348,208; 1997 - $22,911 659,155 397,556
Investments, at cost (Note 17) 1,500,296 --
Prepaid commissions 1,704,444 --
Other noncurrent assets 223,963 365,654
------------ ------------
Total other assets 15,905,316 5,381,213
------------ ------------
TOTAL $ 22,678,290 $ 9,386,053
============ ============
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE> 41
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIENCY)
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
CURRENT LIABILITIES:
Notes payable (Note 6) $ 7,401,371 $ 1,715,000
Outstanding checks in excess of bank balances -- 231,452
Accounts payable 1,204,690 1,684,090
Accrued expenses 2,059,362 1,453,334
Current portion of capital lease obligations
principally with a related party (Note 12) 868,754 181,322
Current portion of long-term debt with related parties (Note 7) 828,331 949,497
Current portion of long-term debt, others (Note 7) 199,287 259,654
------------ ------------
Total current liabilities 12,561,795 6,474,349
LONG-TERM LIABILITIES:
Capital lease obligations principally with a related party,
less current portion (Note 12) 3,133,077 3,375,011
Long-term debt with related parties, less current portion (Note 7) 2,105,325 3,293,829
Long-term debt, others, less current portion (Note 7) 725,381 292,493
Accumulated loss of joint venture in excess of initial investment (Note 5) 60,393 380,913
Deferred income 15,189 51,447
------------ ------------
Total liabilities 18,601,160 13,868,042
------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 12)
SHAREHOLDERS' EQUITY (DEFICIENCY) (Note 1):
8% Series A Convertible Preferred Stock, $100 stated value (Note 8):
Authorized - 50,000 shares
Issued and outstanding: 1998 - 18,920 ($1,892,000
liquidation value);
1997 - 16,250 shares 1,837,109 1,544,146
Common stock, no par or stated value (Note 10):
Authorized - 20,000,000 shares
Issued and outstanding: 1998 - 10,329,867 shares; 1997 - 4,458,439
shares 19,834,810 11,343,308
Common stock warrants (Note 9):
Issued and outstanding: 1998 - 4,420,763; 1997 - 2,149,279 438,905 315,400
Additional paid-in capital 134,000 134,000
Accumulated deficit (18,167,694) (17,818,843)
------------ ------------
Total shareholders' equity (deficiency) 4,077,130 (4,481,989)
------------ ------------
TOTAL $ 22,678,290 $ 9,386,053
============ ============
</TABLE>
F-4
<PAGE> 42
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
REVENUES:
Call processing $ 32,386,570 $ 7,629,116
Other revenue 1,601,529 788,004
------------ ------------
Total revenues 33,988,099 8,417,120
------------ ------------
COST OF SALES:
Call processing 21,859,097 5,958,335
Other cost of sales 516,220 314,322
Nonstandard international bad debt expense 390,276 --
------------ ------------
Total cost of sales 22,765,593 6,272,657
------------ ------------
GROSS PROFIT 11,222,506 2,144,463
------------ ------------
OPERATING EXPENSES:
Selling, general and administrative expense 7,468,246 4,702,754
Depreciation and amortization expense 1,848,748 2,142,773
Loss from impairment of property, equipment and intangible assets -- 1,353,010
------------ ------------
Total operating expenses 9,316,994 8,198,537
------------ ------------
INCOME (LOSS) FROM OPERATIONS 1,905,512 (6,054,074)
------------ ------------
NONOPERATING INCOME (EXPENSE):
Gain on AT&T contract buyout (Note 2) 453,396 --
Interest expense (2,426,140) (847,203)
Other income 8,906 --
------------ ------------
Total nonoperating income (expense) (1,963,838) (847,203)
------------ ------------
LOSS BEFORE INCOME TAX EXPENSE AND
JOINT VENTURE LOSS (58,326) (6,901,277)
Loss from joint venture (Note 5) 41,546 993,329
Income tax expense (Note 11) 74,466 5,402
------------ ------------
NET LOSS (174,338) (7,900,008)
Dividends and accretion on 8% Series A Convertible Preferred Stock (174,513) (35,007)
------------ ------------
NET LOSS ATTRIBUTABLE TO COMMON SHAREHOLDERS $ (348,851) $ (7,935,015)
------------ ------------
BASIC AND DILUTED NET LOSS PER COMMON SHARE $ (.06) $ (1.89)
------------ ------------
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING 5,422,783 4,208,439
============ ============
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE> 43
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF REDEEMABLE SECURITIES
YEARS ENDED DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
10% SERIES A
REDEEMABLE
PREFERRED STOCK
<S> <C>
BALANCE AT JANUARY 1, 1997 $ 24,480
Accrued dividends on 10% Series A
Redeemable Preferred Stock 170
Repurchase of 200 shares of 10% Series A
Redeemable Preferred Stock (24,650)
--------
BALANCE AT DECEMBER 31, 1997 AND 1998 $ --
========
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE> 44
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (DEFICIENCY)
YEARS ENDED DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
8% SERIES A
CONVERTIBLE COMMON STOCK
PREFERRED STOCK COMMON STOCK WARRANTS
------------------------- --------------------------- --------------------------
NUMBER NUMBER NUMBER
OF OF OF
SHARES ISSUED SHARES ISSUED WARRANTS ISSUED
<S> <C> <C> <C> <C> <C> <C>
BALANCES AT JANUARY 1, 1997 -- $ -- 4,152,494 $ 10,820,898 1,173,089 $ 113,336
Insurance of options to directors -- -- -- -- -- --
Accrued dividends on 10% Series A -- -- -- -- -- --
Redeemable Preferred Stock
Exercise of common stock warrants -- -- 5,945 10,536 (3,089) (4,936)
Conversion of notes payable, accrued
interest and long-term debt with a
related party into common stock
(Note 7) -- -- 465,265 1,334,274 -- --
Issuance of 8% Series A Convertible
Preferred Stock, net of offering
costs of $87,636 16,250 1,537,364 -- -- -- --
Issuance of common stock in
connection with the acquisition of
PIC and PIC-R (Note 3) -- -- 300,000 511,874 -- --
Issuance of warrants to
Berthel in connection with lease
and note modifications -- -- -- -- 979,279 207,000
Recission of conversion of notes
payable, accrued interest and long-
term debt with a related party into
common stock (Note 7) -- -- (465,265) (1,334,274) -- --
Accretion to conversion price of 8%
Series A Convertible
Preferred Stock -- 6,782 -- -- -- --
Accrued dividends on 8% Series A
Convertible Preferred Stock -- -- -- -- -- --
Net loss for 1997 -- -- -- -- -- --
BALANCES AT DECEMBER 31, 1997 16,250 $ 1,544,146 4,458,439 $ 11,343,308 2,149,279 $ 315,400
======== ============ =========== ============ ========= =========
<CAPTION>
SHARE-
ADDITIONAL HOLDERS'
PAID-IN ACCUMULATED EQUITY
CAPITAL DEFICIT (DEFICIENCY)
<S> <C> <C> <C>
BALANCES AT JANUARY 1, 1997 $124,000 $ (9,883,658) $ 1,174,576
Insurance of options to directors 10,000 -- 10,000
Accrued dividends on 10% Series A
Redeemable Preferred Stock -- (170) (170)
Exercise of common stock warrants -- -- 5,600
Conversion of notes payable, accrued
interest and long-term debt with a
related party into common stock
(Note 7) -- -- 1,334,274
Issuance of 8% Series A Convertible
Preferred Stock, net of offering
costs of $87,636 -- -- 1,537,364
Issuance of common stock in
connection with the acquisition of
PIC and PIC-R (Note 3) -- -- 511,874
Issuance of warrants to
Berthel in connection with lease
and note modifications -- -- 207,000
Recission of conversion of notes
payable, accrued interest and long-
term debt with a related party into
common stock (Note 7) -- -- (1,334,279)
Accretion to conversion price of 8%
Series A Convertible
Preferred Stock -- (6,782) --
Accrued dividends on 8% Series A
Convertible Preferred Stock -- (28,225) (28,225)
Net loss for 1997 -- (7,900,008) (7,900,008)
-------- ------------ -----------
BALANCES AT DECEMBER 31, 1997 $134,000 $(17,818,843) $(4,481,989)
======== ============ ===========
</TABLE>
(Continued)
F-7
<PAGE> 45
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (DEFICIENCY)
YEARS ENDED DECEMBER 31, 1998 AND 1997 (CONCLUDED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
8% SERIES A CONVERTIBLE COMMON STOCK
PREFERRED STOCK COMMON STOCK WARRANTS
------------------------ --------------------- --------------------
NUMBER NUMBER NUMBER
OF OF OF
SHARES ISSUED SHARES ISSUED WARRANTS ISSUED
<S> <C> <C> <C> <C> <C> <C>
BALANCES AT DECEMBER 31, 1997 16,250 $ 1,544,146 4,458,439 $11,343,308 2,149,279 $315,400
Issuance of 8% Series A Convertible
Preferred Stock, net of issuance costs
of $5,228 2,670 261,772 -- -- -- --
Issuance of common stock and
warrants in connection with the
acquisition of Incomex (Note 4) -- -- 1,900,000 2,494,375 155,384 29,797
Exercise of warrants by a related
party -- -- 1,100,000 1,752,396 (1,100,000) (322,396)
Issuance of warrants in connection
with debt financing with a related
party (Note 12) -- -- -- -- 350,000 165,396
Issuance of warrants in connection
with debt financing of which 739,000
are with related parties (Note 6) -- -- -- -- 2,700,000 221,288
Issuance of warrants in lieu of director
and consulting fees -- -- -- -- 45,000 5,200
Issuance of warrants in lieu of agent
fees to a related party (Note 6) -- -- -- -- 121,100 24,220
Issuance of common stock in connection
with the acquisition of PIC (Note 3) -- -- 2,871,428 4,244,731 -- --
Accretion to conversion price of 8%
Series A Convertible Preferred Stock -- 31,191 -- -- -- --
Accrued dividends on 8% Series A
Convertible Preferred Stock -- -- -- -- -- --
Net loss for 1998 -- -- -- -- -- --
--------- ------------ ---------- ----------- --------- --------
BALANCES AT DECEMBER 31, 1998 18,920 $ 1,837,109 10,329,867 $19,834,810 4,420,763 $438,905
========= ============ ========== =========== ========= ========
<CAPTION>
SHARE-
ADDITIONAL HOLDERS'
PAID-IN ACCUMULATED EQUITY
CAPITAL DEFICIT (DEFICIENCY)
<S> <C> <C> <C>
BALANCES AT DECEMBER 31, 1997 134,000 $(17,818,843) $ (4,481,989)
Issuance of 8% Series A Convertible
Preferred Stock, net of issuance costs
of $5,228 -- -- 261,772
Issuance of common stock and
warrants in connection with the
acquisition of Incomex (Note 4) -- -- 2,524,172
Exercise of warrants by a related
party -- -- 1,430,000
Issuance of warrants in connection
with debt financing with a related
party (Note 12) -- -- 165,396
Issuance of warrants in connection
with debt financing of which 739,000
are with related parties (Note 6) -- -- 221,288
Issuance of warrants in lieu of director
and consulting fees -- -- 5,200
Issuance of warrants in lieu of agent
fees to a related party (Note 6) -- -- 24,220
Issuance of common stock in connection
with the acquisition of PIC (Note 3) -- -- 4,244,731
Accretion to conversion price of 8%
Series A Convertible Preferred Stock -- (31,191) --
Accrued dividends on 8% Series A
Convertible Preferred Stock -- (143,322) (143,322)
Net loss for 1998 -- (174,338) (174,338)
--------- ------------ ------------
BALANCES AT DECEMBER 31, 1998 $ 134,000 $(18,167,694) $ 4,077,130
========= ============ ============
</TABLE>
See notes to consolidated financial statements.
F-8
<PAGE> 46
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (174,338) $(7,900,008)
Adjustments to reconcile net loss to net cash flows from operating activities:
Loss from impairment of property, equipment and intangible assets -- 1,353,010
Depreciation and amortization, including amortization of technology license 1,848,748 2,226,106
Noncash interest expense 271,623 359,141
Noncash compensation expense -- 10,000
Noncash commission expense 71,000 --
Recognition of deferred gains from equipment sales with a related party -- (22,428)
Loss from joint venture 41,546 993,329
Changes in operating assets and liabilities, excluding the effects of acquisitions:
Receivables (727,670) 783,621
Other current assets (60,285) 130,684
Prepaid commissions (730,269) --
Other noncurrent assets 260,654 (187,372)
Outstanding checks in excess of bank balances (247,255) 134,192
Accounts payable (717,933) 873,691
Accrued expenses (539,525) 64,367
Deferred income (36,258) --
----------- -----------
Net cash flows from operating activities (739,962) (1,181,667)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (766,176) (641,229)
Cash paid for acquisitions (130,155) (640,156)
Payments for site contracts (2,875) (48,697)
Capitalized software development costs -- (138,013)
Cash paid for investments (1,500,296) --
Cash advanced to joint venture (362,065) (262,869)
Cash acquired with acquisitions 16,574 49,713
----------- -----------
Net cash flows from investing activities (2,744,993) (1,681,251)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on capital lease obligations, primarily to a related party (264,822) (217,344)
Proceeds from capital lease obligations with a related party 710,320 --
Borrowings on notes payable 5,406,000 1,470,000
Borrowings of long-term debt with related parties -- 54,021
Payments on notes payable (1,656,241) (595,000)
Payments on long-term debt with related parties (719,005) (46,016)
Payments on long-term debt, others (152,479) (15,217)
Dividends paid on 10% Series A Redeemable Preferred Stock -- (170)
Repurchase of 10% Series A Redeemable Preferred Stock and common stock warrants -- (24,480)
Proceeds from issuance of common stock and warrants 1,430,000 5,600
Proceeds from issuance of 8% Series A Convertible Preferred Stock 50,000 1,625,000
Payments for offering costs (144,522) (87,636)
----------- -----------
Net cash flows from financing activities 4,659,251 2,168,758
----------- -----------
NET INCREASE (DECREASE) IN CASH 1,174,296 (694,160)
CASH AT BEGINNING OF YEAR 547,737 1,241,897
----------- -----------
CASH AT END OF YEAR $ 1,722,033 $ 547,737
=========== ===========
SUPPLEMENTAL DISCLOSURE:
Cash paid during the year for interest, principally to a related party $ 2,183,214 $ 389,438
Cash paid during the year for income taxes 24,466 5,402
</TABLE>
See notes to consolidated financial statements.
F-9
<PAGE> 47
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1998 AND 1997 (CONTINUED)
- --------------------------------------------------------------------------------
SUPPLEMENTAL DISCLOSURES OF 1998 NONCASH OPERATING, INVESTING AND FINANCING
ACTIVITIES:
The Company recorded the following increases as a result of its acquisition of
Incomex:
<TABLE>
<S> <C>
Accounts receivable $ 178,731
Other current assets 111,097
Telecommunications equipment 3,242
Furniture and equipment 52,787
Accumulated depreciation (13,851)
Goodwill 920,947
Commission advances 974,175
Other assets 9,964
Notes payable (821,697)
Outstanding checks over bank balance (15,803)
Accounts payable (133,533)
Accrued expenses (826,985)
Common stock (422,500)
---------
Cash acquired with acquisition $ 16,574
=========
</TABLE>
The Company recorded deferred loan costs of $445,901 in connection with the
issuance of warrants to purchase 3,171,000 shares of common stock in the Company
in connection with debt financing and 155,384 shares of common stock in the
Company in connection with the Incomex earnout.
The Company recorded a note payable of $25,000 in exchange for accrued
consulting fees.
The Company recorded a note payable of $5,000 in exchange for accrued director
fees.
The Company recorded an increase to the carrying value of the 8% Series A
Convertible Preferred Stock and a charge to accumulated deficit of $31,191
representing the current year's accretion to its conversion price.
The Company recorded an increase in accrued expense and a charge to accumulated
deficit of $143,322 for the cumulative dividends earned by the holders of the 8%
Series A Convertible Preferred Stock.
The Company recorded prepaid commissions of $180,000 and accrued expenses of
$37,000 in connection with the issuance of 2,170 shares of 8% Series A
Convertible Preferred Stock.
The Company recorded long-term debt, others and land and building of $525,000 in
connection with the purchase of ATN's building.
The Company recorded goodwill of $3,916,889, accounts payable of $135,000,
accrued expenses of $153,059, common stock of $4,244,731 and decreased long-term
debt by $527,389 and issued 571,428 shares of common stock in connection with
the PIC earnout as discussed in Note 3.
The Company recorded goodwill of $4,103,776, accrued expenses of $59,187, issued
notes payable of $1,084,915 and common stock of $2,469,609 in connection with
the Incomex purchase as discussed in Note 4.
See notes to consolidated financial statements.
F-10
<PAGE> 48
MURDOCK COMMUNICATIONS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1998 AND 1997 (CONCLUDED)
- --------------------------------------------------------------------------------
SUPPLEMENTAL DISCLOSURES OF 1997 NONCASH OPERATING, INVESTING AND FINANCING
ACTIVITIES:
The Company contributed telecommunications equipment with a carrying value of
$349,574 as its initial investment in a joint venture (see Note 5).
The Company recorded the following increases as a result of its acquisitions of
PIC and PIC-R:
<TABLE>
<S> <C>
Accounts receivable $ 403,753
Other current assets 53,894
Telecommunications equipment 1,269,046
Furniture and equipment 193,787
Accumulated depreciation (244,761)
Goodwill 3,563,553
Purchased equipment location contracts 420,466
Accumulated amortization (193,125)
Other noncurrent assets 70,421
Notes payable (840,000)
Outstanding checks in excess of bank balances (97,260)
Accounts payable (279,917)
Accrued expenses (437,780)
Long-term debt with related parties (1,400,000)
Long-term debt, others (2,019,916)
Common stock (511,874)
-----------
Cash acquired with acquisitions $ 49,713
===========
</TABLE>
The Company recorded deferred loan and lease restructuring costs of $207,000 in
connection with the issuance of warrants to purchase 979,279 shares of common
stock in the Company to Berthel.
In connection with the modification of capital lease obligations with Berthel,
the Company recorded additional deferred lease restructuring costs and capital
lease obligations of $210,854.
The Company recorded an increase to the carrying value of the 8% Series A
Convertible Preferred Stock and a charge to accumulated deficit of $6,782
representing the current year's accretion to its conversion price.
The Company recorded an accrued expense and a charge to accumulated deficit of
$28,225 for the cumulative dividends earned by the holders of the 8% Series A
Convertible Preferred Stock.
The Company recorded an increase in accrued expense and telecommunications
equipment under capital lease for $235,000 representing sales taxes on lease
payments.
See notes to consolidated financial statements.
F-11
<PAGE> 49
MURDOCK COMMUNICATIONS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1998 AND 1997
- --------------------------------------------------------------------------------
1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS - Murdock Communications Corporation (individually,
or collectively with its wholly-owned subsidiaries discussed below, referred
to herein as the "Company") is engaged in the business of providing operator
services and call processing to North American payphones, hotels and
institutions, database profit management services and telecommunications
billing and collection services for the hospitality industry and outsourced
operator services for the telecommunications industry.
Through a series of acquisitions and new product development, the Company
has transformed itself over the last year from a long distance reseller of
AT&T network services to U.S. hotels to being a communications provider in
North America, primarily servicing the hospitality and pay telephone
businesses.
The Company operates its business under three business units. Murdock
Technology Services ("MTS"), formerly the operating unit of Murdock
Communications Corporation, was the unit responsible for marketing of AT&T
operator services. In light of the declining volume and narrow margin of the
AT&T business, and the Company's refocused business strategy, the Company
reached an agreement with AT&T to terminate their marketing agreement
effective October 15, 1998. After the effective date of the termination,
AT&T directly managed the existing customers under the contract and revenues
from the AT&T agreement ended effective in the fourth quarter of 1998. As a
result of the termination, the Company recorded a one-time gain in the
fourth quarter of $453,396.
The MTS division was created in 1998 to meet the needs of the hospitality
telecommunications management market by providing database profit management
services and other value added telecommunication services. The division's
main product, the Telemanager, is a proprietary software and hardware
product, created to help manage telecommunication installations and services
in the hospitality market. At December 31, 1998, MTS has installed the
Telemanager in approximately 174 locations compared with 80 locations at
December 31, 1997.
Effective October 31, 1997, the Company purchased Priority International
Communications, Inc. ("PIC") (see Note 3). PIC is primarily engaged in the
business of providing long-distance telecommunications services to patrons
of hotels and public and private payphone owners with which PIC has
contracts to provide such services. Services include, but are not limited
to, credit card billing services, live operator services, automated
collection and messaging delivery services, voice mail services and
telecommunications consulting. At December 31, 1998, PIC maintains site
contracts with and provides services for approximately 207 customers
throughout the United States (257 customers at December 31, 1997).
Also, on October 31, 1997, the Company purchased PIC Resources Corp.
("PIC-R") (see Note 3). PIC-R, operating through its wholly-owned subsidiary
ATN Communications, Incorporated ("ATN"), is primarily engaged in the
business of providing carrier services for long-distance telecommunications
companies throughout the United States. PIC-R handles incoming operator
assisted calls with their operators on location. Together, PIC, PIC-R and
ATN comprise the second business unit, known as "PIC/ATN".
F-12
<PAGE> 50
On February 13, 1998, the Company purchased Incomex, Inc. ("Incomex"), the
Company's third business unit (see Note 4). Incomex is primarily engaged in
the business of providing international operator services to the hospitality
industry from Mexico to the United States. At December 31, 1998, Incomex
maintains contracts with approximately 95 hotel and resort hotel properties
located in Mexico compared with approximately 80 at February 13, 1998.
BASIS OF PRESENTATION - The accompanying consolidated financial statements
have been prepared on a going concern basis, which contemplates the
realization of assets and the satisfaction of liabilities in the normal
course of business. The Company has an accumulated deficit of $18.2 million,
and current liabilities exceed current assets by $8.8 million at December
31, 1998. These factors, among others, indicate that the Company may be
unable to continue as a going concern for a reasonable period of time.
Management's plans to sustain operations are discussed below.
The financial statements do not include any adjustments relating to the
recoverability and classification of recorded asset amounts or the amounts
and classification of liabilities that might be necessary should the Company
be unable to continue as a going concern. The Company's continuation as a
going concern is dependent upon its ability to generate sufficient cash flow
to meet its obligations on a timely basis, to obtain additional financing
and refinancing as may be required, and ultimately to attain profitable
operations. Management's plans to accomplish these objectives include, but
are not limited to, the following:
- Continuing integration of the PIC/ATN and Incomex acquisitions (see
Notes 3 and 4). Management believes these acquisitions will continue to
provide additional positive cash flows as the companies are more fully
integrated and generate additional sources of call processing traffic.
- Obtaining a line of credit which would enable the Company to
restructure its debt position and finance future growth.
- Successful implementation and market acceptance of the Telemanager
system, a new source of revenues to the Company in 1998, that is being
marketed to new and existing customers. Telemanager provides the
Company's customers with information regarding the hotel's
telecommunication system in graphs and reports that are easy to read
and understand by persons lacking specialized expertise in
telecommunications.
- During the first quarter of 1999, the Company raised $1,500,000 of cash
from debt financing (see Note 18). The Company does not believe that
its existing capital and anticipated funds from operations will be
sufficient to meet its anticipated cash needs for working capital,
capital expenditures, debt obligations and investments in acquisitions
in 1999. The Company currently estimates that it will need at least $10
million, including the $1,500,000 above, in debt or equity financings
in 1999, in addition to cash flows from operations, to fund its cash
requirements and initial investments in AcNet and ACTEL (see Note 17).
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include
the accounts of the Company, the accounts of PIC and PIC-R effective October
31, 1997, and effective February 13, 1998, the accounts of Incomex, its
wholly-owned subsidiaries. Significant intercompany accounts and
transactions have been eliminated in consolidation.
USE OF ESTIMATES - The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date
of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ
significantly from those estimates. Material estimates that are particularly
susceptible to significant change in the near-term relate to the
determination of the collectibility of receivables and impairment of
long-lived assets.
F-13
<PAGE> 51
CERTAIN RISK CONCENTRATIONS - The Company derived 12% and 24% of its
revenues in 1998 from two customers of PIC/ATN and 54% of its revenues from
AT&T in 1997. At December 31, 1998 and 1997, 3% and 12%, respectively, of
the Company's receivables were due from AT&T. The Company's agreement with
AT&T ended in the fourth quarter of 1998. Also, substantially all of the
Company's leasing arrangements are with Berthel Fisher & Company and its
subsidiaries, and their affiliated leasing partnerships ("Berthel"). Berthel
owned 14.8% and 9.2% of the Company's outstanding common stock at December
31, 1998 and 1997, respectively.
REVENUE RECOGNITION - Revenues derived from the AT&T commission agreement
related to calls were recognized as revenues as the calls were placed.
Additional bonuses, primarily for reaching the number of contracted rooms or
calls specified in the agreement, were recognized when the specified
criteria had been met.
A growing portion of the Company's revenues are now derived from processing
long-distance telephone calls. The gross charges for these calls are
recognized as revenues by the Company as the calls are placed. At the same
time, amounts are recorded as cost of services for long distance charges
from the carrier of the calls, as well as charges for processing the calls,
bad debts and commissions to be paid based on the Company's prior experience
for these items.
PROPERTY AND EQUIPMENT - Property and equipment are stated at cost. For
financial reporting purposes, depreciation and amortization are computed on
these assets using the straight-line method over their estimated useful
lives ranging from three to 28 years. For income tax purposes, accelerated
methods are used. Amortization of telecommunications equipment under capital
lease is included with depreciation expense.
The Company accounts for its telecommunications equipment leases as capital
leases under the provisions of Statement of Financial Accounting Standards
("SFAS") No. 13. Accordingly, the cost of the leased assets and the related
obligations under the lease agreements are recorded at the inception of the
lease. The leases are generally for four to five years.
The Company periodically reviews long-lived assets and intangible assets for
impairment whenever events or changes in circumstances indicate that the
carrying amount of these assets may not be recoverable. During 1997, the
Company recorded an impairment write-down with respect to telecommunications
equipment owned and under capital lease, purchased site contracts and a
technology license of $1,353,010 based on the estimated discounted future
cash flows expected to be generated by such assets. The write-down primarily
related to call processing equipment at hotels and a technology license for
such equipment which became functionally obsolete upon the acquisition of
PIC-R since calls can be processed directly by PIC-R without utilizing such
equipment.
GOODWILL - Goodwill is amortized on the straight-line method over 10 years.
COST OF PURCHASED SITE CONTRACTS - The cost of obtaining site contracts is
amortized over the term of the related contracts, generally one to three
years, using the straight-line method.
OTHER INTANGIBLE ASSETS - Other intangible assets consist of software
development costs, a technology license and deferred lease and loan
restructuring costs.
F-14
<PAGE> 52
Software development costs of $138,013 at December 31, 1998 and 1997 were
incurred for products and significant product enhancements subsequent to
establishment of their technological feasibility and prior to their general
release to customers. These costs were capitalized and stated net of
accumulated amortization of $68,915 and $22,911 at December 31, 1998 and
December 31, 1997, respectively. The ultimate recovery of the costs is
dependent on the Company's ability to achieve a level of market acceptance
which will generate revenues and profits in amounts sufficient to permit
such recovery. The Company evaluates the recoverability of capitalized
software development costs by project on a periodic basis. Capitalized
software development costs are amortized using the straight-line method over
three years.
The technology license was stated at cost of $500,000 and net of accumulated
amortization of $258,333 at December 31, 1996 and was being amortized over
the technology's estimated useful life of five years using the straight-line
method. Such license was written-off during 1997 as discussed above.
Deferred lease and loan restructuring costs incurred, net of amortization,
in connection with lease and loan modification agreements of $869,350 and
$282,454 at December 31, 1998 and 1997, respectively, have been deferred and
are being amortized over the restructured lease and loan agreement term of
five years using the effective interest method. Accumulated amortization
related to deferred lease and loan restructuring costs are $279,293 and none
at December 31, 1998 and 1997, respectively.
INVESTMENTS - The Company owns a note receivable convertible into preferred
stock and convertible preferred stock. Such investments are accounted for at
cost and are not readily marketable. Should these investments experience a
decline in value that is other than temporary, the Company will recognize a
loss to reflect such decline.
INCOMEX FUNCTIONAL CURRENCY - All contracts Incomex has entered into with
their customers are denominated in United States dollars.
INVESTMENT IN JOINT VENTURE - The Company's 50% investment in joint venture
is accounted for under the equity method. Losses in excess of the Company's
investment are recorded when the Company has a legal obligation or is
otherwise committed to provide additional financial support. An other than
temporary decline in the value of the investment is recognized through a
write-down or write-off of the investment.
INCOME TAXES - The Company files a consolidated federal and certain
consolidated state income tax returns with its subsidiaries. Some states do
not allow the filing of a consolidated state tax return, and therefore,
certain subsidiaries file a separate state income tax return. Deferred
income taxes are provided for the tax consequences in future years of
temporary differences between the tax basis of assets and liabilities and
their financial reporting amounts, based on enacted tax laws and tax rates
applicable to the periods in which the differences are expected to affect
taxable income. Valuation allowances are established when necessary to
reduce deferred tax assets to the amounts expected to be realized. Income
tax expense is the tax payable for the year and the change during the period
in deferred tax assets and liabilities.
ACCRETION ON PREFERRED STOCK - Up to the date of conversion, the Company
accretes the carrying value of the 8% Series A Convertible Preferred Stock
(net of offering costs incurred) to the conversion price by the effective
interest method.
CUMULATIVE DIVIDENDS ON PREFERRED STOCK - Cumulative dividends on the 8%
Series A Convertible Preferred Stock are deducted from accumulated deficit
as the dividends are earned by the holders and an accrued liability is
recorded.
F-15
<PAGE> 53
STOCK-BASED COMPENSATION - The Company measures stock-based compensation
cost with employees as the excess of the fair value of the Company's common
stock at date of grant over the amount the employee must pay for the stock.
The Company measures stock-based compensation with other than employees as
the fair value of the goods or services received or the fair value of the
equity instrument issued, whichever is more reliably measurable.
NET LOSS PER COMMON SHARE - Basic net loss per common share is based on the
weighted average number of shares of common stock outstanding during the
year. Diluted net loss per common share is the same as basic net loss per
share due to the antidilutive effect on net loss per share of any assumed
conversion of convertible securities or exercise of options and warrants.
RECLASSIFICATIONS - Certain amounts in the 1997 financial statements have
been reclassified to conform with the current year's presentation.
IMPACT OF NEW ACCOUNTING PRONOUNCEMENTS - In June 1998, the Financial
Accounting Standards Board issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities". SFAS No. 133 establishes standards for
derivative instruments and hedging activities. It requires that an entity
recognize all derivatives as either assets or liabilities in the statement
of financial position and measure those instruments at fair value. SFAS No.
133 is effective for all fiscal quarters of fiscal years beginning after
June 15, 1999. The Company has not yet determined if the adoption of SFAS
No. 133 will have an impact on the Company's consolidated results of
operations, financial position or cash flow.
2. AT&T COMMISSION AGREEMENT
During 1995, the Company entered into an agreement with AT&T with an
effective date of December 16, 1995 (the "Old Agreement"). Under the Old
Agreement, the Company received commissions based on the number of calls
made, management fees based on 10% of the commissions earned, compliance
incentive bonuses determined quarterly and paid monthly based on the number
of calls processed each month and various additional bonuses, including a $1
million bonus to be paid in four quarterly installments for contracting
100,000 rooms under the Old Agreement by July 1, 1996. Prior to July 1,
1996, the Company had reached the 100,000 room threshold and recognized the
$1 million bonus. During 1996, an amended agreement was executed which
accelerated the payment dates of the final two quarterly installments to
February 28, 1997 and May 1, 1997.
The Old Agreement, as amended, included provisions for the refund of
$1,000,000 in bonuses paid to the Company by AT&T should the Company
terminate the agreement or fail to comply with the agreement. AT&T had
reserved a number of grounds to terminate the Old Agreement, as amended,
prior to its expiration, primarily related to certain compliance and quality
standards. AT&T was responsible for determining if the Company was in
compliance with certain standards set forth in the Old Agreement, as
amended, including achieving a 94% compliance rate with respect to AT&T
dialing standards. The Company achieved a compliance rate above 94% and,
therefore, has not forfeited any compliance bonuses received. Management is
not aware of any noncompliance nor has the Company been notified of any
noncompliance with the Old Agreement, as amended.
F-16
<PAGE> 54
During 1997, a new agreement was executed with an effective date of January
16, 1998 (the "New Agreement"). By executing the New Agreement, the Company
received a signing bonus of $200,000. Under the New Agreement, the Company
received monthly commissions based on the number of calls made, bonuses of
up to $400,000 based on the number of calls processed during the year and
monthly compliance incentive bonuses based on the number of calls processed
each month. The New Agreement included provisions for the refund of the
bonus payments should the Company terminate the New Agreement or fail to
comply with the New Agreement. AT&T was responsible for determining if the
Company was in compliance with certain standards, as set forth in the New
Agreement. AT&T reserved a number of grounds to terminate the New Agreement
prior to its expiration, with or without cause.
During 1998, the Company and AT&T agreed to terminate the agreement with an
effective date of October 15, 1998. The Company based this decision on the
declining volume and narrow margins of the AT&T business, and on the
Company's refocused business strategy. AT&T agreed to pay certain hotel
commissions otherwise payable by the Company and, as a result, the Company
recorded a one-time gain in the fourth quarter of $453,396.
3. ACQUISITION OF PIC AND PIC-R
Effective October 31, 1997, the Company purchased all of the outstanding
capital stock of PIC in exchange for a cash payment at closing of $500,000
and the issuance to certain shareholders of PIC of a promissory note in the
principal amount of $840,000 due March 1, 1998, which was subsequently
extended to June 30, 1998 (the "Short-Term Note"), and promissory notes with
an aggregate principal amount of $1,910,000 due in installments through
April 30, 1999 (the "Long-Term Notes" and, collectively with the Short-Term
Note, the "PIC Notes"). Concurrently, the Company acquired all of the
outstanding capital stock of PIC-R in exchange for a cash payment at closing
of $30,000 and the issuance by the Company of an aggregate of 300,000 shares
of common stock of the Company valued at $511,874. In connection with the
PIC acquisition, the Company also loaned $400,000 to PIC-R for capital
expenditures. The acquisitions were recorded under the purchase method for
financial reporting purposes. Goodwill of $4,203,709 associated with the
acquisitions is being amortized over ten years.
The PIC-R agreement provided that the Company would issue additional shares
of common stock to the extent that the combined earnings before interest,
taxes, depreciation and amortization ("EBITDA") of PIC and PIC-R for either
of the first two full twelve month periods after closing exceeds $1,000,000.
Shares of common stock with a quarterly average market value of $1.25 were
to be issued for each dollar of EBITDA over $1,000,000 during either of the
twelve-month periods. The Company granted piggyback registration rights to
the PIC-R shareholders with respect to any secondary offerings of common
stock made within three years after the closing of the PIC acquisition.
The Company's obligations under the PIC notes were subject to a collateral
interest in the shares of PIC stock and PIC-R stock acquired by the Company
pursuant to the PIC acquisition. In the event that the Company defaulted
with respect to the repayment of the Short-Term Note, the holders of the PIC
notes had the right to rescind the PIC acquisition by surrendering the
shares of common stock issued in the PIC acquisition and the PIC notes to
the Company in exchange for the return of all of the shares of PIC and PIC-R
stock. In addition, if the PIC acquisition had been rescinded, the
shareholders of PIC and PIC-R would retain the $530,000 cash payments made
at closing and the $400,000 advanced to PIC-R.
Effective May 21, 1998, the Company and the former shareholders of PIC and
PIC-R entered into an agreement to amend the terms of the original Stock
Purchase Agreements with respect to the Company's acquisition of PIC and
PIC-R. Pursuant to the original Stock Purchase Agreements, the former PIC
and PIC-R shareholders received certain special default rights to rescind
the acquisitions of PIC and PIC-R. The May 21, 1998 amendment terminated the
special default rights. Pursuant to the amendment, the Company also issued
571,428 shares of common stock as a prepayment of $1,000,000 of the
Long-Term Notes in reverse order of
F-17
<PAGE> 55
their maturities of the amounts owed.
Effective December 7, 1998, the Company and the former shareholders of PIC
and PIC-R entered into an Earn-Out Settlement Agreement. This Agreement
terminated the May 21, 1998 Agreement. Pursuant to the Earn-Out Settlement
Agreement, in full and final settlement of the earn-out rights for the
former shareholders of PIC and PIC-R, the Company issued 2,300,000 shares of
common stock; issued a $300,000 note payable in 24 monthly installments
commencing January 7, 1999; assumed $135,000 of costs associated with the
defense and settlement of a suit related to brokerage fees in connection
with the PIC acquisition; and agreed to pay in full the total outstanding
balances on the long-term notes issued to the principal shareholders. The
principal balances on the long term notes as of December 31, 1998 was
$338,138 of which $317,203 was subsequently paid in January 1999. Goodwill
of $3,916,889 associated with the amended terms of the agreement is being
amortized over the remaining life of the original goodwill which is eight
years and eleven months. Concurrent with the Earn-Out Settlement Agreement,
the Company entered into a consulting agreement with PIC's President for two
years and an employment agreement with PIC's Executive Vice President for
three years.
Pro forma results of operations (unaudited) for the Company reflecting the
PIC and PIC-R acquisitions for the year ended December 31, 1997 as if the
acquisitions had occurred on January 1, 1997 are as follows:
<TABLE>
<S> <C>
Total revenues $ 15,745,211
Cost of sales 11,640,553
------------
Gross operating profit 4,104,658
Selling, general and administrative expense 6,624,572
Depreciation and amortization expense 3,128,578
Loss from impairment of property, equipment and intangible asset 1,353,010
------------
Loss from operations (7,001,502)
Interest expense (1,057,519)
------------
Loss before income tax expense and joint venture loss (8,059,021)
Loss from joint venture 993,329
Income tax expense 5,620
------------
Net loss $ (9,057,970)
------------
Pro forma net loss attributable to common shareholders $ (9,092,977)
------------
Pro forma net loss per common share $ (1.24)
------------
Pro forma weighted average common shares outstanding 7,329,867
============
</TABLE>
4. ACQUISITION OF INCOMEX
On February 13, 1998, the Company entered into an agreement to purchase all
of the outstanding shares of common stock of Incomex, in exchange for
400,000 shares of common stock of the Company, valued at $422,500. The
agreement also provided for the Company to pay the selling shareholders an
aggregate amount equal to 60% of the income before income taxes of Incomex,
as defined, during the period from February 1, 1998 through July 31, 1998.
The Company had also agreed to issue common stock of the Company equal to an
aggregate quarterly average market value of $1.50 for each dollar of income
before taxes of Incomex, as defined, earned in excess of $400,000 during the
two 12 month periods beginning August, 1998. The Incomex
F-18
<PAGE> 56
acquisition has been recorded under the purchase method. Goodwill of
$901,219 associated with the acquisition is being amortized over ten years.
Concurrent with the purchase, the Company entered into employment agreements
with Incomex's Chief Executive Officer and Vice President for three years.
Effective December 7, 1998, the Company and the former shareholders of
Incomex entered into an Earn-Out Settlement Agreement. This Agreement
amended certain provisions of the Purchase Agreement to provide full and
final settlement of the earn-out rights for the former shareholders of
Incomex. Under the terms of the Earn-Out Settlement Agreement, the Company
issued 1,500,000 shares of common stock; issued $744,915 in notes payable
maturing in one year at an annual rate of 14% and includes a 1% origination
fee; issued 155,384 warrants associated with the notes payable entitling the
holder to purchase the Company's common stock at an exercise price of $3.25
which expire, if unexercised, on December 31, 2003; issued $340,000 in notes
payable due no later than April 1, 1999 and recorded cash obligations of
$117,479. Goodwill of $3,319,389 associated with the amended terms of the
agreement is being amortized over the remaining life of the original
goodwill which is nine years and two months.
Pro forma results of operations (unaudited) for the Company reflecting the
Incomex, PIC and PIC-R acquisitions for the years ended December 31, 1998
and 1997, as if the acquisitions had occurred on January 1, 1997, are as
follows:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Total revenues $ 34,468,424 $ 20,595,648
Cost of sales 23,059,280 15,297,649
------------ ------------
Gross operating profit 11,409,144 5,297,999
Selling, general and administrative expense 7,595,785 7,984,501
Depreciation and amortization expense 2,453,579 3,560,293
Loss from impairment of property, equipment
and intangible assets -- 1,353,010
------------ ------------
Income (loss) from operations 1,359,780 (7,599,805)
Gain on AT&T buyout 453,396 --
Interest expense (2,766,133) (1,413,959)
------------ ------------
Loss before income tax expense and joint venture loss (952,957) (9,013,764)
Loss from joint venture 41,546 993,329
Income tax expense 74,466 5,620
------------ ------------
Net loss $ (1,068,969) $(10,012,713)
============ ============
Pro forma net loss attributable to common shareholders $ (1,243,480) $(10,047,720)
============ ============
Pro forma net loss per common share $ (.13) $ (1.09)
============ ============
Pro forma weighted average common shares outstanding 9,232,881 9,229,867
============ ============
</TABLE>
F-19
<PAGE> 57
5. PURCHASE OF ASSETS OF INTERACTIVE COMMUNICATIONS, INC. AND FORMATION AND
OPERATION OF GUIDE STAR JOINT VENTURE
On December 13, 1996, the Company purchased all rights and interests in
interactive voice response hardware ("IVR Hardware") from Interactive
Communications, Inc. ("ICI") for a cash price of $361,600. The Company
assumed no liabilities of ICI as a result of this purchase, except that the
Company reimbursed ICI for all telephone and leasing costs incurred by ICI
prior to the date the IVR Hardware was assumed by the Company, which totaled
$64,545. Also, pursuant to this agreement, the Company entered into an
Audiotext Services Agreement with ICI covering thirty-eight IVR Hardware
platforms. This agreement was effective from January 1, 1997 until January
1, 2000, with an option to renew for successive periods of twelve months.
Under the terms of the agreement, ICI was to provide information updating
services for each IVR Hardware platform in exchange for a $1,000 per
platform monthly licensing fee to be paid by the Company. In addition, the
Company was to pay a monthly fee to ICI in the amount of 5% of the gross
monthly revenues generated by the business activities supported by the IVR
Hardware platforms after the Company had received gross revenues of
$6,000,000.
On January 31, 1997, the Company entered into an agreement with an unrelated
third party to form a joint venture, Guide Star, L.L.C. The Company
contributed the IVR platforms and other assets with a carrying value of
$349,574 in exchange for a 50% ownership interest and a preferential
distribution of $496,934. The other party contributed $209,970 in cash in
exchange for a 50% ownership interest. The joint venture provided consumer
telecommunications services related to the IVR platforms.
During the fourth quarter of 1997, management of the Company decided to
cease substantially all the operations of the Guide Star joint venture and
dispose of its assets. All assets of the joint venture have been written
down to their estimated net realizable values. The Company's net investment
in the joint venture of $(60,393) and $(380,913) at December 31, 1998 and
1997, respectively represents net liabilities of the venture for which the
Company is responsible.
Condensed financial information for the joint venture as of and for the
years ended December 31, 1998 and 1997 is as follows:
<TABLE>
<CAPTION>
TOTAL TOTAL TOTAL NET
ASSETS LIABILITIES REVENUES LOSS
<S> <C> <C> <C> <C>
1998 $10,486 $ 70,879 $ 3,142 $ (41,546)
1997 18,286 399,199 256,705 (1,237,728)
</TABLE>
On November 30, 1997, the Company and ICI entered into a Settlement
Agreement whereby the Company agreed to pay the full amount currently due
and outstanding at that date to ICI under the Audiotext Services Agreement
of $295,000 and additional costs, fees and accrued interest of $22,196, with
interest on these unpaid amounts accruing interest at 18%. All amounts under
the Settlement Agreement were paid during 1998 and the Company was released
from its continuing obligation under the Audiotext Services Agreement.
In July 1998, the joint venture entered into a written agreement with
MatrixMedia, the other 50% owner of the joint venture, providing for the
sale of the joint venture's remaining assets and certain telecommunications
equipment owned by the Company to MatrixMedia. Subject to MatrixMedia
obtaining financing, the Company anticipates the completion of this
transaction during the second quarter of 1999.
F-20
<PAGE> 58
6. NOTES PAYABLE
Notes payable as of December 31, 1998 and 1997, consisted of the following:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Past due notes payable to individuals, $400,000 of which has been provided
by related parties, bearing interest at 14%, due March 5, 1999. Warrants to
purchase 500,000 shares of the Company's common stock were issued at an
exercise price of $1.75 per share, which expire if unexercised, on March
31, 2001. A warrant to purchase 10,000 shares of the Company's common stock
was issued to Berthel at an exercise price of $1.44 per share which expires
if unexercised, on March 31, 2001. $ 500,000 $ -
Notes payable to individuals, $225,000 of which has been provided by related
parties, bearing interest at 14%, due March 31, 1999. Warrants to purchase
1,486,000 shares of the Company's common stock were issued, 225,000 of
which were issued to related parties, at an exercise price of $1.75 per
share which expire, if unexercised, on March 31, 2001. Warrants to purchase
121,100 shares of the Company's common stock were issued to Berthel in
connection with the offering with terms substantially similar to the
warrants issued in the offering. 1,486,000 -
Notes payable to individuals, $2,520,000 of which has been provided by
related parties, bearing interest at 14%, due November 30, 1999. Warrants
to purchase 684,000 shares of the Company's common stock were issued,
504,000 of which were issued to related parties. The Warrants were issued
at an exercise price of $3.25 for 604,000 warrants and $2.50 for 80,000
warrants which expire, if unexercised, on November 30, 2003. 3,420,000 -
Notes payable to the former owners of Incomex bearing interest at 14% due
November 15, 1999. 744,915 -
Noninterest-bearing notes payable to the former owners of Incomex due April
1, 1999. 340,000 -
Note payable to consultant bearing interest at 14%, due March 31, 1999.
Warrants to purchase 25,000 shares of the Company's common stock were
issued at an exercise price of $1.75 per share which expire, if
unexercised, on March 31, 2001. 25,000 -
</TABLE>
F-21
<PAGE> 59
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Note payable to director bearing interest at 14%, due March 31, 1999. A
warrant to purchase 5,000 shares of the Company's common stock was issued
at an exercise price of $1.75 per share which expires, if unexercised, on
March 31, 2000. $ 5,000 $ -
Notes payable to leasing company bearing interest ranging from 24.9% to
33.4% due in periods ranging from December 1999 to April 2002. The notes
are in arbitration, see Note 12. 480,456 -
Variable line-of-credit with a financial institution, with interest on
borrowings payable monthly at 2% above the financial institution's prime
rate (combined rate of 10.5% at December 31, 1997), collateralized by
substantially all assets of the Company not otherwise encumbered and
personally guaranteed by the Company's Chairman of the Board. - 250,000
Note payable to financial institution bearing interest at 12%,
collateralized by substantially all assets of the Company not otherwise
encumbered and personally guaranteed by the Company's Chairman of the
Board. - 225,000
Note payable to financial institution bearing interest at 2% over the bank's
prime rate (combined rate of 9.75% and 10.5% at December 31, 1998 and 1997,
respectively), due March 28, 1999, collateralized by AT&T accounts and
commission receivables, inventory and certain telecommunications equipment
with a carrying value of approximately $130,000 and $180,000 at December
31, 1998 and 1997, respectively. 400,000 400,000
Note payable to the former owners of PIC bearing interest at 8%, due June
30, 1998, collateralized by a pledge of the common stock of PIC and PIC-R. - 840,000
----------- -----------
Total $ 7,401,371 $ 1,715,000
=========== ===========
</TABLE>
Also see Note 15 with respect to the estimated fair value of notes payable.
Due to the issuance of the warrants, all notes payable issued with warrants
have an effective interest rate of 18%.
F-22
<PAGE> 60
7. LONG-TERM DEBT
Long-term debt, others as of December 31, 1998 and 1997 consisted of the
following:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Mortgage note payable to partnership due in monthly installments of $3,299,
including interest at 8.5%, until September 15, 2000, when the balance is
due. The note is collateralized by a first mortgage on the Company's
corporate office facilities and land. $ 261,796 $ 278,358
Note payable to financial institution bearing interest at 11.25%, due April
9, 1999, collateralized by substantially all assets of PIC not otherwise
encumbered and personally guaranteed by certain former PIC shareholders. - 66,165
Note payable to financial institution bearing interest at 10.25%, due August
1, 1998, collateralized by substantially all assets of PIC not otherwise
encumbered and personally guaranteed by certain former PIC shareholders. - 38,983
Notes payable to financial institution bearing interest at 11.25%, maturing
May 3, 1999 to December 2, 1999, collateralized by certain equipment and
note and lease assignments and personally guaranteed by certain former PIC
shareholders. 8,830 23,199
Note payable to vendor bearing interest at 8.5%, due March 30, 1999,
collateralized by a security interest in all billable call records
processed by the vendor on behalf of PIC. - 35,219
$120,000 variable line of credit with a financial institution, bearing
interest at 10.0%, due February 9, 1999, collateralized by substantially
all assets of PIC and personally guaranteed by certain former PIC
shareholders. - 110,223
Mortgage note payable to partnership due in monthly installments of $6,500,
including interest at 9%, due September 2008, collateralized by ATN's
office facilities and land. 514,634 -
Uncollateralized note payable to financial institution due in monthly
installments of $12,353, including interest at the financial institution's
prime rate (8.75% at December 31, 1998), until January 2000, when the
balance is due. 139,408 -
--------- --------
Total 924,668 552,147
Less current portion 199,287 259,654
--------- --------
Long-term debt, others $725,381 $292,493
========= ========
</TABLE>
F-23
<PAGE> 61
Long-term debt with related parties at December 31, 1998 and 1997 consisted
of the following:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Uncollateralized notes payable to Berthel due January 31, 2005, (net of
discount of $341,010 and $377,734 at December 31, 1998 and 1997,
respectively). Interest payable quarterly at 4%, beginning March 31, 1995
until maturity, when the balance is due (effective interest rate of 11.5%). $ 658,990 $ 622,266
Uncollateralized note payable to Berthel, due in five monthly installments
of $9,494 including interest at 14% beginning on March 30, 1998, then
fifty-five installments of $20,130 including interest at 14% until February
28, 2003. 759,309 792,786
Non-interest bearing, uncollateralized note payable to the owner of PIC,
(net of discount of $46,738 at December 31, 1998) due in monthly
installments of $12,500, beginning January 1998 through January 2008
(effective interest rate of 19.6%). 253,262 -
Note payable to Berthel due in monthly installments of $23,528 beginning
December 1, 1997 until November 1, 2002 when the balance is due including
interest at 14.5%, collateralized by all telecommunications equipment owned
by PIC-R. 839,936 988,555
Non-interest bearing notes payable to the former owners of PIC, (net of
discount of $242,840, at December 31, 1997, for an effective interest rate
of 14.5%), due in quarterly installments of $190,999, beginning on January
31, 1998 through January 31, 1999 and a balloon payment due at maturity of
$955,005 on April 30, 1999, collateralized by a pledge of the common stock
of PIC and PIC-R. During 1998, 571,428 shares of common stock were issued
in exchange for $1 million of the principal balance as discussed in Note 3,
with the remaining balance bearing interest at 12% and due December 31,
1998. The note was repaid in January 1999. 338,138 1,667,160
Uncollateralized, noninterest bearing demand notes payable to related
parties. 84,021 172,559
---------- ----------
Total 2,933,656 4,243,326
Less current portion 828,331 949,497
---------- ----------
Long-term debt with related parties $2,105,325 $3,293,829
========== ==========
</TABLE>
F-24
<PAGE> 62
Maturities of long-term debt for each of the five years subsequent to
December 31, 1998 are as follows:
<TABLE>
<CAPTION>
RELATED
OTHER PARTIES TOTAL
<S> <C> <C> <C>
1999 $199,287 $ 828,331 $1,027,618
2000 501,230 523,899 1,025,129
2001 21,353 422,734 444,087
2002 23,240 460,136 483,376
2003 25,293 39,566 64,859
Thereafter 154,265 658,990 813,255
-------- --------- ----------
Total $924,668 $2,933,656 $3,858,324
======== ========== ==========
</TABLE>
In June 1997, Berthel converted note obligations with a face value of $1.7
million and a carrying value of approximately $1.3 million into 465,625
shares of the Company's common stock. Additionally, the Company had agreed
to issue up to 187,067 "adjustment shares" to Berthel should the lowest
average closing trading price of the shares for any 30-day period during the
90 days after the shares become registered fall below $4.00 per share.
Berthel had the option to rescind the transaction if the Company did not
register the shares during 1997. Such shares were not registered during
1997.
Effective December 31, 1997, the Company and Berthel agreed to rescind the
conversion and the Company reissued each of the note obligations. Interest
on each of the note obligations from the conversion date to the rescission
date was added to the principal balance outstanding or was payable on
December 31, 1997. Also, the interest rate on one of the notes was reduced
from 15.5% to 14.0% and the repayment terms were extended. In connection
with the agreement, the Company agreed to issue warrants to Berthel for
229,279 shares of common stock of the Company, at an exercise price of $1.12
per share. The Company has assigned a fair value of $50,000 to the warrants,
that has been capitalized as deferred loan costs. The warrants will expire,
if not exercised, on December 31, 2002. Due to the issuance of the warrants,
the effective interest rate on the notes is 15.5%.
Also see Note 15 with respect to the estimated fair value of long-term debt.
8. PREFERRED STOCK
On July 2, 1997, the Company amended its Articles of Incorporation to
authorize 1,000,000 shares of a new class of "blank check" preferred stock.
On August 1, 1997, the Company authorized the issuance of up to 50,000
shares of Series A Convertible Preferred Stock (the "Convertible
Preferred"). The Convertible Preferred has a liquidation preference, subject
to adjustment, of $100 per share and accrues cumulative dividends at an
annual rate of 8% of the liquidation preference. Dividends are payable
quarterly at the Company's option in cash or in common stock. Payments to
holders of shares of the Convertible Preferred with respect to liquidation
or dividends must be made prior to any payments to the holders of shares of
the Company's common stock. The Convertible Preferred has no voting rights,
except as required by applicable law. The Convertible Preferred may also be
converted into common stock, at the holder's option, commencing one year
after issuance at the conversion rate of $1.125 per share of Common Stock
and is automatically converted into Common Stock three years after issuance
at the same conversion rate per share of Common Stock. As of December 31,
1997, the Company had received gross proceeds of $1,625,000 from the
issuance and sale of 16,250 shares of Convertible Preferred pursuant to a
private placement offering underwritten by Berthel and received an
additional $50,000 in gross proceeds in the first quarter of 1998 from the
issuance of 500 shares of Convertible Preferred.
F-25
<PAGE> 63
On February 26, 1998, the Company agreed to issue 2,170 shares of
Convertible Preferred to an affiliate of Berthel in exchange for the
prepayment of $180,000 of commissions and the payment of $37,000 of
commissions currently owed. This transaction was completed and the shares
issued on June 19, 1998.
9. COMMON STOCK WARRANTS
The Company has the following common stock warrants outstanding (all of
which are currently exercisable) at December 31, 1998:
<TABLE>
<CAPTION>
APPLICABLE
COMMON EXERCISE EXPIRATION
SHARES PRICE DATE
<S> <C> <C> <C>
Issued with initial public offering 880,000 $ 3.14 1999
Issued with initial public offering 160,000 3.07 2001
Issued with initial public offering 80,000 9.75 2001
Incomex Earn-Out Settlement (Note 4) 155,384 3.25 2003
Issued with note payable (Note 6) 1,486,000 1.75 2001
Issued with note payable (Note 6) 500,000 1.75 2001
Issued with note payable (Note 6) 604,000 3.25 2003
Issued with note payable (Note 6) 80,000 2.50 2003
Issued with stock rescission (Note 7) 229,279 1.12 2002
Issued with note payable (Note 6) 5,000 1.75 2001
Issued with note payable (Note 6) 25,000 1.75 2001
Issued with offering agreement (Note 6) 10,000 1.44 2001
Issued with short-term notes payable 15,000 1.44 2001
Issued with offering agreement (Note 6) 121,100 1.75 2001
Issued with consulting agreement 50,000 2.88 1999
Issued with consulting agreement 10,000 3.60 2003
Issued with consulting agreement 10,000 3.00 2003
-----------
Total outstanding 4,420,763
-----------
</TABLE>
The weighted average exercise price of the warrants was $2.48 and $3.48 and
the weighted average remaining life of the warrants was 2.5 and 3 years at
December 31, 1998 and 1997, respectively.
The 880,000 common stock warrants were issued in conjunction with the
initial public offering of the Company's common stock during 1996. Each
warrant is exercisable to purchase one share of common stock at a price of
$6.50 per share, subject to adjustment for dilutive issuances of stock. As a
result of the anti-dilutive provision, the exercise price at December 31,
1998 was adjusted in accordance with the agreement to $3.14. The warrants
are exercisable at any time after issuance and expire on October 21, 1999.
The warrants are redeemable at the Company's option commencing 270 days
after October 21, 1996 upon 30 days notice to holders at $.01 per warrant if
the closing bid price of the common stock averages in excess of 110% of the
exercise price of the warrants for a period of 20 consecutive trading days
ending within 15 days of the notice of redemption.
In connection with the offering during 1998 of promissory notes in a private
placement underwritten by Berthel, the Company issued to Berthel warrants to
purchase up to 121,100 shares of the Company's common stock at an exercise
price of $1.75 per share and warrants to purchase up to 10,000 shares at an
exercise price of $1.44 per share. The warrants expire, if not exercised, on
March 31, 2001.
F-26
<PAGE> 64
In conjunction with the initial public offering, the Company sold to the
underwriters, warrants to purchase 160,000 shares at $3.07 and 80,000 shares
at $9.75, as adjusted, (the "Underwriters Warrants"), subject to adjustment
for dilutive issuances of stock. The Underwriters Warrants are exercisable
on October 21, 1997 or at any time thereafter for a period of four years
from October 21, 1997.
During 1996, the Company entered into a consulting agreement (the
"Agreement") with a consultant to provide advisory services to the Company.
In addition, pursuant to the Agreement, the consultant received a warrant to
purchase up to 50,000 shares of the Company's common stock at an exercise
price of $2.88 per share. The Company assigned a fair value of $100,000 to
the warrant. The warrant expires, if not exercised, on December 20, 1999.
10. STOCK OPTION PLANS
The Company has adopted the 1993 Stock Option Plan (the "1993 Plan"). Under
the 1993 Plan, options may be granted to employees to purchase up to an
aggregate of 272,529 shares of the Company's common stock. The 1993 Plan is
administered by the Compensation Committee of the Board of Directors which
determines to whom options will be granted. The 1993 Plan provides for the
grant of incentive stock options (as defined in Section 422 of the Internal
Revenue Code) to employees of the Company. The exercise price of stock
options granted under the 1993 Plan is established by the Compensation
Committee, but the exercise price may not be less than the fair market value
of the common stock on the date of grant of each option. Each option shall
be for a term not to exceed ten years after the date of grant, and a
participant's right to exercise an option vests at the rate of twenty
percent on the date of grant and each anniversary date until the option is
fully vested.
A summary of stock option activity under the 1993 Plan during the years
ended December 31, 1998 and 1997, is summarized as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE OPTION PRICE
PRICE PER SHARE SHARES
<S> <C> <C> <C>
Balance at January 1, 1997 $ 1.81 $ 1.81 137,744
Granted 2.88 96,208
Granted 4.00 6,000
Granted 3.25 18,000
Canceled 1.81 (25,523)
Canceled 4.00 (4,000)
Canceled 3.25 (3,000)
Canceled 2.88 (1,500)
------- ------------ -------
Balance at December 31, 1997 $ 2.51 $ 1.81-$4.00 223,929
Granted 2.00 30,927
Canceled 3.25 (1,000)
Canceled 2.00 (13,255)
------- ------------ -------
Balance at December 31, 1998 $ 2.04 $ 1.81-$4.00 240,601
======= ============ =======
</TABLE>
At December 31, 1998, options for 163,026 shares were exercisable (172,779
at December 31, 1997), an additional 31,928 shares were available for future
grants and the weighted average remaining life of the options outstanding
was five years. The Company has reserved 272,529 shares of common stock in
connection with the 1993 Plan at December 31, 1998 and 1997.
F-27
<PAGE> 65
During 1997, the Company completed the development of the Murdock
Communications Corporation 1997 Stock Option Plan (the "1997 Stock Option
Plan"). During 1998, the Company amended the number of shares allocated to
1,727,471. The 1997 Stock Option Plan is also administered by the
Compensation Committee of the Board of Directors which determines to whom
the options will be granted. The 1997 Stock Option Plan provides for the
grant of incentive stock options (as defined in Section 422 of the Internal
Revenue Code) or nonqualified stock options to executives or other key
employees of the Company. The exercise price of the stock options granted
under the 1997 Stock Option Plan is established by the Compensation
Committee, but the exercise price may not be less than the fair market value
of the common stock on the date of the grant of each option for incentive
stock options. Each option shall be for a term not to exceed ten years after
the date of grant for non-employee directors and five years for certain
shareholders. Options cannot be exercised until the vesting period, if any,
specified by the Compensation Committee has expired.
A summary of stock option activity under the 1997 Stock Option Plan for the
years ended December 31, 1998 and 1997, is as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE OPTION PRICE
PRICE PER SHARE SHARES
<S> <C> <C> <C>
Balance at January 1, 1997 $ - $ - -
Granted 3.25 225,629
Granted 4.16 10,000
Granted 3.13 20,000
----- ------------ ---------
Balance at December 31, 1997 $3.28 $ 3.13-$4.16 255,629
Granted 2.25-3.50 400,000
Granted 3.13 17,000
Granted 2.81 165,000
Granted 2.75 535,000
Granted 2.00 4,073
Granted 2.25 225,629
Canceled 3.25 (225,629)
Canceled 2.00 (1,745)
----- ------------ ---------
Balance at December 31, 1998 $2.65 $ 2.00-$4.16 1,374,957
===== ============ =========
</TABLE>
Compensation expense of none and $10,000 was recorded in connection with the
grant of these options for the years ended December 31, 1998 and 1997,
respectively. At December 31, 1998, options for 893,561 shares were
exercisable (25,000 at December 31, 1997), an additional 352,514 shares were
available for future grants and the weighted average remaining life of the
options outstanding was 6 years. The Company has reserved 1,727,471 shares
of common stock in connection with the 1997 Stock Option Plan at December
31, 1998.
The Company accounts for stock option grants and awards to employees using
the intrinsic value method. If compensation cost for stock option grants and
awards had been determined based on fair value at the grant dates for 1998
and 1997 options consistent with the method prescribed by Statement of
Financial Accounting
F-28
<PAGE> 66
Standards No. 123, "Accounting for Stock Based Compensation" ("SFAS No.
123"), the Company's net loss and net loss per share would have been the pro
forma amounts indicated below:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C> <C>
Net loss attributable to common shareholders As reported $ (348,851) $ (7,935,015)
Pro forma (2,348,214) (8,073,015)
Net loss per common share As reported $ (.06) $ (1.89)
Pro forma (.43) (1.92)
</TABLE>
The weighted average fair values at date of grant for options granted during
1998 and 1997 were estimated to be $1,999,400 and $138,000, respectively.
The Company's calculations were made using the Black-Scholes option pricing
model with the following weighted average assumptions: ten years expected
life; stock volatility of 153% in 1998 and 51% in 1997; risk-free interest
rate of 6% in 1998 and 1997; and no dividends during the expected term.
During the initial phase-in period, as required by SFAS No. 123, the pro
forma amounts were determined based on stock option grants and awards in
1998 and 1997 only. The pro forma amounts for compensation cost may not be
indicative of the effects on net loss and net loss per share for future
years.
11. INCOME TAXES
The provision for income taxes consisted of the following for the years
ended December 31, 1998 and 1997:
<TABLE>
<CAPTION>
1998 1997
Current:
<S> <C> <C>
Federal $ - $ -
State 74,466 5,402
-------- --------
Total $ 74,466 $ 5,402
======== ========
</TABLE>
The provision for income taxes for the years ended December 31, 1998 and
1997 is less than the amounts computed by applying the statutory federal
income tax rate of 34% to the loss before income taxes due to the following
items:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Computed expected amount $ (34,000) $ (2,684,200)
Amortization of goodwill 295,100 -
Meals and entertainment 11,200 8,000
Officer's life insurance 5,700 8,600
State income taxes, net of federal tax benefit 74,466 3,500
Change in valuation allowance (278,000) 2,669,502
--------- ------------
Income tax provision $ 74,446 $ 5,402
========= ============
</TABLE>
At December 31, 1998 the Company has net operating loss carryforwards for
federal income tax purposes of approximately $13 million ($11 million at
December 31, 1997) to use to offset future taxable income. These net
operating losses will expire, if unused, from December 31, 2008 through
2013.
F-29
<PAGE> 67
Certain restrictions under the Tax Reform Act of 1986, caused by a change in
ownership resulting from sales of common stock, limit the annual utilization
of net operating loss carryforwards. The initial public offering of the
Company's common stock during 1996 resulted in such a change in ownership.
The Company estimates that the post-change taxable income that may be offset
with the pre-change net operating loss carryforward of approximately $4.5
million will be limited annually to approximately $600,000. The annual
limitation may be increased for any built-in gains recognized within five
years of the date of the ownership change.
Significant components of the Company's deferred tax assets and liabilities
as of December 31, 1998 and 1997 are as follows:
<TABLE>
<CAPTION>
1998 1997
Deferred tax assets:
Current:
<S> <C> <C>
Allowance for doubtful accounts receivable $ 150,000 $ 49,000
----------- -----------
Noncurrent:
Intangible asset amortization and valuation allowance 213,000 227,000
Differences in net book value of property and equipment 700,000 999,000
Capital lease adjustment 242,000 1,134,000
Deferred income - 19,000
Carryforward of net operating loss 4,917,000 4,072,000
----------- -----------
6,072,000 6,451,000
----------- -----------
Total deferred tax assets 6,222,000 6,500,000
Valuation allowance for deferred tax assets (6,222,000) (6,500,000)
----------- -----------
Net deferred tax assets $ - $ -
=========== ===========
</TABLE>
A valuation allowance for the entire balance of deferred tax assets has been
recorded because of uncertainty over their future realization.
12. COMMITMENTS AND CONTINGENCIES
The Company is obligated under long-term capital leases for
telecommunication equipment. Substantially all of the leases are with
Berthel and have been capitalized and are personally guaranteed by the
Company's Chairman of the Board. The Company is responsible for all property
taxes, maintenance and insurance. The Company also leases certain of its
facilities under operating leases. At December 31, 1998, future minimum
rental payments on lease obligations are as follows:
<TABLE>
<CAPTION>
CAPITAL LEASES
--------------------------------------------------- OPERATING
BERTHEL OTHER TOTAL LEASES
Years ending December 31:
<S> <C> <C> <C> <C>
1999 $1,351,929 $ 11,646 $1,363,575 $ 91,325
2000 1,351,929 2,608 1,354,537 42,294
2001 1,232,304 997 1,233,301 10,951
2002 1,064,828 1,064,828 9,780
2003 177,472 177,472 7,742
---------- -------- ---------- --------
Minimum rental payments 5,178,462 15,251 5,193,713 $162,092
--------
Less amounts representing interest 1,190,555 1,327 1,191,882
---------- -------- ----------
3,987,907 13,924 4,001,831
Less amounts due within one year 858,102 10,652 868,754
---------- -------- ----------
Capital lease obligations due
after one year $3,129,805 $ 3,272 $3,133,077
========== ======== ==========
F-30
</TABLE>
<PAGE> 68
As of December 31, 1998, the Company was current on all lease payments to
Berthel. However, subsequent to year end, the Company has not made the
February 1999 and March 1999 payments. Berthel only has the right to demand
that the Company cure this violation, but has not made such a demand as of
March 22, 1999.
Rent expense under operating leases for the years ended December 31, 1998
and 1997 was $30,196 and $32,921, respectively.
As of February 27, 1998, the Company entered into an agreement with Berthel
to provide $700,000 of lease financing. The financing bears interest at 14%.
In connection with the lease financing, warrants to purchase 350,000 shares
of the Company's common stock were issued at an exercise price of $1.44 per
share. As of June 30, 1998, Berthel funded the entire $700,000 of lease
financing. These warrants were exercised on December 31, 1998.
On September 30, 1997, the Company modified its existing lease agreements
with Berthel by deferring the July and August 1997 lease payments and
increasing the remaining future minimum rental payments for the payments
deferred.
During 1997, with an effective date of February 28, 1998, the Company
further modified its existing lease agreements with Berthel by deferring the
October 1997 through February 1998 lease payments until the end of the lease
term as additional payments. Total monthly lease payments are $41,850 from
March 1998 through July 1998 and $88,736 per month until February 2003. In
connection with these modifications, the Company agreed to issue warrants to
Berthel for 750,000 shares of common stock of the Company, at an exercise
price of $1.44 per share. The Company assigned a fair value of $157,000 to
the warrants, that has been capitalized as deferred lease restructuring
costs. These warrants were exercised on December 31, 1998.
The Company's wholly-owned subsidiary, PIC, is involved in an adversary
proceeding filed in connection with two jointly administered Chapter 11
proceedings in the United States Bankruptcy Court for the Southern District
of Florida. On May 13, 1997, a joint motion of the Chapter 11 Trustees and
Strategica Capital Corporation ("Strategica") was filed for an order to show
cause why certain individuals and entities, including PIC, should not be
held in civil contempt of court; for relief under Rule 70 of the Federal
Rules of Civil Procedure and Rule 7070 of the Federal Rules of Bankruptcy
Procedure; and for the entry of an order of criminal referral for criminal
conduct of certain individuals and entities, including PIC. The proceeding
does not specify a dollar amount of damages. The contempt motion was denied
by the Bankruptcy Court on November 4, 1998. Strategica filed a motion for
rehearing on November 16, 1998, which was denied by the Bankruptcy Court on
December 2, 1998. Strategica filed a notice of appeal of the adverse ruling
on December 11, 1998. PIC filed a motion for attorneys' fees and costs on
November 24, 1998, and a hearing was conducted by the Bankruptcy Court on
January 28, 1999 with respect to PIC's motion. Strategica's appeal and PIC's
motion for attorneys' fees and costs are both currently pending. No
assurance can be given as to the ultimate outcome of this matter. No loss,
if any, has been recorded in the consolidated financial statements with
respect to this matter.
Incomex and EILCO Leasing Services, Inc. ("Eilco"), a creditor of Incomex,
have commenced an arbitration proceeding to resolve a dispute regarding a
loan agreement between Incomex and Eilco. Eilco claims that Incomex is in
violation of certain covenants of the loan agreement, including provisions
relating to certain obligations of Incomex to make payments to Eilco based
on Incomex's income from telecommunications services provided to a group of
hotels in Mexico. This matter is scheduled for an arbitration hearing on
April 21, 1999. Eilco is seeking the amount due on the loan and additional
damages which may be in excess of $1,000,000 plus attorney fees. The
Company's position is that it owes only the amount due on the loan and is
not in violation of the covenants. Accordingly, the Company has not recorded
any loss in the consolidated financial statements with respect to this
matter in excess of the amount due on the loan. No assurance can be given as
to the ultimate outcome of this matter.
F-31
<PAGE> 69
On July 20, 1998, Operator Communications, Inc. ("Oncor") filed a lawsuit in
the District Court of Dallas County, Texas against the Company, Incomex, and
an unrelated third party. Oncor alleges that the defendants improperly
terminated a long distance service agreement with Oncor and claims damages
based on amounts which Oncor alleges to have advanced to the Company, lost
profits for the period in which the Company is alleged to have breached the
contract, attorneys' fees and for interference with contractual relations in
an unspecified amount of not less than $100,000. The Company has asserted a
counterclaim for accounting, breach of contract, misrepresentation and
payment of attorneys' fees. This case is at a preliminary stage and it is
not possible to assess fully the merits of Oncor's claims. The Company
intends to defend the claims against it and Incomex vigorously but no
assurance can be given to the outcome of this matter. The Company has
accrued $108,000 as a reserve in connection with this matter at December 31,
1998 in accordance with SFAS No. 5 "Accounting for Contingencies." There can
be no assurance that the loss, if any, will not exceed the reserve
established by the Company.
W.B. McKee Securities, Inc. ("McKee") filed suit against the Company in U.S.
District Court for the District of Arizona alleging breach of an investment
banking agreement relating to finders' fees for the PIC/ATN acquisition. The
Company and McKee entered into a settlement agreement in the first quarter
of 1999 with respect to this matter. Pursuant to the settlement, the Company
has agreed to pay $100,000 to McKee in installments over a three-month
period in return for a general release of all claims by McKee. The
effectiveness of the settlement agreement and McKee's release is contingent
on the timely payment by the Company of the settlement amount. The
settlement amount of $100,000 has been accrued by the Company as of December
31, 1998.
On October 1, 1998, the Company entered into an Amended and Restated
Employment Agreement with Thomas C. Chaplin, Chief Executive Officer and Guy
O. Murdock, Chairman of the Board. Each of the Amended and Restated
Employment Agreements has a term through December 31, 2001. Pursuant to the
Amended and Restated Employment Agreements, Messrs. Chaplin and Murdock will
receive base salaries of not less than $250,000 and $150,000, respectively.
In addition, each of them will be eligible to participate in the Company's
bonus plan and other executive compensation plans. Each Amended and Restated
Employment Agreement contains a provision restricting competition with the
Company for a period of two years following termination of employment. Mr.
Chaplin's Amended and Restated Employment Agreement provides that if his
employment is terminated by the Company for any reason other than for cause,
Mr. Chaplin will be entitled to receive severance at an annual rate of
$150,000 for two years, provided, however, that if his employment is
terminated by the Company or by Mr. Chaplin for any reason within 180 days
after a sale of the Company, Mr. Chaplin will be entitled to continuation of
his then effective base salary for three years. Mr. Murdock's Amended and
Restated Employment Agreement provides that if his employment is terminated
by the Company for any reason, including for cause, Mr. Murdock will be
entitled to receive severance at an annual rate of $150,000 for two years,
provided, however, that if his employment is terminated by the Company or by
Mr. Murdock for any reason within 180 days after a sale of the Company, Mr.
Murdock will be entitled to continuation of his then effective base salary
for three years.
On January 1, 1999, the Company entered into an Amended and Restated
Employment Agreement with Colin P. Halford, President. The Amended and
Restated Employment Agreement has a term through December 21, 2001 and
provides that Mr. Halford will receive a base salary of not less than
$150,000. In addition, Mr. Halford will be eligible to participate in the
Company's bonus plan and other executive compensation plans. The Amended and
Restated Employment Agreement contains a provision restricting competition
with the Company for a period of two years following termination of
employment. Mr. Halford's Amended and Restated Employment Agreement provides
that if his employment is terminated by the Company for any reason,
including for cause, Mr. Halford will be entitled to receive severance at an
annual rate of $150,000 for two years, provided, however, that if his
employment is terminated by the Company or by Mr. Halford for any reason
within 180 days after a sale of the Company, Mr. Halford will be entitled to
continuation of his then effective base salary for three years.
F-32
<PAGE> 70
On November 1, 1998, the Company and its wholly owned subsidiaries PIC and
PIC-R entered into an Employment Agreement with Bonner B. Hardegree,
Executive Vice President of PIC. The Employment Agreement has a three-year
term, with automatic one-year renewals unless either party gives notice of
termination at least one year in advance of the end of the term. Pursuant to
the Employment Agreement, Mr. Hardegree will receive a base salary of not
less than $144,000. In addition, Mr. Hardegree will be entitled to
participate in the Company's bonus plans and other compensation plans and
fringe benefits for executive officers. The Employment Agreement contains a
provision restricting competition with the Company for a period of six
months following termination of employment unless termination is by the
Company without cause or by Mr. Hardegree for good reason. Mr. Hardegree's
Employment Agreement provides that if his employment is terminated by the
Company without cause or by Mr. Hardegree for good reason, Mr. Hardegree
will be entitled to continuation of his then effective base salary for a
period equal to the greater of (i) one year, or (ii) the remaining term of
the Employment Agreement.
13. RELATED PARTY TRANSACTIONS
The Company conducts a significant amount of business with Berthel and other
affiliated entities. Berthel provided lease and other financing services,
including underwriting, to the Company. The Company also had an agreement
with an entity owned by the Company's Chairman of the Board for the use of
aircraft. The Company has also paid consulting expenses to a member of the
Company's Board of Directors and had loans with related parties.
On July 1, 1994, the Company entered into an agreement with a minority
shareholder to provide telecommunication services to hotels owned and
managed by Larken, Inc., a company 50% owned by a minority shareholder.
Revenues of $463,976 and $603,644 were generated for the years ended
December 31, 1998 and 1997, respectively. Further, the Company had call
processing receivables from the hotels included under the agreement of
$135,983 and $79,500 at December 31, 1998 and 1997, respectively. The
agreement provides for a set payment of $25,000 per month in commissions to
be paid to the minority shareholder, until January 1, 1997, when the
commission payment was increased to $30,000 per month for a period of 24
months. Also in conjunction with this agreement, effective from July 1, 1996
and through June 30, 1997, the Company paid an additional $6,000 per month
to Berthel for commissions payable to the minority shareholder pursuant to a
settlement of a dispute between Berthel and the minority shareholder.
A summary of transactions with related parties for the years ended December
31, 1998 and 1997 is as follows:
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Consulting expense $ 73,630 $ 35,181
Interest expense on related party notes payable 289,922 20,778
Commissions to minority shareholder 360,000 360,000
Interest expense on notes payable to Berthel 133,681 38,622
Lease payments to Berthel 840,415 491,175
Commissions and related fees to Berthel 141,518 115,250
Rental of aircraft - 33,116
</TABLE>
14. PROFIT SHARING PLAN
The Company has a profit sharing plan under Section 401(k) of the Internal
Revenue Code. Employees are eligible to participate in the plan after
completing three months of service. There were no contributions required and
no discretionary contributions made to the plan for the years ended December
31, 1998 and 1997.
F-33
<PAGE> 71
15. FAIR VALUE OF FINANCIAL INSTRUMENTS
The fair value amounts disclosed below are based on estimates prepared by
the Company utilizing valuation methods appropriate in the circumstances.
Generally accepted accounting principles do not require disclosure for lease
contracts. The carrying amount for financial instruments included among
cash, receivables, notes payable, and other short-term payables approximates
their fair value because of the short maturity of those instruments. The
estimated fair value of other significant financial instruments are based
principally on discounted future cash flows at rates commensurate with the
credit and interest rate risk involved.
The estimated fair values of the Company's other significant financial
instruments at December 31, 1998 and 1997 are as follows:
<TABLE>
<CAPTION>
1998 1997
------------------------------ ------------------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
<S> <C> <C> <C> <C>
Note receivable $ 806,229 $ 806,229 $ - $ -
Long-term debt 3,858,324 3,367,119 4,795,473 4,795,473
</TABLE>
16. BUSINESS SEGMENT INFORMATION
In June 1997, SFAS No. 131, "Disclosures About Segments of an Enterprise and
Related Information", was issued effective for fiscal years ending after
December 15, 1998. The Company's reportable segments are structured into a
decentralized organizational structure resulting in three stand-alone
business units. While all three business units are engaged in the business
of providing telecommunications services to hospitality and payphone
businesses, they are managed separately largely due to a series of
acquisitions the Company completed in 1997 and 1998, as discussed in Notes 3
and 4.
The Company's three reportable segments are PIC/ATN, Incomex and MTS. The
Company provides long-distance telecommunications services to hotels and
payphone owners in the United States through the PIC/ATN business unit. The
services include, but are not limited to, live operator services, credit
card billing services, automated collection and messaging delivery services,
voice mail services, telecommunications consulting and providing carrier
services for long-distance telecommunications companies. The incoming
operator assisted calls are processed with the PIC/ATN operators on
location. The Incomex business unit provides international operator services
to hotels and payphone owners in Mexico on international calls from Mexico
to the United States. The MTS business unit was created in 1998 to meet the
needs of the hospitality telecommunications management market by providing
database profit management services and other value added services. The MTS
business unit was formerly the operating unit of the Company responsible for
marketing of AT&T operator services until the contract was terminated during
the fourth quarter of 1998.
The accounting policies of the reportable segments are the same as those
described in Note 1. The Company evaluates the performance of its operating
units based on income (loss) from operations.
F-34
<PAGE> 72
Summarized financial information concerning the Company's reportable
segments is shown in the following table (amounts expressed in thousands).
The "Other" column includes the effect of eliminating inter-business unit
transactions.
<TABLE>
<CAPTION>
MTS
AND
PIC/ATN INCOMEX CORPORATE OTHER TOTAL
1998:
<S> <C> <C> <C> <C> <C>
Revenues $24,094 $7,921 $5,262 $(3,289) $33,988
Income (loss) from operations 2,544 1,958 (2,596) - 1,906
Total assets 5,591 2,463 16,818 (2,194) 22,678
Depreciation and amortization expense 436 12 771 629 1,848
Capital expenditures 800 134 357 - 1,291
1997:
Revenues 1,369 7,048 - 8,417
Income (loss) from operations 17 (7,064) - (7,047)
Total assets 2,642 7,728 (984) 9,386
Depreciation and amortization expense 73 2,070 - 2,143
Capital expenditures 284 357 - 641
</TABLE>
Financial information relating to the Company's operations by geographic
area was for the years ended December 31, 1998 and 1997 as follows (amounts
expressed in thousands):
<TABLE>
<CAPTION>
1998 1997
Revenues:
<S> <C> <C>
United States $26,009 $8,417
Mexico 7,921 -
Canada 58 -
------- ------
Total $33,988 $8,417
------- ------
Long-lived assets (excluding investments):
United States $15,719 $7,883
Mexico 1,704 -
------- ------
Total $17,423 $7,883
======= ======
</TABLE>
17. INVESTMENTS
During 1998, the Company reached an agreement to invest in ACTEL Integrated
Communications, Inc. ("ACTEL") of Mobile, Alabama. As of December 31, 1998,
the Company had invested $694,067, and from January 1, 1999 through March
22, 1999, had invested an additional $586,000. On March 10, 1999, the
Company and ACTEL entered into an Investment Agreement whereby, the Company
receives one share of Series A Convertible Preferred Stock for every dollar
invested. Each Series A Convertible Preferred Stock earns a 10% dividend and
may be converted to 1.46 shares of common stock at any time on or before
March 10, 2002 at the option of the Company.
F-35
<PAGE> 73
ACTEL, based in Mobile, Alabama, will provide local exchange communications
services as a facility-based carrier. ACTEL has received public service
approval to become a competitive local exchange carrier in both Louisiana
and Alabama and will begin to offer voice and data communications services
to medium and small businesses in April 1999. Initially, resale service will
commence in Mobile, Alabama and in New Orleans, Louisiana, through an
interconnect agreement with Bell South. An advanced Lucent AnyMedia(TM)
MultiService Module is being installed in Mobile. It will enable proprietary
retail services to be provided to the Mobile, Alabama market later this
spring. At that time ACTEL will own its local service lines, sell monthly
services and become a facility-based carrier providing proprietary voice and
data services to the targeted market of medium and small businesses.
During 1998, the Company reached an initial lending/investment agreement
with AcNET de C.V. ("AcNet") of Mexico. As of December 31, 1998, the Company
had invested $806,229, and from January 1, 1999 through March 22, 1999, had
invested an additional $403,000. The initial agreement in August 1998
provided for an option to purchase 49% of AcNet for $2 million. The option
was renewed beyond the original October 1998 expiration and revised in March
1999 to the following: the Company may lend up to $2 million to AcNet on a
10% note and convert the note to preferred stock that earns 20% of the
earnings of AcNet, as defined in the agreement. The preferred stock may be
redeemed by AcNet for 120% of its face value plus any accumulated dividends.
Additionally, the Company possesses an option to acquire 49% of the common
stock of AcNet in exchange for 450,000 shares of the Company's common stock
and the guarantee by the Company of certain debt of AcNet by March 30, 1999.
As of March 22, 1999, no amounts had been guaranteed by the Company. The
option extends through July 31, 1999.
AcNet provides internet services and network services to businesses,
governments and consumers in Mexico by authority of concessions provided by
the Mexican government. As of March 1999, AcNet provided internet services
to over 13,000 customers and network services to several of the major
corporations of Mexico generating annualized revenues of approximately $1.5
million.
18. SUBSEQUENT EVENT
During the first quarter of 1999, the Company received proceeds of
$1,500,000 from the issuance of promissory notes to related parties. The
notes bear interest at 14% and the accrued interest and principal are due on
November 30, 1999. Warrants to purchase 300,000 shares of the Company's
common stock were issued in relation to the promissory notes at an exercise
price of $3.25 per share.
* * * * *
F-36
<PAGE> 74
You should rely only on the information contained in this document or
other information we referred you to. We have not authorized anyone to provide
you with information that is different. This prospectus does not constitute an
offer to sell or the solicitation of an offer to buy any security other than the
shares of common stock offered by this prospectus, nor does it constitute an
offer to sell or a solicitation of an offer to buy shares of common stock in any
jurisdiction where such offer or solicitation would be unlawful. Neither the
delivery of this prospectus nor any sales made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of MCC since the date hereof.
TABLE OF CONTENTS
Page
Summary............................................
Risk Factors.......................................
Certain Market Information
and Dividend Policy................................
Use of Proceeds....................................
Business...........................................
Management's Discussion and Analysis of
Financial Condition and Results
of Operations......................................
Management.........................................
Certain Transactions...............................
Principal Shareholders.............................
Selling Shareholders...............................
Plan of Distribution...............................
Description of Capital Stock.......................
Legal Matters......................................
Experts............................................
Where You Can Find More Information................
Consolidated Financial Statements.................. F-1
[LOGO]
3,144,292 SHARES OF COMMON STOCK
-------------------------------
PROSPECTUS
-------------------------------
_______, 1999
<PAGE> 75
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Iowa Business Corporation Act (the "IBCA") authorizes
corporations to limit or eliminate the personal liability of directors to
corporations and their shareholders for monetary damages for breach of
directors' fiduciary duty of care. Our Restated Articles of Incorporation (the
"Articles") limit the liability of our directors to the Company or its
shareholders to the fullest extent permitted by the IBCA or any other applicable
laws presently or hereinafter in effect. Specifically, directors of the Company
will not be personally liable for or with respect to any acts or omissions in
the performance of his duties as a director of the Company except for a breach
of the director's duty of loyalty to the Company or its shareholders, for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, for a transaction in which the director derives an
improper personal benefit or for unlawful distributions.
The inclusion of this provision in the Articles may have the
effect of reducing the likelihood of derivative litigation against directors,
and may discourage or deter shareholders or management from bringing a lawsuit
against directors for breach of their duty of care, even though such an action,
if successful, might otherwise have benefited the Company and our shareholders.
The Articles also provide mandatory indemnification rights to any
officer or director of the Company to the full extent permitted by Iowa law or
any applicable laws presently or hereafter in effect.
Unless a corporation's articles of incorporation provide
otherwise, the IBCA requires a corporation to indemnify a director or officer
who was completely successful in the defense of any proceeding to which the
director or officer was a party because the director or officer is or was a
director or officer of the corporation and permits a director or officer to
apply for court-ordered indemnification if the director or officer is fairly and
reasonably entitled to indemnification in view of all of the relevant
circumstances. The Articles do not limit the foregoing indemnification rights of
the directors and officers of the Company. In addition, our By-Laws provide
that, to the fullest extent permitted by Iowa law, we may indemnify the officers
and directors.
We intend to maintain insurance for each director and officer of
the Company covering certain expenses, liability or losses he may incur that
arise by reason of his being a director or officer of the Company or subsidiary
company, whether or not we would have the power to indemnify such person against
such expenses, liability or loss under the Iowa General Corporation Law.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the offering are as follows:
<TABLE>
<CAPTION>
Item Amount
- ---- ------
<S> <C>
Securities and Exchange Commission Registration Fee................................. $ 2,905
Legal Fees and Expenses............................................................. 20,000
Accounting Fees and Expenses........................................................ 10,000
Miscellaneous Expenses.............................................................. 3,000
Total................................................................. $35,905
=======
</TABLE>
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<PAGE> 76
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
On the effective date of the Company's initial public offering, the
Company issued 822,221 shares of common stock in exchange for 22,450 shares of
its preferred stock and associated common stock warrants. The Company did not
receive any proceeds with respect to this exchange, and did not pay any fee or
commission with respect to the solicitation of offers to exchange. The Company
conducted the exchange as an offering exempt from registration under the
Securities Act of 1933, as amended (the "Act"), pursuant to section 3(a)(9) of
the Act.
Also in July 1996, the Company completed the first tranche of a bridge
financing as a private placement exempt from the registration requirements of
the Act pursuant to Rule 506 of Regulation D under the Act. The first tranche of
the bridge financing consisted of $400,000 aggregate principal amount of 12%
convertible promissory notes (the "Conversion Bridge Notes"). The Convertible
Bridge Notes were automatically converted into units of $5.00 per unit effective
upon the Company's initial public offering. The Convertible Bridge Notes were
sold to 11 purchasers. The Company paid commissions of $24,000 to two placement
agents in connection with the offering of the Convertible Bridge Notes, and the
Company received net proceeds of approximately $372,000. In August 1996, the
Company completed the second tranche of the bridge financing as a private
placement exempt from the registration requirements of the Act pursuant to Rule
506 of Regulation D under the Act. The second tranche of the bridge financing
consisted of the sale of a 13% promissory note in the principal amount of
$250,000 to one purchaser along with an associated warrant to purchase 41,667
units (the "Bridge Warrant"). The Bridge Warrant was exercisable at any time
after the completion of the offering until its expiration on August 5, 1998. The
exercise price of the Bridge Warrant was $6.00 per unit. The Company paid
commissions of $15,000 to two placement agents in connection with the offering
of the Note and the Bridge Warrant, and the Company received net proceeds of
approximately $232,000.
In January 1997, certain subsidiaries and affiliated leasing
partnerships of Berthel Fisher & Company ("Berthel") exercised warrants to
purchase an aggregate of 227,142 shares of common stock at a de minimis exercise
price. The shares of common stock were issued to Berthel in a private placement
exempt from the registration requirements of the Act pursuant to Section 4(2) of
the Act.
In January 1997, the Company issued a warrant to purchase up to 50,000
shares of the Company's common stock to Blalock & Company ("Blalock") with an
exercise price of $2.50 per share. The warrant was issued pursuant to a
consulting agreement dated December 20, 1996, between the Company and Blalock
providing for advisory services by Blalock to the Company. The Company has
assigned a fair value of $100,000 to the warrant. The warrant was issued in
reliance upon exemption from registration provided by section 4(2) of the Act.
In June 1997, certain affiliates of Berthel agreed to convert note
obligations with an aggregate principal amount of $1.7 million and a carrying
value to the Company of $1.3 million into 465,625 shares of the Company's common
stock. On December 31, 1997, the Company and Berthel agreed to rescind the note
conversion. In connection with this rescission, in January 1998, the Company
issued notes to Berthel which are identical in all material respects to the
notes originally canceled, Berthel delivered to the Company its certificates for
the 465,625 shares of the Company's common stock and the Company issued warrants
to Berthel exercisable to purchase up to 229,279 shares of the Company's common
stock at an exercise price of $1.12 per share. The Company issued the notes and
the warrants to Berthel pursuant to the exemption from the registration
requirements of the Act provided by Section 4(2) of the Act.
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<PAGE> 77
In September 1997, the Company commenced an offering of up to
$5,000,000 of its preferred stock in a private placement exempt from the
registration requirements of the Act pursuant to Rule 506 of Regulation D under
the Act. The Company paid commissions of up to 7% of the gross proceeds of the
offering to its placement agent. The Company had sold a total of 16,250 shares
of Preferred Stock in the offering and received gross cash proceeds of
$1,625,000, paid commissions of $64,750, paid other expenses of $23,250 and
received net proceeds of approximately $1,537,000 from the issuance and sale of
shares of the preferred stock pursuant to the offering.
In October 1997, the Company issued 300,000 shares of common stock to
the former shareholders of PIC Resources Corp. ("PICR") pursuant to the
Company's acquisition of PICR. The shares were issued in a private placement
exempt from the registration requirements of the Act pursuant to Section 4(2) of
the Act.
In February 1998, the Company issued 400,000 shares of common stock to
the former shareholders of Incomex, Inc. ("Incomex") pursuant to the Company's
acquisition of Incomex. The shares were issued in a private placement exempt
from the registration requirements of the Act pursuant to Section 4(2) of the
Act.
In February 1998, the Company agreed to issue 2,170 shares of its
Preferred Stock to Berthel in exchange for the prepayment of $180,000 in
commissions and the payment of $37,000 in commissions currently owed. This
transaction was completed and the shares were issued on June 19, 1998. The
issuance of the shares was made pursuant to the exemption from the registration
requirements of the Act provided by Section 4(2) of the Act.
In March 1998, the Company issued promissory notes with an aggregate
principal amount of $500,000 to five persons in a private placement exempt from
the registration requirements of the Act pursuant to Section 4(2) of the Act.
The notes bear interest at 14% and the principal and accrued interest are due on
March 5, 1999. Along with the notes, the Company also issued warrants to
purchase an aggregate of 500,000 shares of the Company's common stock at an
exercise price of $1.75 per share.
Also in March 1998, the Company issued warrants to purchase an
aggregate of 1,100,000 shares of the Company's common stock at an exercise price
of $1.4375 to Berthel in connection with $700,000 of lease financing and the
financing of certain capital leases provided to the Company by Berthel. The
Company issued the warrants to Berthel pursuant to the exemption from the
registration requirements of the Act provided by Section 4(2) of the Act.
Effective December 31, 1998, Berthel exercised these warrants to purchase an
aggregate of 1,100,000 shares of common stock at an exercise price of $1.30 per
share, resulting in total proceeds to the Company of $1,430,000. The shares of
common stock were issued to Berthel in a private placement exempt from the
registration requirements of the Act pursuant to Section 4(2) of the Act.
In April 1998, the Company issued a promissory note in the principal
amount of $5,000 and warrants to purchase 5,000 shares of common stock to one of
the Company's outside directors in lieu of the payment of director's fees and
issued a promissory note in the principal amount of $25,000 and warrants to
purchase 25,000 shares of the Company's common stock to a consultant in lieu of
payment of consultant fees. These notes and warrants have terms identical to the
notes and warrants sold in the offering described in the subsequent paragraph
and were issued in a private placement exempt from the registration requirements
of the Act pursuant to Rule 506 of Regulation D under the Act.
In April and May of 1998, the Company completed an offering of
$1,486,000 aggregate principal amount of promissory notes in a private placement
exempt from the registration requirements of the Act
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<PAGE> 78
pursuant to Rule 506 of Regulation D under the Act. The notes bear interest at
14% and the principal and accrued interest are due on March 31, 1999. Along with
the notes, the Company also issued warrants to purchase an aggregate of
1,486,000 shares of the Company's common stock at an exercise price of $1.75 per
share. The warrants expire on March 31, 2001. The Company paid commissions of
$96,880 to its placement agent and received net proceeds of approximately
$1,386,000 in the offering. In connection with the offering, the Company also
issued to its placement agent warrants to purchase 121,100 shares of common
stock with terms substantially similar to the warrants issued to investors in
the offering.
In May 1998, the Company issued 571,428 shares of common stock to the
former shareholders of Priority International Communications, Inc. ("PIC") as a
prepayment of $1,000,000 in principal due under notes issued by the Company in
October 1997 in connection with the acquisition by the Company of PIC. The
shares of common stock were issued pursuant to the exemption from the
registration requirements of the Act provided by Section 4(2) of the Act.
In September 1998, the Company issued promissory notes in the aggregate
principal amount of $370,000 in a private placement exempt from the registration
requirements of the Act pursuant to Section 4(2) of the Act. The notes bear
interest at 14% and the principal and accrued interest are due on November 1,
1999.
In December 1998, the Company issued 2,300,000 shares of common stock
to the former shareholders of PIC and PICR pursuant to the settlement of certain
earn-out provisions relating to the Company's acquisition of PIC and PICR. The
shares were issued in a private placement exempt from the registration
requirements of the Act, pursuant to Section 4(2) of the Act.
In December 1998, the Company issued 1,500,000 shares of common stock
to the former shareholders of Incomex pursuant to certain earn-out provisions of
the agreement with Incomex. The Company also issued notes in the aggregate
principal amount of $744,915 and warrants to purchase an aggregate of 155,384
shares of common stock to certain of the former shareholders of Incomex pursuant
to the settlement of certain earn-out provisions relating to the Company's
acquisition of Incomex. The notes bear interest at an annual rate of 14% and all
interest and principal on the Incomex notes are due on November 15, 1999. The
warrants may be exercised at any time between December 1998 and December 2003 to
purchase shares of common stock at an exercise price of $3.25 per share. The
shares of common stock, the notes and the warrants were issued in a private
placement exempt from the registration requirements of the Act pursuant to
Section 4(2) of the Act.
During the fourth quarter of 1998, the Company completed an offering of
notes and warrants to certain of its directors and executive officers and to a
limited number of outside investors. The notes bear interest at an annual rate
of 14% and all principal and all interest on the notes are due on November 30,
1999. The Company paid the purchasers of the notes an origination fee of 1% and
issued warrants to purchase 10,000 shares of common stock for each $50,000 in
principal amount of the notes. The warrants are exercisable at an exercise price
of $3.25 per share (although one outside investor received warrants to purchase
80,000 shares of common stock at an exercise price of $2.50 per share) and may
be exercised at any time on or before November 30, 2003. The Company issued
$3,420,000 aggregate principal amount of the notes and warrants to purchase
684,000 shares of common stock, and the Company received net proceeds of
$3,380,800. The notes and the warrants were issued in a private placement exempt
from the registration requirements of the Act pursuant to Section 4(2) of the
Act.
During the fourth quarter of 1998, the Company entered into an
agreement with a consultant to provide advisory services to the Company.
Pursuant to this agreement, the Company issued two
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<PAGE> 79
warrants to the consultant to purchase up to 10,000 shares of common stock each
at exercise prices of $3.60 per share and $3.00 per share, respectively. The
warrants may be exercised at any time between November 30, 1999 and November 30,
2003. The warrants were issued in a private placement exempt from the
registration requirements of the Act pursuant to Section 4(2) of the Act.
During the first quarter of 1999, the Company received proceeds of
$1,500,000 from the issuance of promissory notes to related parties. The notes
bear interest at 14% and the accrued interest and principal are due on November
30, 1999. Warrants to purchase 300,000 shares of the Company's common stock were
issued in relation to the promissory notes at an exercise price of $3.53 per
share. The warrants may be exercised at any time until December 31, 2003. The
warrants were issued in a private placement exempt from the registration
requirements of the Act pursuant to Section 4(2) of the Act.
In April 1999, the Company completed an offering of $1,625,000
aggregate principal amount of promissory notes to five of its directors and
executive officers in a private placement exempt from the registration
requirements of the Act pursuant to Section 4(2) of the Act. The notes bear
interest at 18% and the principal and accrued interest are due on November 30,
1999. The Company paid the purchasers of the notes an origination fee of 0.5%.
ITEM 27. EXHIBITS.
The following exhibits are filed as part of this registration
statement.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DOCUMENT DESCRIPTION
- -------------- --------------------
<S> <C>
3.1 Restated Articles of Incorporation of the Company. (1)
3.2 First Amendment to Restated Articles of Incorporation of the
Company. (2)
3.3 Second Amendment to Restated Articles of Incorporation of
the Company. (2)
3.4 Amended and Restated By-Laws of the Company. (3)
4.1 Form of Warrant Agreement between the Company and Firstar
Trust Company. (1)
4.2 Form of Redeemable Warrant. (1)
5 Opinion of Reinhart, Boerner, Van Deuren, Norris &
Rieselbach, s.c. (4)
10.1 AT&T Management Company Commission Agreement, dated as of
December 16, 1995, by and between the Company and AT&T
Communications, Inc. ("AT&T"). (1)(5)
</TABLE>
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<PAGE> 80
<TABLE>
<S> <C>
10.2 Amendment No. 1 to AT&T Management Company Commission
Agreement, dated as of January 16, 1996, by and between the
Company and AT&T. (1)
10.3 Amendment No. 2 to AT&T Management Company Commission
Agreement, dated as of January 16, 1996, by and between the
Company and AT&T. (1) (5)
10.4 Amendment No. 3 to AT&T Management Company Commission
Agreement, executed on December 13, 1996, by and between
AT&T and the Company. (6)
10.5 AT&T Management Company Commission Agreement,
effective as of January 16, 1998, by and between the
Company and AT&T. (5)(7)
10.6 Amendment to AT&T Management Company Commission Agreement,
effective as of October 15, 1998, by and between the Company
and AT&T. (8)
10.7 Stock Purchase Agreement, dated as of August 22, 1997, among
MCC Acquisition Corp., Priority International
Communications, Inc. and certain shareholders of Priority
International Communications, Inc. (9)
10.8 First Amendment to Stock Purchase Agreement, dated as of
October 31, 1997, among MCC Acquisition Corp., Priority
International Communications, Inc. and certain shareholders
of Priority International Communications, Inc. (9)
10.9 Second Amendment to Stock Purchase Agreement, dated as of
February 27, 1998, among MCC Acquisition Corp., Priority
International Communications, Inc. and certain shareholders
of Priority International Communications, Inc. (7)
10.10 Stock Purchase Agreement, dated as of August 22, 1997, among
MCC Acquisition Corp., PIC Resources Corp., the shareholders
of PIC Resources Corp. and ATN Communications Inc. (9)
10.11 First Amendment to Stock Purchase Agreement dated as of
October 31, 1997, among MCC Acquisition Corp., PIC Resources
Corp., the shareholders of PIC Resources Corp. and ATN
Communications Inc. (9)
</TABLE>
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<PAGE> 81
<TABLE>
<S> <C>
10.12 Second Amendment to Stock Purchase Agreement, dated as of
February 27, 1998, among MCC Acquisition Corp., PIC
Resources Corp., the shareholders of PIC Resources Corp. and
ATN Communications, Inc. (7)
10.13 Amended and Restated Short-Term Note dated February 27, 1998
issued by MCC Acquisition Corp. to Bonner B. Hardegree,
trustee for the benefit of Wayne Wright, and Bonner B.
Hardegree. (7)
10.14 Form of Long-Term Note. (9)
10.15 Agreement, dated as of May 21, 1998, among the
Company, Murdock Acquisition Corp., Priority
International Communications, Inc., PIC Resources
Corp., Wayne Wright, Bonner Hardegree and ATN
Communications, Inc. (10)
10.16 Earn-Out Settlement Agreement, dated as of December
7, 1998, among the Company, Murdock Acquisition
Corp., Priority International Communications, Inc.,
PIC Resources Corp., Wayne Wright, Bonner Hardegree
and ATN Communications, Inc. (8)
10.17 Stock Purchase Agreement, dated as of February 13, 1998,
among MCC Acquisition Corp., Incomex, Inc. and the
Shareholders of Incomex, Inc. (11)
10.18 Earn-Out Settlement Agreement, dated as of December 1, 1998,
among the Company, Murdock Acquisition Corp., Incomex, Inc.
and the Shareholders of Incomex, Inc. (9)
10.19 Murdock Communications Corporation 1993 Stock Option
Plan. (1)
10.20 Murdock Communications Corporation 1997 Stock Option Plan,
as amended. (8)
10.21 Amended and Restated Employment Agreement, dated as
of October 1, 1998, by and between the Company and
Guy O. Murdock. (7)
10.22 Employment Agreement, dated as of January 1, 1999, by and
between the Company and Colin P. Halford. (7)
</TABLE>
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<PAGE> 82
<TABLE>
<S> <C>
10.23 Amended and Restated Employment Agreement, dated as
of October 1, 1998, by and between the Company and
Thomas E. Chaplin. (7)
10.24 Employment Agreement, dated as of January 1, 1999, by and
between the Company and Bill R. Wharton. (7)
10.25 Employment Agreement, dated as of November 1, 1998, by and
among the Company, Priority International Communications,
Inc., PIC Resources Corp. and Bonner B. Hardegree. (7)
10.26 Employment Agreement, dated as of November 16, 1998, by and
between the Company and Paul C. Tunink. (7)
10.27 Form of Lease Agreement.
10.28 Note and Security Agreement, Note #079-21846-000,
dated as of October 28, 1997, by and among PIC
Resources, ATN Communications, Inc., Priority
International Communications, Inc. and Berthel
Fisher & Company Leasing, Inc.
21 Subsidiaries (8)
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Reinhart, Boerner, Van Deuren, Norris &
Rieselbach, s.c. (included in its opinion filed as Exhibit 5
hereto). (4)
24 Power of Attorney (included as part of the signature page
hereof).
</TABLE>
(1) Filed as an exhibit to the Company's registration statement on Form
SB-2 (File No. 333-05422C) and incorporated herein by reference.
(2) Filed as an exhibit to the Company's Quarterly Report on Form 10-QSB
for the quarter ended September 30, 1997 (File No. 000-21463) and
incorporated herein by reference.
(3) Filed as an exhibit to the Company's Quarterly Report on Form 10-QSB
for the quarter ended March 31, 1997 (File No. 000-21463) and
incorporated herein by reference.
(4) Opinion will be filed as an exhibit to an Amendment to this
registration statement.
(5) Portions of these exhibits were granted confidential treatment by the
Securities and Exchange Commission.
(6) Filed as an exhibit to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 1996 (File No. 000-21463) and incorporated
herein by reference.
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<PAGE> 83
(7) Filed as an exhibit to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 1997 (File No. 000-21463) and incorporated
herein by reference.
(8) Filed as an exhibit to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 1998 (File No. 000-21463) and incorporated
herein by reference.
(9) Filed as an exhibit to the Company's Current Report on Form 8-K (File
No. 000-21463) filed with the Securities and Exchange Commission on
November 7, 1997 and incorporated herein by reference.
(10) Filed as an exhibit to the Company's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 1998 (File No. 000-21463) and
incorporated herein by reference.
(11) Filed as an exhibit to the Company's Current Report on Form 8-K (File
No. 000-21463) filed with the Securities and Exchange Commission on
February 13, 1998 and incorporated herein by reference.
ITEM 28. UNDERTAKINGS.
The undersigned Registrant undertakes as follows:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended;
(b) To reflect in the prospectus any facts or events arisin
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(c) To include any additional or changed material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement; provided, however, that paragraphs 1(a) and (b) will not
apply if the information required to be included in a post effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or 16(b) of the Securities Exchange Act of 1934, as
amended, and which are incorporated by reference in this registration statement.
2. That, for the purposes of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4. To supplement the prospectus, after the end of the
subscription period, to include the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of
unsubscribed securities that the underwriters will purchase and the terms of any
later reoffering.
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<PAGE> 84
If the underwriters make any public offering of the securities on terms
different from those on the cover page of the prospectus, the Registrant will
file a post-effective amendment to state the terms of such offering.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, (the "Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been informed that in the opinion
of the Securities and Exchange Commission, such indemnification is against
public policy as expressed in the Act, and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 85
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form SB-2 and authorized this Registration
Statement to be signed on its behalf by the undersigned, in the City of Cedar
Rapids, State of Iowa, on the 10th day of May, 1999.
MURDOCK COMMUNICATIONS CORPORATION
By /s/ Thomas E. Chaplin
----------------------------
Thomas E. Chaplin
Chief Executive Officer
Date: May 10, 1999
Each person whose signature appears below hereby appoints Guy O.
Murdock and Thomas E. Chaplin, and each of them individually, his true and
lawful attorney-in-fact, with power to act with or without the other and with
full power of substitution and resubstitution, in any and all capacities, to
sign any or all amendments to the Form SB-2 and file the same with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Guy O. Murdock Chairman of the Board of Directors May 10, 1999
- ------------------------------------ (Principal Executive Officer)
Guy O. Murdock
/s/ Thomas E. Chaplin Chief Executive Officer and Director May 10, 1999
- ------------------------------------ (Principal Financial Officer and Principal
Thomas E. Chaplin Accounting Officer)
/s/ Wayne Wright Vice Chairman of the Board of Directors May 10, 1999
- ------------------------------------
Wayne Wright
/s/ Colin P. Halford President and Director May 10, 1999
- ------------------------------------
Colin P. Halford
/s/ John C. Poss Director May 10, 1999
- ------------------------------------
John C. Poss
/s/ Steven R. Ehlert Director May 10, 1999
- ------------------------------------
Steven R. Ehlert
/s/ Larry A. Erickson Director May 10, 1999
- ------------------------------------
Larry A. Erickson
</TABLE>
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<PAGE> 1
EXHIBIT 10.27
LEASE AGREEMENT
LEASE #074-18000-0-18
AGREEMENT made December 3, 1996, by and between Berthel Fisher &
Company Leasing, Inc., agent for Telecommunications Income Fund IX, L.P.
("Lessor"), located at 425 Second Street SE, Suite 600, Cedar Rapids, IA 52401,
and Murdock Communications Corporation ("Lessee"), located at 1112 29th Avenue
SW, Cedar Rapids, IA 52404.
WHEREAS, Lessee desires to lease from Lessor the telephone equipment
specified on Schedule "A" ("Equipment") and Lessor desires to lease the
Equipment to Lessee.
THEREFORE, Lessor leases to Lessee, and Lessee leases from Lessor, the
Equipment (and such other equipment as the parties may agree upon in the
future), subject to and upon the terms and conditions appearing herein.
1. TERM; RENTAL PAYMENTS; SECURITY DEPOSIT. (a) TERM. The term of the
Lease (the "Term") shall commence on December 3, 1996, and shall terminate after
the expiration of Five years from such date.
(b) RENTAL PAYMENTS. Total rental for the Equipment shall be
$415,048.20, payable in 60 monthly installments of $6,917.47 each, plus
applicable sales tax, beginning on the first day of the Term, with payments due
on the 30th day of each successive month. Lessor acknowledges receipt of the
first rental payment.
(c) LATE PAYMENTS. In addition to Lessor's rights under this Lease as
to Defaults, Lessee agrees to pay Lessor an amount equal to five percent (5%)
(or the maximum amount provided by law if five percent (5%) is in excess of the
amount Lessor is entitled to receive under any applicable law) of any rental
payment not received by Lessor by the end of the tenth (10th) day following the
due date of such rental payment.
(d) PLACE OF PAYMENT. All payments called for under this Lease to be
made to Lessor (or any assignee of Lessor pursuant to Section 12 (f)) shall be
made as designated by Lessor or assignee.
(e) LEASE NONCANCELLABLE; PAYMENTS TO BE NET. Lessee agrees that all
rental payments or other sums payable by Lessee hereunder shall be the
unconditional obligation of Lessee and shall be made without abatement,
reduction or setoff of any nature, including any thereof arising out of any
present or future claim that Lessee may have against Lessor or any of Lessor's
assignees or the manufacturer or vendor of the Equipment. This lease shall not
be cancelable or terminable by Lessee prior to the end of the Term except as
herein expressly provided.
<PAGE> 2
(f) SECURITY DEPOSIT. Lessor acknowledges the receipt of $6,917.47 from
Lessee as security for the faithful performance by Lessee of all of the terms,
covenants and conditions of this Lease. Lessor agrees to hold said deposit until
the expiration of the Term provided herein and agrees to repay said deposit to
the Lessee if the Lessee has fully complied with all of the terms, covenants and
conditions of this Lease. The Lessor, however, may apply the security deposit,
or such part thereof as may be necessary, toward the payment of all rents,
obligations, and other charges due hereunder, or any expenses or damages
incurred by the Lessor on account of the Lessee's breach of any of Lessee's
obligations contained in this Agreement. The security deposit shall not be
construed as pre-payment of the last month's rent.
2. TAXES; INDEMNITY. Lessee agrees to pay, promptly when due, all license
fees and assessments, and all excise, income, and other taxes or charges
(including any interest and penalties), now or hereafter imposed by any
governmental body or agency upon any Equipment or the purchase, ownership,
possession, leasing, operation, use, or dispositions thereof hereunder, or the
rentals or other payments hereunder, (excluding taxes on or measured by the net
income of Lessor) and prepare and file promptly with the appropriate offices any
and all tax and other similar returns required to be filed with respect thereto
(sending copies thereof to Lessor upon request). Lessee further agrees to assume
all risks of liability arising from or pertaining to the purchase, delivery,
ownership, possession, leasing, operation, use, condition, transportation or
disposition of any Equipment or the return of any Equipment to Lessor and to
indemnify and save Lessor, its servants and agents, harmless from and against,
and to defend them against, any and all claims, costs, expenses, attorneys fees,
fines, damages and liabilities, arising therefrom or pertaining thereto
(including, without limitation, any thereof arising out of injury to persons or
property). Any amounts required to be paid by Lessee under this, Section 2,
which Lessee fails to pay, may be paid by Lessor and shall, at Lessor's option,
become immediately due from Lessee to Lessor. Lessee's obligations contained in
this, Section 2, shall survive the termination of this Agreement.
3. ACCEPTANCE. Lessee hereby accepts the Equipment as is and where
currently located.
4. LESSOR'S PROTECTION. (a) INSURANCE. Lessee hereby warrants and agrees
that Lessee does not carry public liability insurance for personal injury and
property damage, but is self-insured. Lessee further warrants and agrees that it
will provide proof of any fund or assets which Lessee has established or set
aside for the payment of any losses sustained with regard to the Equipment.
Lessee continues to bear the entire risk of loss for destruction of or damage to
the Equipment as set forth in the Lease and Lessee's obligation to indemnify
Lessor continues as set forth in the lease. If Lessee shall obtain insurance
coverage on the Equipment from an outside insurance company the Lessee shall
name Lessor as Loss Payee
2
<PAGE> 3
under the property damage provisions and Additional Named Insured under the
liability provisions where applicable, and provide evidence of this insurance to
Lessor.
(b) RISK OF LOSS. The Equipment, until returned to Lessor, shall be
held at all times at the sole risk of Lessee for injury, damages (including
damage to third parties and their property), loss, destruction, theft,
expropriation, or requisition (as to either title or use). In case the Equipment
or any of it shall be destroyed, lost, stolen, damaged beyond repair, or
permanently rendered unfit for normal use for any reason whatsoever, or is
expropriated or requisitioned, before return to Lessor, Lessee agrees promptly
to notify Lessor and within thirty (30) days of such occurrence, replace such
Equipment with similar Equipment acceptable to Lessor, in which event this Lease
shall continue unabated with respect to such Equipment. If Lessee chooses not to
replace the Equipment or fails to replace such Equipment, Lessee shall pay
Lessor on demand the unpaid rentals hereunder for the balance of the entire
original term allocable to such Equipment, as reimbursement to Lessor for such
occurrence. Payment of the amount determined pursuant to this paragraph shall
relieve Lessee from any further liability with respect to the Equipment involved
except for any taxes and indemnifications which may be required.
5. EQUIPMENT.
(a) IDENTIFICATION. The Equipment shall be as identified and listed on
Schedule "A", which shall be attached to and made a part hereof.
(b) TITLE; PERSONAL PROPERTY; ENCUMBRANCES; LOCATION. Lessee covenants
that the ownership of the Equipment is and at all times shall remain with Lessor
and that the Equipment is and shall remain personal property and shall not be
permanently attached to any realty so that it becomes a fixture; and that it
shall be installed and used at its current location or at locations set forth in
Site Leases approved by Lessor and that it shall not be removed therefrom
without the consent of Lessor. Lessor agrees to give its consent if Lessee
provides Lessor with an acceptable replacement location agreement which will
then become a Site Lease. Further, Lessee shall not sell, secrete, mortgage,
assign, transfer, lease, sublet, loan, part with possession of, or encumber the
Equipment, or permit any liens or charges to become effective thereon or permit
or attempt to do any of the acts aforesaid. Lessee agrees, at Lessee's own
expense, to take such action as may be necessary (1) to remove any such
encumbrance, lien or charge and (2) to prevent any third party from acquiring
any other interest in any Equipment (including, without limitation, by reason of
such Equipment being deemed to be a fixture or a part of any realty).
Upon request, Lessee shall, at its expense, affix and maintain on the
Equipment, a sticker provided by Lessor indicating Lessor's
3
<PAGE> 4
ownership thereof, provided such sticker does not unreasonably detract from the
appearance of the Equipment.
(c) MAINTENANCE; ACCESSIONS; INSPECTION; ALTERATIONS. Lessee agrees at
Lessee's own expense, to take good care of the Equipment and to make all repairs
and replacements necessary to maintain, preserve, and keep the Equipment in good
order and condition. All replacements or substitutions of the parts of, or in,
any of the Equipment shall constitute accessions thereto and shall become part
of the Equipment owned by Lessor. Lessee shall make no material alterations in
the Equipment without the prior written consent of Lessor. Lessee will permit
the Equipment to be operated and repaired only by qualified personnel.
Upon Lessor's request, Lessee will permit Lessor to have access to the
Equipment at all reasonable times for the purpose of inspection and examination.
Lessee agrees to pay not more than Five Hundred Dollars ($500.00) each year in
nonaccountable expenses incurred by Lessor for the purpose of inspecting the
leased Equipment and conducting Equipment and records audits.
(d) USE OF EQUIPMENT. Lessee shall be entitled to the right to
possession and control of the Equipment and the use thereof during the Term of
this Lease, so long as Lessee is not in default of this Agreement. Lessee will
comply with all laws, regulations, and ordinances, and all applicable
requirements of the manufacturer of the Equipment, applicable to the physical
possession, operation, condition, use and maintenance of the Equipment. Lessee
agrees to obtain all permits and licenses necessary for the operation of the
Equipment.
(e) DENIAL OF WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF, OR AS TO THE
QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT DELIVERED TO
LESSEE HEREUNDER, AND LESSOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS OF
THE EQUIPMENT FOR ANY PARTICULAR PURPOSE OR AS TO ANY OTHER MATTER. IT BEING
AGREED THAT ALL SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY
LESSEE, AND THE BENEFITS OF ANY SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO
BE BORNE BY LESSEE, AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES OF LESSOR
ARE HEREBY WAIVED BY LESSEE. LESSOR WARRANTS THAT IT HAS TITLE TO SUCH
EQUIPMENT. LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT ON THE BASIS
OF ITS OWN JUDGEMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR
REPRESENTATIONS MADE BY LESSOR. NOTWITHSTANDING ANY FEES WHICH MAY BE PAID BY
LESSOR TO ITS VENDOR OR ANY AGENT OF VENDOR, LESSEE UNDERSTANDS AND AGREES THAT
NEITHER THE VENDOR NOR ANY AGENT OF THE VENDOR IS AN AGENT OF LESSOR OR IS
AUTHORIZED TO WAIVE OR ALTER ANY TERMS OR CONDITIONS OF THIS LEASE, AND NO
REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE VENDOR SHALL IN
ANY WAY AFFECT LESSEE'S DUTY TO PERFORM ITS OBLIGATIONS AS SET FORTH IN THIS
LEASE OR ANY SUCH SCHEDULE. IN NO
4
<PAGE> 5
EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES.
6. DEFAULT.
(a) EVENTS OF DEFAULT. Lessee shall be in default of this
Agreement if:
(1) Lessee fails to pay any installment of rent or other sums
payable hereunder within ten (10) days after its due date; or
(2) Lessee shall be in default in the observance or
performance of any other covenant, agreement, or provision in
this Lease and such default shall continue for a period of
thirty (30) days after written notice of such default; or
(3) Lessee shall be in material default in the observance or
performance of any covenant in any Site Lease (Location Lease
Agreement) pursuant to which Equipment has been installed and
operated, including but not limited to the payment of
commissions to the site owner or owner of the premises where
the equipment is located; or
(4) Lessee shall be delinquent on telephone bills relating to
the use of the Equipment; or
(5) A Site Lease is no longer a valid agreement between Lessee
and the owner of the premises where the Equipment is located
and Lessee has not provided a reasonable replacement Site
Lease within thirty (30) days; or
(6) Lessee shall dissolve or become insolvent (however
evidenced) or bankrupt, commit any act of bankruptcy, make an
assignment for the benefit of creditors, suspend the
transaction of its usual business or consent to the
appointment of a trustee or receiver, or a trustee or a
receiver shall be appointed for Lessee or for a substantial
part of its property, or bankruptcy, reorganization,
insolvency, or similar proceedings shall be instituted by or
against Lessee; or
(7) An order, judgement, or decree be entered against Lessee
by a court of competent jurisdiction and such order, judgement
or decree shall continue unpaid or unsatisfied and in effect
for any period of twenty (20) consecutive days without a stay
of execution, or any execution or writ or process shall be
issued in connection with any action or proceedings against
Lessee or its property whereby the Equipment or any
substantial part of Lessee's property may be taken or
restrained; or
5
<PAGE> 6
(8) Lessee materially defaults in the performance of any
obligation or in the payment of any sum due to Lessor under
any other contract, agreement, arrangement, or understanding,
and such default continues for thirty (30) days after written
notice; or
(9) any indebtedness of Lessee for borrowed money becomes due
and payable by acceleration of maturity thereof due to an
event of default;
(b) NOTICE; RIGHT TO CURE DEFAULT. If Lessee is in default
pursuant to 6(a)(1) above, Lessee shall, except as provided below, be entitled
to written notice of such default. Lessee shall have five (5) days after any
such notice to cure such default, and if Lessee does not cure such default,
Lessor may proceed as provided in (c) below. Lessee is entitled to only two (2)
such notices and rights to cure during any consecutive twelve (12) month period.
If Lessee has already received two (2) such notices within a consecutive twelve
(12) month period, and during such period, Lessee again defaults pursuant to
6(a)(1), Lessor may proceed without notice to Lessee of right to cure under this
paragraph.
(c) REMEDIES. If Lessee is in default, Lessor may, by written
notice to Lessee:
(1) immediately terminate this Lease and Lessee's rights
thereunder; and/or
(2) declare immediately due and payable all rental
installments and other sums, payable under the lease forthwith
due and payable; and/or
(3) proceed by appropriate court action or actions either at
law or in equity, to enforce performance by Lessee of the
applicable covenants of this Lease, or to recover damages for
the breach thereof; and/or
(4) without necessity of process or other legal action, enter
onto the premises where any or all of the Equipment may then
be located and take possession of any or all of the Equipment,
with force, if necessary, without liability to Lessor or any
other person arising out of taking of such action.
(d) ASSUMPTION OF AGREEMENTS. In addition to the foregoing, if
Lessee is in default, Lessor may assume ownership for all purposes of all Site
Leases pursuant to which Lessee has installed and operated Equipment under this
Lease, including assumption of Lessee's obligations under such agreements, and
be entitled to receive as Lessor's own property all revenues, rents, profits,
income and other benefits derived from said agreements. Lessor shall also have
the right to endorse the name of Lessee on any
6
<PAGE> 7
checks, notes, or any other instruments for the payment of money, to deposit the
same in bank accounts, in either Lessor's own name or in the name of Lessee, to
institute, prosecute, settle or compromise any summary or legal proceedings for
the recovery of any of the gross receipts from the operation of such Equipment,
and to initiate, prosecute, settle or compromise any other proceedings for the
protection of the Equipment, for the recovery of any damages done to the
Equipment, or to defend any legal proceedings brought against Lessee arising out
of the operations of the Equipment. Lessee agrees to reimburse all Lessor's
expenses in either keeping current or curing any defaults under the Site Leases.
(e) NON-REPLACEMENT OF SITE LEASE. In the event of a default under
Section 6(a)(5), Lessee grants to Lessor a security interest in all agreements,
which are not subject to this Lease, between Lessee and the owners of premises
where equipment similar to Equipment is located.
(f) CONTINUED LIABILITY. In addition, if Lessee is in default,
Lessee shall continue to be liable for all indemnities under this Lease and for
all legal fees and other costs and expenses resulting from the foregoing
defaults or the exercise of Lessor's remedies including placing any Equipment in
the condition required by Section 5(c). No remedy referred to in this Section is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or elsewhere in this Agreement or otherwise
available to Lessor or at law or in equity. Lessor shall be entitled to take or
retain, by way of offset against any or all amounts due and owing under this
Lease, any assets, tangible or intangible, of Lessee which may then be in the
possession of Lessor, its correspondents or agents, wheresoever situated.
(g) PAYMENT OF FEES AND COSTS. Lessee will pay Lessor a reasonable
sum for attorneys fees and all costs and expenses incurred by Lessor in the
enforcement of any right or remedy hereunder. If Lessee is required to enforce
the terms of this Agreement against Lessor and is the prevailing party in any
action under this Agreement, Lessor shall reimburse Lessee for all costs and
expenses, including reasonable attorneys fees, incurred by Lessee in such
actions.
7. SECURITY INTEREST; ASSIGNMENT. Lessee hereby grants to Lessor a
security interest in (a) all of Lessee's contract rights in the Site Leases
pursuant to which Lessee has or will install and operate Equipment, whether now
owned or hereafter acquired, (b) all of Lessee's rights to receipts pursuant to
said Site Leases, and (c) the proceeds, products, additions, replacements,
substitutions, and extensions of said Site Leases. Lessee agrees to prepare,
execute and file such security agreements, financing statements, and other
documents as Lessor may reasonably require in order to evidence and perfect said
security interests.
7
<PAGE> 8
Upon the termination of this Lease, if Lessee has then performed all of
its obligations under this Lease, said Site Leases shall automatically be
reassigned to Lessee. Lessor shall, upon the request of Lessee, sign such
documents of assignment as Lessee may reasonably request.
8. WARRANTIES AND OBLIGATIONS OF LESSEE. In addition to the other
obligations and warranties of Lessee set forth elsewhere in this Agreement,
Lessee agrees and warrants as follows:
(a) Lessee is not in default with respect to any Site Leases.
(b) Lessee has the authority to execute this Agreement.
(c) All Site Leases pursuant to which Equipment has been installed and
operated are assignable.
(d) Lessee shall provide the Lessor, at its address shown above, all
quarterly reports of Lessee's financial condition and annual financial reports
reviewed by an independent certified public accountant.
(e) Lessee shall provide copies of telephone company bills for each
site, to verify the status of each site, prior to the execution of this Lease
and annually thereafter, or more often upon request of Lessor.
9. OPTION TO PURCHASE EQUIPMENT. If Lessee is not in default of any
obligations set forth in this Agreement and/or if Lessee has made all payments
as required under the Lease, Lessee shall have the option to purchase all (not
part) of the Equipment at the end of the Term by payment of One no/100 ($1.00)
Dollar. The option must be exercised by delivery of a written notice to Lessor
at least thirty (30) days prior to the end of the Term. Upon payment of the
option price, Lessor shall deliver to Lessee a Bill of Sale sufficient to
transfer title to the Equipment to Lessee, free and clear of all encumbrances.
10. JURISDICTION AND VENUE. THIS LEASE SHALL BE BINDING AND EFFECTIVE WHEN
ACCEPTED BY AN OFFICER OF LESSOR AT LESSOR'S HOME OFFICE, AND SHALL BE DEEMED TO
HAVE BEEN MADE IN CEDAR RAPIDS, LINN COUNTY, IOWA. EXCEPT FOR LOCAL FILING
REQUIREMENTS, THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF IOWA. LESSEE KNOWINGLY AND VOLUNTARILY CONSENTS TO BE
SUBJECT TO THE JURISDICTION OF THE STATE OR FEDERAL COURTS SITTING IN CEDAR
RAPIDS, LINN COUNTY, IOWA FOR PURPOSES OF ADJUDICATING ANY RIGHTS AND
LIABILITIES OF THE PARTIES PURSUANT TO THIS LEASE, WITH VENUE TO BE IN LINN
COUNTY, IOWA. LESSEE WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS.
11. Lessee waives trial by jury on any issues pertaining to the rights and
liabilities of the parties to this Lease or assigns.
8
<PAGE> 9
12. MISCELLANEOUS. (a) PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. In
the event that Lessee shall fail to duly and promptly perform any of its
obligations under the provisions of this Lease, including, without limitation,
any obligations which Lessee may have with respect to Site Leases, Lessor may at
its option, immediately or at any time thereafter perform the same for the
account of Lessee without thereby waiving such default, and any amount paid or
expense or liability incurred by Lessor in such performance, together with
interest at the rate of twelve percent (12%) per annum thereon, but not in
excess of the amount permitted by any applicable law, until paid by Lessee to
Lessor, shall be payable by Lessee upon demand as additional rent for the
Equipment.
(b) NOTICES; NO WAIVER; TIME; ENTIRE AGREEMENT; SEVERABILITY. Any
notices to be given under this Lease shall be effective at the end of the third
day following the mailing thereof, via certified mail, return receipt requested,
by facsimile, or by recognized commercial carrier, to the other party at the
address set out herein, or such other address as such party may have specified
by written notice. No failure on the part of Lessor to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by Lessor of any right hereunder preclude any other
further exercise thereof or the exercise of any other right. Time is of the
essence of this Lease. This Lease represents the entire agreement between Lessor
and Lessee as to the Equipment and may not be altered, amended, changed, or
terminated without an agreement, in writing, signed by a responsible
representative of Lessor. Any provision of this Lease which is invalid under the
law of any state shall, as to such state, be ineffective to the extent of such
prohibition in such state only, without invalidating the remaining provisions of
this Lease in such state.
(c) FURTHER ASSURANCE. Lessee will promptly execute and deliver to
Lessor (or any assignee of Lessor pursuant to Section 12(f)) such further
documents and take such further action as Lessor or such assignee may request in
order to more effectively carry out the intent and purpose hereof and to fully
protect Lessor's, or any such assignee's, interest hereunder in accordance with
the Uniform Commercial Code or other applicable law, including without
limitation, the filing of financing and continuation statements.
Lessee hereby authorizes Lessor to effect any such filing as aforesaid
(including the filing of any such financing or continuation statements without
the signature of Lessee).
(d) DEFINITION OF "LEASE". "Lease" as used herein, shall be deemed to
refer to this Lease and any and all Schedules now or hereafter executed pursuant
hereto.
(e) DEFINITION OF "SITE LEASE". The term "Site Lease" as used herein
shall refer to any agreement between Lessee and a
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<PAGE> 10
customer of Lessee pursuant to which Lessee supplies, maintains and services
Equipment.
(f) ASSIGNMENT. Lessee shall not assign this Lease or any interest
therein, or sublease any Equipment (except pursuant to Site Leases now in
existence), or part with possession of any Equipment, without the prior written
consent of Lessor. The foregoing shall not prohibit Lessee from fulfilling its
obligations with respect to Site Leases. Lessor's rights, title and interest in
and to this Lease and the Equipment may be transferred and assigned by Lessor
without notice and Lessor's assignee shall have all the rights, powers,
privileges, and remedies of Lessor hereunder. Except to the extent any such
assignee otherwise agrees in writing, Lessee (if notified of such assignment)
shall not be entitled to terminate or amend this Lease without the written
consent of such assignee.
(g) RETURN OF EQUIPMENT. If the Equipment is not purchased by Lessee
pursuant to paragraph 9 herein, Lessee shall, at its own cost and expenses, at
the end of the Term of this Lease, store the Equipment for the benefit of Lessor
in a proper manner at one central location. The Equipment shall be in good
operating condition as required by Section 5(c). All expenses, except reasonable
storage expenses, shall be paid by Lessee.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf the day and year above indicated.
LESSEE: Murdock Communications Corporation
BY:
---------------------------------
TITLE:
------------------------------
LESSOR: Berthel Fisher & Company Leasing, Inc.,
agent for Telecommunications Income Fund IX, L.P.
BY:
---------------------------------
TITLE:
------------------------------
In order to induce Berthel Fisher & Company Leasing, Inc., agent for
Telecommunications Income Fund IX, L.P. to execute this Lease, this Lease is
guaranteed in full by:
---------------------------------
Guy Murdock
10
<PAGE> 11
SCHEDULE "A"
Schedule attached to and made a part of that Lease Agreement and Assignment of
Site Lease and Security Agreement dated the 3rd day of December, 1996, between
the undersigned Lessee and Berthel Fisher & Company Leasing, Inc., agent for
Telecommunications Income Fund IX, L.P.
10 Pay telephones, attachments, and enclosures located as specified and the Site
Leases identified below:
<TABLE>
<CAPTION>
Quantity Site Lessee Address
- -------- ----------- -------
<S> <C> <C>
1 Wilson Hotel Management Co, Inc.
---------------------------
---------------------------
</TABLE>
Equipment Installed at each of the following locations with each location having
the following equipment:
<TABLE>
<CAPTION>
<S> <C>
Wilson Inn Baton Rouge
3045 Valley Creek Rd., Baton Rouge, LA 70808
504-923-3377
Wilson Inn Bunsen
9802 Bunsen Way, Louisville, KY 40299
502-499-0000 PABX includes:
1: Mitel SX200 (refurbished by Mitel)
Wilson Inn Jackson 12 Trunks
310 Greymont Avenue, Jackson, MS 39202 120 Extensions (or more as needed per hotel)
601-949-4466 Software Generic 217
NANP Ready Software
Wilson Inn Jacksonville UART Module (RMATs)
4580 Collins Road, Orange Park, FL 32073 Modem 14,400 US Robotics
904-264-4466 UPS 1250
Surge suppression 12 trunks
Wilson Inn Jonesboro Digital Voice Announcer (Auto wake up message)
2911 Gilmore Drive, Jonesboro, AR 72401
501-972-9000 Telephone Call Accounting
Xiox Prophet H-3 with printer
Wilson Inn Kemmons UPS and remote Maintenance modem
3209 Kemmons Drive, Louisville, KY 40218
502-473-0000 Lodgistix Interface:
Software and Hardware including server PC
Wilson Inn Lexington
2400 Buena Vista Drive, Lexington, KY 40505
606-293-6113
Wilson Inn Little Rock
4301 East Roosevelt, Little Rock, AR 72201
5O1-376-2466
Wilson Inn Nashville
600 Ermac Drive, Nashville, TN 37214
615-889-4466
Holiday Inn Express
1251 Shiloh Drive, Fayetteville, AR 72701
501-444-6006
</TABLE>
This schedule is hereby verified as correct by the undersigned Lessee, who
acknowledges receipt thereof.
Lessee: Murdock Communications Corporation
By:__________________________________________, its _____________________________
<PAGE> 1
EXHIBIT 10.28
NOTE AND SECURITY AGREEMENT
[Corporate Debtor with Individual Guarantors]
Note #079-21846-000
$1,000,000.00 Date: October 28, 1997
This Note and Security Agreement is entered into by, and among PIC
Resources, a Texas corporation and ATN Communications, Inc., a Delaware
corporation, ("Debtors"), Priority International Communications, Inc.
("Guarantor"), and Berthel Fisher & Company Leasing, Inc., an Iowa corporation,
100 Second Street SE, Cedar Rapids, Iowa ("Lender").
RECITALS
A. Debtor has requested that Lender provide Debtor with a working
capital loan.
B. The Guarantor derives benefit from Debtor's operations.
C. Debtor and the Guarantor each individually perceive
substantial business advantage from the transactions contemplated by this Note
and Security Agreement;
D. Lender has, as a condition to making the Loan to Debtor
required that Debtor and the Guarantor each participate and that the parties
execute and deliver this Note and Security Agreement.
The parties agree:
1. Definitions.
"Equipment" means certain equipment specified on Schedule A attached
hereto.
"Obligations" shall mean (a) the unpaid principal amount of, and
accrued interest on, the loan to Debtor evidenced by this Note and Security
Agreement and (b) all other indebtedness, obligations, and liabilities of Debtor
to Lender, now existing or hereafter incurred under, arising out of, or in
connection with this Note and Security Agreement, whether for principal
interest, fees, expenses or otherwise.
2. Payments. Debtor promises to pay to the order of Lender or its
assignee the principal sum of One Million Dollars ($1,000,000.00) with interest
at the rate of fourteen and one half percent (14.5%) per annum on the unpaid
balance remaining from time to time. The unpaid is based upon a 360 day year.
The principal and interest shall be paid in 60 equal monthly installments of
$23,528.28 beginning December 1, 1997 and each month thereafter for the
remaining term of the Note. All accrued interest and principal shall be due and
payable on November 1, 2002.
Debtor acknowledges and agrees that (i) all costs, expenses and
liabilities in connection with its operations shall be borne by Debtor, (ii)
Debtor's obligation to pay Lender all amounts due is absolute and unconditional,
and (iii) Debtor shall not be entitled to any abatement, reduction, set-off, or
counterclaim.
<PAGE> 2
If the payment is not received by Lender within ten (10) days of the
due date, Debtor agrees to pay Lender an amount equal to five percent (5%) (or
the maximum amount provided by law if five percent is in excess of the amount
Lender is entitled to receive under and applicable law) of the monthly payment
amount.
All payments called for under this Note and Security Agreement to be
made to Lender shall be made as designated by Lender or Lender's assignee.
Each such payment shall be applied first to interest due on the unpaid
principal and the remainder in reduction of the principal.
It is agreed that in no event and under no circumstances shall any
amount paid by the Debtor to Lender exceed the highest lawful rate permissible,
under applicable law. If in any circumstances whatsoever, it is determined that
performance under this Note and Security Agreement shall result in payment of
interest in excess of that allowed by applicable law, then such excess interest
collected shall not be applied to the payment of interest and interest shall be
at the highest rate allowed by applicable law.
In the event of default and acceleration or in the event Debtor prepays
the Obligations, the amount due upon payment after default or upon prepayment is
all late charges and unpaid interest plus unpaid principal plus a three percent
fee on the amount of unpaid principal.
3. Security Interest. Debtor grants to Lender a security interest
in the following described collateral (collectively the "Collateral") to secure
the Obligations.
(a) All Equipment, attachments and enclosures located as
specified on Schedule A attached hereto.
(b) All additions, substitutions, repairs, replacements,
accessories, accessions, parts and equipment now or hereafter affixed to the
Equipment.
(c) The proceeds of all insurance polices covering the
Collateral and all proceeds of the Collateral.
(d) All accounts, instruments, documents, chattel paper,
general intangibles and contract rights, now owned or hereafter acquired.
4. Expenses. Debtor, upon demand, shall pay to Lender all
expenses, including, but not limited to, reasonable attorney's fees and legal
expenses incurred by Lender in seeking to collect the Obligations or to defend
or enforce any of Lender's rights in the Collateral. Such amounts shall be an
Obligation under this Note and Security Agreement and if not paid on demand
shall bear interest at a default rate of 1 1/2 times the rate specified in
paragraph 2.
5. Representations, Warranties and Covenants. Debtor and
Guarantors represent, warrant and agree (which shall survive until the
Obligations are paid in full):
(a) Corporate Authority. Debtor is duly organized and existing
under the laws of the state of its incorporation, is qualified and in good
standing in all states in which it is doing business, and the execution and
performance of this Note and Security Agreement are within the corporate powers,
have been duly authorized and are not in contravention of any
2
<PAGE> 3
law or Debtor's charter or any agreement or undertaking of which Debtor is party
or by which it is bound.
(b) Title to Collateral. Debtor is the owner of the Collateral
free and clear of any and all adverse liens, security interest, claims,
encumbrances and the like and has full authority to use same as Collateral.
Debtor will defend the Collateral against all other persons who, at any time,
may claim an interest in it.
(c) Outstanding Security Interests. Debtor warrants that there
are no outstanding security interests in the Collateral.
(d) Negative Pledge. Except for the security interests created
hereunder, Debtor agrees that during the term of this Note and Security
Agreement and as long as any Obligations are outstanding, Debtor will not grant
a security interest in the Collateral to any other person.
(e) Adverse Lien. During the term of this Agreement, Debtor
will keep the Collateral from any and all adverse liens or encumbrances.
(f) Sale of Collateral. Debtor will not sell, offer for sale,
transfer or dispose of the Collateral or any interest in the Collateral without
the prior written consent of Lender or Lender's assignee.
(g) Unlawful Uses of Collateral. Debtor will not use or permit
any person to use the Collateral in a manner prohibited by law, in violation of
any insurance policy or in any manner inconsistent with Lender's security
interest.
(h) Care of Collateral. Debtor agrees to maintain the
Collateral in good order and repair at all times and will not waste or destroy
the Collateral or any part of it. Debtor shall make no material alterations in
the Equipment without the prior written consent of Lender or Lender's assignee.
(i) Taxes. If Debtor fails to pay any tax or assessment
relating to the Collateral as required when due, Lender may, at, its option, pay
or discharge same, although it is not required to do so. Any payments made by
Lender under this Section shall become the Obligation of Debtor and shall be
secured by the Collateral.
(j) Insurance. Debtor shall either (i) procure insurance
insuring the Collateral against loss through theft, fire or casualty or (ii) may
be self-insured, if approved in advance by Lender. If insured, any insurance
policy shall name Lender as Loss Payee under the property damage provisions and
Additional Named Insured under the liability provisions where applicable and
provide evidence of insurance to the Lender and be satisfactory to Lender as to
the terms and duration and contain a term to the effect that notice of
termination will be sent to Lender at least thirty (30) days prior to any
contemplated termination and be delivered to Lender. If Debtor at any time adds
insurance covering the Collateral or changes policies, Debtor agrees that the
new policies will comply with the terms of this paragraph.
If self-insured, Debtor warrants and agrees that it will provide proof
of any fund or assets which Debtor has established or set aside for the payment
of any losses sustained with regard to the Collateral. Debtor continues to bear
the entire risk of loss for destruction of or
3
<PAGE> 4
damage to the Collateral. If Debtor shall obtain insurance coverage on the
Collateral from an outside insurance company Debtor agrees that the new policies
shall comply with the terms of this paragraph.
(k) Reports. Debtor shall provide Lender at its address all
quarterly reports of Debtor's financial condition and annual financial reports
reviewed by an independent certified public accountant or more frequently as
requested.
(l) Use of Equipment. Debtor will comply with all laws,
regulations, and ordinances, and all applicable requirements of the manufacturer
of the Equipment, applicable to the physical possession, operation, condition,
use and maintenance of the Equipment. Debtor agrees to obtain all permits and
licenses necessary for the operation of the Equipment.
(m) Corporate Changes. Debtor will not enter into any merger
or consolidation or effect any reorganization or recapitalization without the
prior written consent of Lender.
6. Default. It is agreed that the following events shall
constitute a default under this Note and Security Agreement:
(a) Nonpayment. Any failure of Debtor to pay when due any
Obligations secured by this Note and Security Agreement shall constitute a
default. This includes, but is not limited to, any failure to pay principal or
interest when due, failure to pay taxes, failure to pay insurance and failure to
pay delinquent charges.
(b) Nonperformance. Any failure of Debtor to perform or
observe fully and in any satisfactory manner the terms of any Obligations
secured by this Note and Security Agreement shall constitute a default.
(c) Warranties and Representations that Prove False. Any
warranty or representation made to Lender in order to induce the making of the
Loan to Debtor whether made by Debtor, or others on behalf of Debtor, including
agents, employees, sureties, guarantors, co-signors and the like, and whether
such representations are contained in this agreement or in related materials,
such as financial statements, loan applications, supporting documentation and
guarantees, or in any financial instrument, such as a promissory note, executed
in conjunction with this Note and Security Agreement, if incorrect in any
material respect shall operate as a default under this Note and Security
Agreement.
(d) Levy and Attachments. Seizure, attachment or levy on any
property of Debtor whether or not such property is the subject of the security
interest created by this Note and Security Agreement, shall operate as a default
under this Note and Security Agreement.
(e) Insolvency and the Like. It shall operate as a default
under this Note and Security Agreement if for any reason Debtor becomes
insolvent or Debtor becomes subject to any proceeding under the bankruptcy or
insolvency laws, including an assignment for the benefit of creditors or Debtor
has its property placed under the custody of a receiver or trustee.
(f) Alteration of Debtor's Operating Conditions. Without
Lender's written permission, dissolution or other termination of the existence
of Debtor or any forfeiture of its
4
<PAGE> 5
right to do business, as well as any merger, consolidation, or the like with
another, shall constitute a default under this Note and Security Agreement.
(g) Loss or Destruction of Collateral. The theft, loss,
destruction, substantial damage to or alteration of the Collateral, whether in
whole or in part, shall constitute a default under this Note and Security
Agreement.
7. Acceleration. Upon the occurrence of an event of default or at
any other time Lender may deem itself insecure, Lender may, without notice to
the Debtor, declare all or any of the Obligations immediately due and payable.
8. Rights and Remedies on Default.
(a) Code Rights. Upon the occurrence of an event of default,
Lender shall have all rights and remedies provided by law, including but not
limited to those provided in the Uniform Commercial Code with respect to the
Collateral.
(b) Right to Possession. Upon the occurrence of an event of
default lender shall have the right to take possession of the Collateral.
(c) Right to Sell. Upon the occurrence of an event of default
lender shall have the right to sell, assign, deliver, encumber or otherwise
dispose of any of the Collateral.
(d) Notice of Sale. Lender shall give Debtor notice of the
time and place of the public sale of the Collateral or of the time after which
any private sale or other intended disposition is to be made by sending a notice
of such sale to Debtor by regular mail at least ten (10) days before the sale or
disposition, which Debtor agrees shall be reasonable notice.
(e) Charges. In the event that Collateral is sold or otherwise
disposed of, the resale price or return shall be applied in the first instance
to the reasonable expenses retaking, holding, preparing for sale or lease,
selling, leasing and the like.
(f) Attorney's Fees. The proceeds of the disposition may be
applied in the first instance to Lender's attorney's fees and legal expenses.
(g) Attorney in Fact. Debtor appoints Lender the attorney in
fact of Debtor for the purpose of carrying out the provisions of this Note and
Security Agreement and taking any action and executing any instrument which the
Lender may deem necessary or advisable the accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Where allowed by law, Lender shall have the right to execute and file any
financing statements on behalf of Debtor to protect its interest in Collateral.
Lender shall also have the right to endorse the name of Debtor on any checks,
notes or any other instruments for the payment of money, to deposit the same in
bank accounts, in either Lender's own name or in the name of Debtor to
institute, prosecute, settle or compromise any summary or legal proceedings for
the recovery of any of the gross receipts from the operation of the Equipment
and to initiate, prosecute, settle or compromise any other proceedings for the
protection of the Equipment, for the recovery of any damages done to the
Equipment or to defend any legal proceedings brought against Debtor arising out
of the operation of the Equipment. Lender, as Debtor's attorney-in-fact, shall
also have the right to make claim for,
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<PAGE> 6
receive payment or endorse all documents, checks or drafts for loss or damage or
return premium under insurance policies issued on collateral.
Debtor shall indemnify and hold Lender harmless from any loss, claim of
damage to persons or property arising out of Debtor's use, possession or storage
of the Equipment.
9. Reimbursement of Fees. In the event Lender is a party to any
litigation affecting the security or the lien of its security interest in the
Collateral, including any suit by Lender to close its security interest in the
Collateral or any suit in which Lender may be named a party defendant in which
it is obligated to protect its right or lien, including bankruptcy proceedings,
Lender may incur expenses and advance payments for lien searches, costs,
expenses and reasonable attorney's fees, which amount shall be deemed additional
Obligations secured by the Collateral.
10. Miscellaneous.
(a) All rights and remedies of Lender inure to the benefit of
its successors, assigns, representatives, receivers and trustees.
(b) In the event any provision of this Note and Security
Agreement shall be found to be unenforceable in any legal proceeding, the
remaining provisions shall remain in force and effect.
(c) Prior to Funding this Note, Debtor shall deliver to Lender
all documents required by this Note and Security Agreement in a form
satisfactory to Lender.
(d) This Note and Security Agreement becomes effective when
signed and delivered to Lender.
(e) Debtor acknowledges receipt of a copy of this Note and
Security Agreement.
(f) This Note and Security Agreement is and shall be deemed to
be binding upon and shall inure to the benefit of the successors and assigns of
Lender and Debtor, provided however, Debtor may not, assign any of its rights or
delegate any of its obligations hereunder without the prior written consent of
Lender. This Note and Security Agreement may be assigned by Lender without
notice to Debtor and the Guarantors, in which event the assignee shall be
entitled to exercise all rights and powers but not be chargeable with any
obligations or liabilities of Lender hereunder. Assignee may also grant a
security interest in the Collateral and this Note and Security Agreement. The
Assignee's rights or the rights of the Holder of a security interest in this
Note and Security Agreement shall be free from all defenses, set offs and
counterclaims which Debtor may be entitled to assert.
(g) This Note and Security Agreement is and shall be deemed to
be contract entered into and made pursuant to the laws of the State of Iowa and
shall in all respects be governed, construed, applied, and enforced in
accordance with the laws of said state and any action to enforce, construe,
invalidate or modify this Agreement shall be brought in a court of competent
jurisdiction in Linn County, Iowa. Debtor waive the right to demand a trial by
jury in any action hereunder.
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(h) Any demand or notice required or permitted to be given
shall be deemed effective when deposited in the United States mail addressed to
the party at the address shown or to such other address as may be provided in
writing prior to the giving of such notice by the party to be notified.
(i) This Note and Security Agreement constitutes the entire
agreement among the parties hereto and may not be changed or canceled orally,
but only in writing, signed by the party to be charged.
(j) Debtor agrees to deliver to Lender its successors and
assigns, upon request of Lender, such certificates, acknowledgement, consents,
opinions of counsel and any other instruments, all in form and substance
satisfactory to Lender, which Lender may, in its sole discretion, determine to
be necessary or proper to confirm any or all of the representations and
agreements made by Debtor hereunder or to facilitate the assignment by Lender of
its right, title and interest in and to the Collateral and this Note and
Security Agreement.
11. Guarantors. Lender has required the participation of the
Guarantor as a precondition to making the loan evidenced by this Note and
Security Agreement. The Guarantor by the execution of this Note and Security
Agreement acknowledge that the obligations of Debtor to Lender are enforceable
in accordance with their terms, that such obligations of Debtor to Lender
constitute guaranteed obligations of the Guarantor under the corporate guaranty
executed by the Guarantor this same date and that the guaranty is in full force
and effect, without amendment or defense of any description.
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<PAGE> 8
Date: As of October 28, 1997
PIC Resources Corporation
By:
--------------------------------------
Title:
-----------------------------------
ATN Communications, Inc.
By:
--------------------------------------
Title:
-----------------------------------
Guarantor:
Priority International Communications, Inc.
By:
----------------------------------------
Its:
----------------------------------------
Berthel Fisher & Company Leasing, Inc.
By:
--------------------------------------
Title:
-----------------------------------
8
<PAGE> 9
CONDITIONAL ASSIGNMENT & SECURITY AGREEMENT
This conditional Assignment and Security Agreement (hereinafter
Agreement) is entered into as of this 28th day of October, 1997, by PIC
Resources Corporation and ATN Communications, Inc., (hereinafter "Borrower") and
Berthel Fisher & Company Leasing, Inc. (hereinafter BFCL).
Whereas, BFCL has entered into a Note and Security agreement (the
"Note") with PIC Resources Corporation and ATN Communications, Inc.,
co-borrowers (the "Borrowers"); and
Whereas Wright desires to assume the Note in the event of a default by
the Borrower; and
Whereas, BFCL desires that Wright assume the Note in the event of a
default by the Borrower.
Now therefore, in consideration of the mutual benefits to be derived by
all parties hereto, receipt to which is acknowledged hereto, all parties agree
to the following:
1. The Note, which is identified as Exhibit A is attached to and made
a part hereof, will not be assigned, sold, or hypothecated except as a further
assigned to Firstar Financial Services. Borrowers do hereby conditionally sell,
assign, transfer and set over unto Wright all of right, title, and interest
under the Note. Should at any time, during the term of the Note, payments are
not made on a timely basis, or there is a default in any other manner, then this
Assignment will become a Present Assignment effective immediately. Wright will
be notified of the assignment immediately, either by Borrowers or BFCL or both,
and all payments due under the Note will be paid directly to BFCL. This
Agreement shall stay in effect throughout the entire term of the Note.
2. a) Borrowers hereby grant, sell, assign, convey, warrant, and
mortgage to Wright and gives and agrees that Wright does and shall have a
security interest under the Uniform Commercial Code in the following described
personal property, which is identified more fully on Schedule A which is
attached to Exhibit A and made a part hereof, (hereinafter the "Security").
Further, Borrowers agree to assign to Wright and file the UCC's executed in
connection with the Note.
b) Borrowers warrant that and Borrowers will keep and maintain the
Security free and clear of all encumbrances, charges and liens except as herein
provided.
c) Borrowers warrant that the Security will not be moved from the
state and country where it is currently located, nor will it be sold or
otherwise disposed of with out prior written consent of BFCL and Wright.
d) Borrowers will either keep and maintain the Security in good
order and repair and working condition at all times.
3. In the event of a default under the Note, BFCL agrees to the
assignment of the Note to Wright by the Borrowers and the assumption of the Note
by Wright, and Wright agrees
<PAGE> 10
to accept the assignment of the Note from the Borrowers and to assume the Note
and all its terms and conditions.
4. This Agreement shall be binding upon all parties and their heirs,
successors and assigns.
5. This Agreement shall be deemed to have been made in Iowa and
except for local filing requirements, shall be governed by and construed in
accordance with the laws of the state of Iowa.
In Witness Whereof, all parties hereto have executed this Agreement or
caused it to be executed by authorized representatives on the day and date set
out above.
BERTHEL FISHER & COMPANY ATN COMMUNICATIONS, INC.
LEASING, INC.
By: By:
-------------------------- ----------------------------
Its: Its:
------------------------- ---------------------------
PIC RESOURCES CORPORATION WAYNE WRIGHT
By:
-------------------------- ------------------------
Its:
-------------------------
<PAGE> 11
SCHEDULE "A"
Schedule attached to and made a part of that Note and Security Agreement dated
the 28th day of October, 1997, between the undersigned Debtor and Berthel Fisher
& Company Leasing, Inc.
- --------------------------------------------------------------------------------
Quantity/Manufacturer-Description
7 Cabinet Harris 20/20 Switching System w/ Protocol P2000 operating system
Switch#1 1,920 ports and 80 T's
Switch#2 1,200 ports and 50 Ts
Protocol system provides fully digital operator services center w/3,120 digital
channels 48 automated channel 50 live channels (existing capacity of 1,000,000 +
minutes per month)
35 complete operator center stations equipped w/ 386/586 PCs and auxilary
equipment
22 fully furnished offices w/work stations
Plus all trade accounts receivable, now owned and hereafter aquired
- --------------------------------------------------------------------------------
This schedule is hereby verified as correct by the undersigned Debtor, who
acknowledges receipt thereof.
BORROWERS: PIC RESOURCES CORP.
BY:
--------------------------------------------------------------
(AUTHORIZED SIGNATURE & TITLE)
ATN COMMUNICATIONS, INC.
BY:
--------------------------------------------------------------
(AUTHORIZED SIGNATURE & TITLE)
UCC FILING:
THE EQUIPMENT DESCRIBED ON THIS SCHEDULE "A" IS THE SUBJECT OF A NOTE, AND THIS
FINANCING STATEMENT IS FILED FOR INFORMATIONAL PURPOSES. IF THE NOTE IS DEEMED
TO BE A NOTE INTENDED AS SECURITY, THEN THIS FINANCING STATEMENT IS FILED TO
PERFECT A PURCHASE MONEY SECURITY INTEREST.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the use in this Registration Statement of Murdock Communications
Corporation (the "Company") on Form SB-2 of our report dated March 22, 1999
(which expresses an unqualified opinion and includes an explanatory paragraph
relating to substantial doubt about the Company's ability to continue as a going
concern), appearing in the Prospectus, which is a part of this Registration
Statement.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Cedar Rapids, Iowa
May 10, 1999
II-1
