-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ws9X+XE8b7ZdQutiOm0spdEtsftNTcSiVhZtNea35VliH7slcEIwn/mwyCi/xx2P T0wstKUYqOgbc9Xar+YFyg== 0001047469-98-040690.txt : 19981116 0001047469-98-040690.hdr.sgml : 19981116 ACCESSION NUMBER: 0001047469-98-040690 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980731 FILED AS OF DATE: 19981113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN UNITED GLOBAL INC CENTRAL INDEX KEY: 0000859792 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-CONSTRUCTION & MINING (NO PETRO) MACHINERY & EQUIP [5082] IRS NUMBER: 954359228 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-13549 FILM NUMBER: 98747795 BUSINESS ADDRESS: STREET 1: 25 HIGHLAND BLVD CITY: DIX HILLS STATE: NY ZIP: 11746 BUSINESS PHONE: 5162542134 MAIL ADDRESS: STREET 1: 25 HIGHLAND BLVD CITY: DIX HILLS STATE: NY ZIP: 11746 FORMER COMPANY: FORMER CONFORMED NAME: ALROM CORP DATE OF NAME CHANGE: 19600201 10-K 1 FORM 10-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended July 31, 1998 OR TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____________ to ________________ Commission file number 0-19404 AMERICAN UNITED GLOBAL, INC. (Exact name of registrant as specified in its charter) Delaware 95-4359228 - -------- ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 11130 NE 33rd Place, Suite 250 Bellevue, Washington 98004 - -------------------- ----- (Address of principal executive offices) (Zip Code) (425) 803-5400 (Registrant's telephone number, including area code) Securities registered pursuant to Section 12 (b) of the Exchange Act Title of each class Name of exchange on which registered - ------------------- ------------------------------------- None None Securities registered pursuant to Section 12 (g) of the Act: Common Stock, $.01 par value (Title of Class) Check whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No |_| Transitional Small Business Disclosure Format Yes |_| No |X| Check if there is no disclosure of delinquent filers in response to item 405 of Regulation S-K contained in this form, and no disclosure will be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. |_| The aggregate market value of the voting stock held by non-affiliates of the issuer as of November 9, 1998 was $453,296. ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS Check whether the issuer has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of securities under a plan confirmed by a court. Yes |_| No |_| APPLICABLE ONLY TO CORPORATE REGISTRANTS The number of shares outstanding of the registrant's Common Stock, $.01 Par Value, on November 11, 1998 was 11,620,715 shares. Documents incorporated by reference: None PART I ITEM 1. DESCRIPTION OF BUSINESS SUMMARY American United Global, Inc., a Delaware corporation (the "Company"), through its operating subsidiaries, was engaged in three distinct businesses during the fiscal year ending July 31, 1998: (i) the distribution, rental and servicing of construction equipment (the "Distribution Business"), (ii) site acquisition, zoning, architectural and engineering services for the wireless communication and telecommunications industry and general construction engineering services (the "Telecommunication and Construction Businesses") and (iii) the design, development and marketing of computer software and software related products and services (the "Computer Software Businesses"). The Distribution Business The Company's distribution business operates through the Company's 60.5%-owned subsidiary, Western Power & Equipment Corp., a Delaware corporation ("Western"). Western is engaged in the sale, rental, and servicing of light, medium-sized, and heavy construction, agriculture, and industrial equipment, parts and related products which are manufactured by Case Corporation ("Case") and certain other manufacturers. The Company believes, based upon the number of locations owned and operated, that it is the largest independent dealer of Case construction equipment in the United States. Products sold, rented, and serviced by the Company include backhoes, excavators, crawler dozers, skid steer loaders, forklifts, compactors, log loaders, trenchers, street sweepers, sewer vacuums, and mobile highway signs. Western operates out of 27 facilities located in the states of Washington, Oregon, Nevada, California, and Alaska. The equipment distributed by the Company is furnished to contractors, governmental agencies, and other customers primarily for use in the construction of residential and commercial buildings, roads, levees, dams, underground power projects, forestry projects, municipal construction, and other projects. Westerns growth strategy focuses on acquiring additional existing distributorships and rental operations, opening new locations, and increasing sales at its existing locations. In such connection, it may seek to operate additional Case or other equipment retail distributorships, and sell, lease and service additional lines of construction equipment and related products not manufactured by Case. Western earned net income of approximately $1.8 million on net sales of $163 million in the fiscal year ended July 31, 1998 and $1.0 million on net sales of $148 million in fiscal year ended July 31, 1997, as compared to net income of approximately $2.1 million on net sales of $107 million in the fiscal year ended July 31, 1996. The Telecommunication and Construction Business The Company is also involved in the construction and wireless communications consulting business through a minority owned subsidiary, IDF International, Inc. ("IDF"). TechStar Communications, Inc. ("TechStar") a wholly owned subsidiary of IDF, provides consulting services to the wireless communications industry in the form of network hardware acquisition, zoning, architectural and engineering consulting services. The Company merged TechStar into IDF in a reverse triangular merger, resulting in the Company owning approximately 58% of IDF. IDF, through its wholly-owned Hayden/Wegman, Inc. subsidiary ("Hayden/Wegman") provides general construction and engineering services to municipalities and private industry. During the year ended July 31, 1998 IDF sold equity securities that reduced the Company's percentage ownership of IDF voting shares to approximately 48%. As a result, effective August 1, 1997, the Company's minority interest in IDF is accounted for using the equity method. TechStar, acquired in December 1996, has been in business since February 28, 1994, generated revenues of approximately $4.3 million in the 12 months ended December 31, 3 1996, $3.8 million in the seven months ended July 31, 1997, and $5.2 million in the 12 months ended July 31, 1998, respectively, and Hayden/Wegman, which has been in business for over 50 years, generated revenues of approximately $11.7 million in the year ended June 30, 1996, $11.2 million in the year ended June 30, 1997, and $8.8 million in the year ended June 30, 1998, respectively. Net loss for IDF for the year ended July 31, 1998 was $9,930,000 including the impairment of goodwill in the amount of $7,500,000. The Computer Software Business The Company's attempt to penetrate and achieve profitability in the computer software industry has not been successful. The Company experienced the adverse effects of (i) the extensive capital required to be invested in order to develop the Company's NTERPRISE and FreeAgent technologies, (ii) certain strategic decisions and policy changes by Microsoft, Inc., which materially and adversely affected the marketability for the Company's NTERPRISE software product, (iii) a lack of market demand for certain of the software products previously acquired and delays in anticipated customer acceptance of the FreeAgent product, and (iv) disputes with certain key executives in such computer software businesses. As a result of the foregoing, the Company incurred net losses from its computer and technology businesses aggregating $17.9 million in its fiscal year ended July 31, 1997, including write-offs of investment and goodwill aggregating approximately $5.3 million, and an additional $2.5 million of net losses in the six months ended January 31, 1998. Accordingly, in April 1998, the Company determined to divest and/or cease operations of the computer software and related technology businesses. FreeAgent. The Company, through its wholly-owned Connectsoft Communications Corporation ("Connectsoft") subsidiary, has been developing a unified, intelligent communications system being marketed under the name "FreeAgent." FreeAgent is designed to unify communications into a single message box, allow access to that message box through any telephone or online computer and apply autonomous software processes (known as intelligent agentry) to the data flowing in and out of the message box for the purpose of automating communications and assisting the user in managing communications. FreeAgent is being developed to integrate e-mail, voice mail, facsimile, paging, content from the World Wide Web and potentially any other digital data from the Internet, enterprise intranets, private branch exchange ("PBX") telephone systems and the public switched telephone network. On July 10, 1998, the Company entered into an agreement to sell substantially all of the assets of its Connectsoft subsidiary, including the network operations center ("NOC") to eGlobe, Inc., formerly known as Executive TeleCard, Ltd. ("eGlobe"). As consideration for the assets, eGlobe will assume up to $4,500,000 of Connectsoft liabilities and leases, most of which have been guaranteed by the Company. The Company will also receive as additional consideration from eGlobe, on the earlier of two years from the closing of the sale to eGlobe or the resale by eGlobe of the Connectsoft business, 7.5% of the increase in value of the Connectsoft business. 4 NTERPRISE. The Company, through its 80.4% owned subsidiary, Exodus Technologies, Inc. ("Exodus"), has designed and developed a proprietary application remoting software, marketed as NTERPRISE, which, when combined with a multi-user enabling software "kernal" that modifies certain source code instructions in the Windows operating system, allows users to run Windows application server software programs designed for the Microsoft Windows NT operating system on users' existing Unix workstations, X-terminals and other X-windows devices, Macintosh terminals, Java-enabled network computers and legacy computers. Since its July 1996 acquisition of the Exodus technology, the Company has expended in excess of $7.0 million to develop and market its NTERPRISE products. In September 1997, Microsoft announced that it would incorporate its own multi-user software in future versions of Windows NT and that only its Windows NT share client/server protocol and the application remoting software protocol of a competitor of Exodus would be supported in the initial releases of Windows NT 4.0 and 5.0. As a result of these material adverse developments, the Company effectively terminated its Exodus operations and is attempting to license to third parties its software in a manner which would not require a license or other authorization from Microsoft. As a result of these material adverse developments, the Company has terminated its Exodus operations in November 1997 and has written off the Exodus goodwill and its investment in the NTERPRISE products and system as of July 31, 1997. InterGlobe. The Company's wholly-owned subsidiary, InterGlobe Networks, Inc., ("InterGlobe"), provides network engineering, design and consultation services, network security, remote network management and monitoring as well as Intranet development. The Company incurred a loss of approximately $1.6 million in connection with an impairment in its investment in InterGlobe and accrued such loss at July 31, 1997. The Company discontinued the operations of InterGlobe in fiscal year 1998 and took additional write-offs of $1.5 million in connection therewith. STRATEGIC GOALS The Company is currently considering focusing its strategy on acquisitions into other businesses, although the Company has not yet identified any definitive acquisition candidate. Western's growth strategy focuses on acquiring additional existing distributorships and rental operations, opening new locations, and increasing sales at its existing locations. As opportunities arise, Western intends to make strategic acquisitions of other authorized Case construction equipment retail dealers located in established or growing markets, as well as dealers or distributors of construction, industrial, or agricultural equipment, and related parts, manufactured by companies other than Case. In addition to acquisitions, Western plans to grow by opening new retail outlets. The 5 strategy in opening addition retail outlets has been to test market areas by placing sales, parts, and service personnel in the target market. If the results are favorable, a retail outlet is opened with its own inventory of equipment. This approach reduces both the business risk and the cost of market development. The third prong of Western's growth strategy is to expand sales at its existing locations in three ways. First, Western will continue to broaden its product line by adding equipment and parts produced by manufacturers other than Case. Western has already added products to its inventories produced by such quality manufacturers as Dynapac, Champion, Link-Belt, Takeuchi, Tymco, Vactor, Kawasaki, Kubota, Daewoo, and Stewart & Stevenson. Second, Western will seek to increase sales of parts and service--both of which have considerably higher margins than equipment sales. This growth will be accomplished through the continued diversification of our parts product lines and the servicing of equipment produced by manufacturers other than Case. Third, Western plans to further develop its fleet of rental equipment. As the cost of purchasing equipment escalates, short and long-term rental will become increasingly attractive to Western's customers. Management anticipates that rental of equipment will make up an increasing share of its revenues. HISTORY AND RECENT ACQUISITIONS AND DIVESTITURES The Company was initially organized as a New York corporation on June 22, 1988 under the name Alrom Corp., and completed an initial public offering of securities in August 1990. The Company effected a statutory merger in December 1991, pursuant to which the Company was reincorporated in the State of Delaware under the name American United Global, Inc. Western Effective November 1, 1992, the Company's newly-formed Western subsidiary completed the acquisition from Case of $27.2 million of new and used construction equipment inventory and parts inventory, and $4.5 million of vehicles, tools, fixtures and other assets used in connection with seven separate Case retail construction equipment distribution operations located in the states of Washington and Oregon which are still owned and operated by Western. Effective September 10, 1994, Western purchased from Case two retail construction equipment distribution outlets located in Sparks, Nevada and Fremont, California. In December 1994, Western relocated the Fremont outlet to Hayward, California. Under the terms of the 1994 Case transaction, Western was obligated to open two additional distribution outlets in Northern California. In March 1995, Western opened a retail store in Santa Rosa, California. In August 1995, Western opened a retail store in Salinas, California. In June 1995, Western completed an initial public offering of 1,495,000 shares of its common stock, which reduced the Company's interest in Western to 56.6%. 6 In February 1996, Western acquired substantially all of the operating assets used by Case in connection with its business of servicing and distributing Case construction equipment at a facility located in Sacramento, California (the "Sacramento Operation"). The acquisition was consummated for approximately $630,000 in cash, $1,590,000 in installment notes payable to Case, and the assumption of $3,965,000 in inventory floor plan debt with Case and its affiliates. In June 1996, Western acquired the operating assets of GCS, Inc. ("GCS"), a California-based distributor of heavy equipment primarily marketed to municipal and state government agencies responsible for street and highway maintenance. The Company operates the GCS business from a location in Fullerton, California and from the Company's existing facility in Sacramento, California. The purchase price for the GCS assets was $1,655,000. In January 1997, Western acquired the operating assets of Sahlberg Equipment, Inc., a four-store Pacific Northwest distributor of construction equipment, for $5,289,616. The purchase price consisted of $3,844,152 in equipment inventory, $796,914 in parts inventory, $625,326 in fixed assets, and $23,224 in work-in-process. The majority of the purchase price was financed by the proceeds of two term loans from Case Credit Corporation. Western operates the Sahlberg business from four locations, 2 in Washington state, one in Oregon and one in Alaska, with all operations conducted from facilities leased from third parties. In fiscal 1998, Western acquired four additional facilities, located in California and Alaska, and opened one new store in the state of Washington. On December 11, 1997, Western acquired substantially all of the operating assets used by Case in connection with its business of servicing and distributing Case agricultural equipment at a facility located in Yuba City, California. The acquisition was consummated for approximately $142,000 in cash, $628,000 in installment notes payable to Case and the assumption of $1,175,000 in inventory floor plan debt with Case and its affiliates. On April 30, 1998, Western acquired substantially all of the operating assets of Yukon Equipment, Inc. (Yukon) in connection with Yukon's business of servicing and distributing construction, industrial, and agricultural equipment in Alaska. Yukon has facilities in Anchorage, Fairbanks, and Juneau, Alaska. The acquisition was consummated for approximately $4,766,000 in cash, the assumption of approximately $2,786,000 in floor plan debt with Case and its affiliates, and 50,000 shares of Western's common stock. National O-Ring and Stillman Seal In January 1996, the Company sold all of the assets of its National O-Ring and Stillman Seal businesses comprising the manufacturing business of the Company to Hutchinson for $24,500,000, of which $20,825,000 was paid in cash and the aggregate $3,675,000 balance was 7 paid by delivery of two 24-month non-interest bearing promissory notes due and paid in January 1998. Connectsoft Effective as of July 31, 1996, the Company acquired, through a merger with an acquisition subsidiary of the Company consummated in August 1996 (the "Connectsoft Merger"), all of the outstanding capital stock of Connectsoft, Inc. a private company located in Bellevue, Washington, ("Old Connecstoft") which provided a variety of computer software products and services. In connection with the ConnectSoft Merger, Old Connectsoft shareholders received, on a pro rata basis, an aggregate of 976,539 shares of the Company's Series B-1 Preferred Stock (the "Preferred Stock"). Such Preferred Stock does not pay a dividend, is not subject to redemption, has a liquidation preference of $3.50 per share over Company Common Stock and votes together with the Company Common Stock as a single class on a one share for one vote basis. Each share of Preferred Stock is convertible into shares of Company Common Stock at the holder's option into a minimum of 976,539 shares of Company Common Stock and a maximum of 2,929,617 shares of Company Common Stock, based upon certain criteria. On July 10, 1998, the Company entered into an agreement to sell substantially all of the assets of its Connectsoft subsidiary, including the network operations center to eGlobe, Inc., formerly known as Executive TeleCard, Ltd. ("eGlobe"). As consideration for the assets, eGlobe will assume up to $4,500,000 of Connectsoft liabilities and leases, most of which have been guaranteed by the Company. Although eGlobe will be responsible for payment of those assumed liabilities, the assumption of such liabilities will not relieve the Company from its guarantees until such liabilities have been paid. The Company will also receive as additional consideration from eGlobe, on the earlier of two years from the closing of the sale to eGlobe or if eGlobe resells the Connecsoft business, 7.5% of the increase in value of the Connectsoft business. The Company anticipates that the transaction will close before November 30, 1998, however, there can be no assurance that the transaction will close in such time or at all. InterGlobe In September 1996, the Company acquired InterGlobe. The InterGlobe shareholders received the aggregate sum of $400,000, plus an aggregate of 800,000 shares of the Company's Common Stock. The former stockholders of Interglobe also received four-year employment agreements with Interglobe and the Company pursuant to which they received seven-year options to purchase an additional aggregate 800,000 shares of Company Common Stock at an exercise price of $6.00 per share (the "Interglobe Options"). The Interglobe Options vest and are exercisable over the four fiscal years ending July 31, 2000, based on InterGlobe achieving certain pre-tax income and other factors. In addition, the Interglobe agreement provides that if the Company effects a public offering of Interglobe or a sale of Interglobe prior to July 31, 2000, the Interglobe stockholders may elect (but shall not be required) to exchange two-thirds of all 8 Company securities received by them in the Interglobe Merger for an aggregate of 25% of the common stock of Interglobe owned by the Company prior to such transaction. In April 1998, the Company discontinued operations of InterGlobe. On November 4, 1997, Artour Baganov, the former principal stockholder of InterGlobe, tendered his resignation as a member of the Board of Directors of the Company and InterGlobe. The Company and InterGlobe reached an agreement on July 22, 1998 with Mr. Baganov under which he agreed to terminate his employment agreement with InterGlobe and cancel his 698,182 performance options. In consideration, the Company and InterGlobe paid Mr. Baganov an aggregate of $300,000 in full settlement of obligations under his employment agreement and released such stockholder from his non-competition agreement with InterGlobe. Mr. Baganov also agreed to vote his 550,000 shares of Company Common Stock in favor of management's nominees for election to the Company's Board of Directors. Two other former stockholders of InterGlobe, who collectively own approximately 102,000 Company shares, had previously resigned as InterGlobe employees and their employment agreements were canceled. Exodus The Company, through its Exodus subsidiary, has designed and developed proprietary software, marketed as NTERPRISE-TM-, which allows users to run Windows-TM- application server software programs designed for the Microsoft-TM-Windows NT-TM- operating system developed by Microsoft on (i) users' existing Unix-TM- workstations, X-terminals and other X-widows devices, Macintosh terminals and Java-enabled network computers, which would otherwise not be Windows compatible, and (ii) on older versions of Windows compatible workstations which are otherwise incapable of running newer versions of Microsoft compatible software, such as Office95-TM- or Lotus NotesTM. The Company has discontinued its Exodus operations. Seattle OnLine In November 1996, the Company acquired the assets of Seattle OnLine, Inc. ("Seattle OnLine"), a company engaged in providing a regional Internet/Intranet telecommunication service in the form of high bandwidth Internet connectivity and hosting for businesses in the Pacific Northwest. The Company purchased the Seattle OnLine assets for the sum of $147,000 and 16,000 shares of the Company's Common Stock which were used to settle certain creditor claims. The Company also issued to the former stockholders of such corporation warrants to purchase an aggregate of 333,333 shares of the Company's Common Stock. Seattle OnLine ceased operations in August of 1997 and its remaining assets were sold to a privately held Company for $25,000 and 50,000 shares of common stock of the acquiring company. TechStar and IDF 9 Effective December 11, 1996, the Company acquired TechStar and issued to the former TechStar shareholders an aggregate of 507,246 shares of Company Common Stock, paid $780,000 in cash and delivered three year Company notes aggregating $600,000. In a related transaction, in April 1997 the Company also acquired Arcadia Consulting, Inc., a company formed by Solon L. Kandel for the purpose of providing consulting services to clients in the wireless telecommunications industry. The Company paid $220,000 and issued to Mr. Kandel 192,754 shares of Company Common Stock. Subsequent to such acquisitions, the former stockholders of TechStar publicly sold an aggregate of 331,346 of their 507,246 shares of Company Common Stock and Mr. Kandel publicly sold all of his 192,754 shares of Company Common Stock. In August 1997, the Company sold TechStar to IDF, pursuant to an agreement and plan of merger, dated July 31, 1997, among the Company, TechStar, IDF and an acquisition subsidiary of IDF (the "IDF Merger Agreement"). Upon consummation of the transaction, the Company received 6,171,553 shares of IDF common stock, representing approximately 58% of the fully diluted outstanding IDF common stock, as a result of which, for accounting purposes, the Company was deemed to have acquired IDF. Solon D. Kandel, Sergio Luciani and Simontov Moskona, the senior executive officers of TechStar, received three year options to purchase an aggregate of 856,550 shares of IDF common stock (the "IDF Options"), representing approximately an additional 8% of such fully diluted outstanding IDF common stock. In connection with the transaction (i) all options granted by the Company under their employment agreements entitling Messrs. Kandel, Luciani and Moskona to purchase an aggregate of 780,000 shares of Company Common Stock (subject to achievement of certain financial performance targets), and all related 120,000 performance options held by other TechStar employees, were canceled, (ii) each of Messrs. Luciani and Kandel tendered their resignations as directors of the Company, and (iii) Messrs. Luciani, Moskona and Kandel utilized $600,000 of the net proceeds from the sale of their Company shares to invest in convertible securities of IDF. Messrs. Kandel, Luciani and Moskona are currently the senior executive officers of IDF and have each entered into employment agreements with IDF expiring November 30, 2000. Pursuant to such agreements, Messrs. Kandel, Luciani and Moskona are entitled to receive, in addition to their base salaries and annual bonuses, IDF Options which vest based upon IDF and its consolidated subsidiaries, including TechStar and Hayden Wegman, achieving all or certain pro-rated portions of annual pre-tax income targets in each of fiscal years ending July 31, 1998, 1999 and 2000. In the event that any or all of such IDF Options do not vest, the number of shares of IDF common stock that would have been issued upon the exercise of such unvested IDF revert to the Company as additional consideration. Robert M. Rubin, the Chief Executive Officer and Chairman of the Board and a Director of the Company, is also a principal stockholder and member of the board of directors of IDF. Prior to consummation of the transactions contemplated by the IDF Merger Agreement Mr. Rubin converted an $800,000 loan previously made to IDF into IDF convertible preferred stock 10 convertible into an additional 400,000 shares of IDF common stock. In October 1998, Mr. Rubin advanced IDF $250,000 and, in November 1998, the Company advanced IDF $150,000. These advances are part of commitments of the Company and certain stockholders of IDF to fund up to $400,000 and $600,000, respectively, to IDF for working capital purposes. Conese Enterprises Transaction Effective March 24, 1998, the Company, Western and IDF entered into a securities purchase agreement with Conese Enterprises, Ltd. ("Enterprises"), pursuant to which Enterprises would have obtained voting control over the Company. As a result of discussions subsequent to entering into the agreement, the parties mutually agreed to terminate the securities purchase agreement. On June 27, 1998, the parties entered into an agreement releasing each other from any obligations under the securities purchase agreement. As part of the negotiated release, the Company reimbursed Enterprises $150,000 for their expenses relative to the proposed transactions. THE DISTRIBUTION BUSINESS General Western is engaged in the sale, rental, and servicing of light, medium-sized, and heavy construction, agricultural, and industrial equipment, parts, and related products which are manufactured by Case Corporation ("Case") and certain other manufacturers. The Company believes, based upon the number of locations owned and operated, that it is the largest independent dealer of Case construction equipment in the United States. Products sold, rented, and serviced by the Company include backhoes, excavators, crawler dozers, skid steer loaders, forklifts, compactors, log loaders, trenchers, street sweepers, sewer vacuums, and mobile highway signs. Western operates out of 27 facilities located in the states of Washington, Oregon, Nevada, California, and Alaska. The equipment distributed by Western is furnished to contractors, governmental agencies, and other customers, primarily for use in the construction of residential and commercial buildings, roads, levees, dams, underground power projects, forestry projects, municipal construction, and other projects. Western's growth strategy focuses on acquiring additional existing distributorships and rental operations, opening new locations, and increasing sales at its existing locations. In such connection, it may seek to operate additional Case or other equipment retail distributorships, and sell, lease, and service additional lines of construction equipment and related products not manufactured by Case. See "Growth Strategy". Growth Strategy Western's growth strategy focuses on acquiring additional existing distributorships, opening new locations and increasing sales at its existing locations. 11 As opportunities arise, Western intends to make strategic acquisitions of other authorized Case construction equipment retail dealers located in established or growing markets, as well as of dealers or distributors of industrial or construction equipment, and related parts, manufactured by companies other than Case. In addition to acquisitions, Western plans to grow by opening new retail outlets. The strategy in opening additional retail outlets has been to test market areas by placing sales, parts, and service personnel in the target market. If the results are favorable, a retail outlet is opened with its own inventory of equipment. This approach reduces both the business risk and the cost of market development. The third aspect of Western's growth strategy is to expand sales at its existing locations in three ways. First, Western will continue to broaden its product line by adding equipment and parts produced by manufacturers other than Case. Western has already added to its inventories products produced by quality manufacturers such as Dynapac, Champion, Link-Belt, Takeuchi, Tymco, Vactor, Kawasaki, Kubota, Daewoo and Stewart & Stevenson. Second, Western will seek to increase sales of parts and service--both of which have considerably higher margins than equipment sales. This growth will be accomplished through the continued diversification of the parts product lines and the servicing of equipment produced by manufacturers other than Case. Third, Western plans to further develop its fleet of rental equipment. As the cost of purchasing equipment escalates, short and long-term rental will become increasingly attractive to the Western's customers. Western anticipates that rental of equipment will make up an increasing shares of its revenues. The Equipment Case Construction Equipment The construction equipment (the "Equipment") sold, rented and serviced by Western generally consists of: backhoes (used to dig large, wide and deep trenches); excavators (used to dig deeply for the construction of foundations, basements, and other projects); log loaders (used to cut, process and load logs); crawler dozers (bulldozers used for earth moving, leveling and shallower digging than excavators); wheel loaders (used for loading trucks and other carriers with excavated dirt, gravel and rock); roller compactors (used to compact roads and other surfaces); trenchers (a small machine that digs trenches for sewer lines, electrical power and other utility pipes and wires); forklifts (used to load and unload pallets of materials); and skid steer loaders (smaller version of a wheel loader, used to load and transport small quantities of material-e.g., dirt and rocks around a job site). The sale prices of this Equipment ranges from $15,000 to $350,000 per piece of equipment. Under the terms of standard Case dealer agreements, Western is an authorized Case 12 dealer for sales of equipment and related parts and services at locations in the states of Oregon, Washington, Nevada and Northern California (the "Territory"). The dealer agreements have no defined term or duration, but are reviewed on an annual basis by both parties, and can be terminated without cause at any time either by Western on 30 days' notice or by Case on 90 days' notice. Although the dealer agreements do not prevent Case from arbitrarily exercising its right of termination, based upon Case's established history of dealer relationships and industry practice, Western does not believe that Case would terminate its dealer agreement without good cause. The dealer agreements do not contain requirements for specific minimum purchases from Case. In consideration for Western's agreement to act as dealer, Case supplies to Western items of Equipment for sale and lease, parts, cooperative advertising benefits, marketing brochures related to Case products, access to Case product specialists for field support, the ability to use the Case name and logo in connection with the Western's sales of Case products, and access to Case floor plan financing for Equipment purchases. Such floor planning arrangements currently provides Western with interest free credit terms of between one month and twelve months on purchases of specified types of new Equipment. Principal payments are generally due at the earlier of sale of the equipment or six months from the date of shipment by Case. Other Products Although the principal products sold, leased and serviced by Western are manufactured by Case, Western also sells, rents and services equipment and sells related parts (e.g., tires, trailers and compaction equipment) manufactured by others. Approximately 35% of Western's net sales for fiscal year 1998 resulted from sales, rental and servicing of products manufactured by companies other than Case, significantly higher than the 25% figure for fiscal year 1997 as Western continued its planned growth in product lines other than Case. Manufacturers other than Case represented by Western offer various levels of supplies and marketing support along with purchase terms that vary from cash upon delivery to interest free 12 month floor plans. Western's distribution business is generally divided into five categories of activity: (i) New Equipment sales, (ii) used Equipment sales, (iii) Equipment rentals, (iv) Equipment servicing, and (v) parts sales. New Equipment Sales At each of its distribution outlets, Western maintains a fleet of various Equipment for sale. The Equipment purchased for each outlet is selected by Western's marketing staff based upon the types of customers in the geographical areas surrounding each outlet, historical purchases as well as anticipated trends. Subject to applicable limitations in Western's manufacturers' dealer contracts, each distribution outlet has access to Western's full inventory of Equipment. 13 Western provides only the standard manufacturer's limited warranty for new Equipment, generally a one-year parts and service repair warranty. Customers can purchase extended warranty contracts. Used Equipment Sales Western sells used Equipment that has been reconditioned in its own service shops. It generally obtains such used Equipment as "trade-ins" from customers who purchase new items of Equipment and from Equipment previously rented and not purchased. Unlike new Equipment, Western's used Equipment is generally sold "as is" and without a warranty. Equipment Rental Western maintains a separate fleet of Equipment that it holds solely for rental. Such Equipment is generally held in the rental fleet for 12 to 36 months and then sold as used Equipment with appropriate discounts reflecting prior rental usage. As rental Equipment is taken out of the rental fleet, Western adds new Equipment to its rental fleet as needed. The rental charges vary, with different rates for different types of Equipment rented. In October 1998, Western opened its first rental-only store, located in the Seattle, Washington area, under the name Western Power Rents. This store rents a wide range of products including Equipment from Case and other manufacturers with whom Western has dealer agreements as well as Equipment from companies with which Western has had no prior relationship. Equipment Servicing Western operates a service center and yard at each retail distribution outlet for the repair and storage of Equipment. Both warranty and non-warranty service work is performed, with the cost of warranty work being reimbursed by the manufacturer following the receipt of invoices from Western. Western employs approximately 145 manufacturer-trained service technicians who perform Equipment repair, preparation for sale, and other servicing activities. Equipment servicing is one of the higher profit margin businesses operated by Western. Western has expanded this business by hiring additional personnel and developing extended warranty contracts to be purchased by customers for Equipment sold and serviced by Western, and independently marketing such contracts to its customers. Western services items and types of Equipment which include those that are neither sold by Western nor manufactured by Case. Parts Sales Western purchases a large inventory of parts, principally from Case, for use in its Equipment service business, as well as for sale to other customers who are independent servicers of Case Equipment. Generally, parts purchases are made on standard net 30 day terms. 14 Western employs one or more persons who take orders from customers for parts purchases at each retail distribution outlet. The majority of such orders are placed in person by walk-in customers. Western provides only the standard manufacturer's warranty on the parts that it sells, which is generally a 90-day replacement guaranty. Sales and Marketing Western's customers are typically residential and commercial building general contractors, road and bridge contractors, sewer and septic contractors, underground power line contractors, persons engaged in the forestry industry, equipment rental companies and state and municipal authorities. Western estimates that it has approximately 18,000 customers, with most being small business owners, none of which accounted for more than 5% of its total sales in the fiscal year ended July 31, 1998. For fiscal years 1998, 1997, and 1996, the revenue breakdown by source for the business operated by the Company were approximately as follows:
FY 1998 FY 1997 FY 1996 ------- ------- ------- New Equipment Sales ............... 58% 58% 58% Used Equipment Sales .............. 11% 11% 12% Rental Revenue .................... 8% 9% 9% Parts Sales ....................... 18% 18% 17% Service Revenue ................... 5% 4% 4% --- --- --- 100% 100% 100% --- --- --- --- --- ---
Western advertises its products in trade publications and appears at trade shows throughout its territory. It also encourages its salespersons to visit customer sites and offer Equipment demonstrations when requested. Western's sales and marketing activities do not result in a significant backlog of orders. Although Western has commenced acceptance of orders from customers for future delivery following manufacture by Case or other manufacturers, during fiscal 1998 substantially all of its sales revenues resulted from products sold directly out of inventory, or the providing of services upon customer request. All of Western's sales personnel are employees of Western and all are under the general supervision of C. Dean McLain, the President of Western. Each Equipment salesperson is assigned a separate exclusive territory, the size of which varies based upon the number of potential customers and anticipated volume of sales, as well as the geographical characteristics of each area. Western employed 75 Equipment salespersons on July 31, 1998. 15 On July 31, 1998, Western employed 7 product support salespersons who sell Western's parts and repair services to customers in assigned territories. Western has no independent distributors or non-employee sales representatives. Suppliers Western purchases the majority of its inventory of Equipment and parts from Case. No other supplier currently accounts for more than 5% of such inventory purchases in fiscal 1998. While maintaining its commitment to Case to primarily purchase Case Equipment and parts as an authorized Case dealer, in the future Western plans to expand the number of products and increase the aggregate dollar value of those products which Western purchases from manufacturers other than Case in the future. Competition Western competes with distributors of construction, agricultural and industrial equipment and parts manufactured by companies other than Case on the basis of price, the product support (including technical service) that it provides to its customers, brand name recognition for its products, the accessibility of its distribution outlets and the overall quality of the Case and other products that it sells. Western management believes that it is able to effectively compete with distributors of products produced and distributed by such other manufacturers primarily on the basis of overall product quality, and the superior product support and other customer services provided by Western. Case's two major competitors in the manufacture of a full line of construction equipment of comparable sizes and quality are Caterpillar Corporation and Deere & Company. In addition, other manufacturers produce specific types of equipment which compete with the Case Equipment and other Equipment distributed by Western. These competitors and their product specialties include JCB Corporation-backhoes, Kobelco Corporation-excavators, Dresser Industries-light and medium duty bulldozers, Komatsu Corporation-wheel loaders and crawler dozers, and Bobcat, Inc.-skid steer loaders. Western is currently the only Case dealer for construction equipment in the states of Washington and Nevada and in the Northern California area, and is one of two Case dealers in the State of Oregon. None of the Case dealers in Western's territory are owned by Case. However, Case has the right to establish other dealerships in the future in the same territories in which the Company operates. In order to maintain and improve its competitive position, revenues and profit margins, Western plans to increase its sales of products produced by companies other than Case. Environmental Standards and Government Regulation 16 Western operations are subject to numerous rules and regulations at the federal, state and local levels which are designed to protect the environment and to regulate the discharge of materials into the environment. Based upon current laws and regulations, Western believes that its policies, practices and procedures are properly designed to prevent unreasonable risk of environmental damage and the resultant financial liability to Western. No assurance can be given that future changes in such laws, regulations, or interpretations thereof, changes in the nature of Western's operations, or the effects of former occupants' past activities at the various sites at which Western operates, will not have an adverse impact on the Company's operations. Western is subject to federal environmental standards because in connection with its operations it handles and disposes of hazardous materials, and discharges sewer water in its equipment rental and servicing operations. Western internal staff is trained to keep appropriate records with respect to its handling of hazardous waste, to establish appropriate on-site storage locations for hazardous waste, and to select regulated carriers to transport and dispose of hazardous waste. Local rules and regulations also exist to govern the discharge of waste water into sewer systems. Insurance The Company currently has general, product liability, and umbrella insurance policies covering the Company with limits, terms, and conditions which the Company believes to be consistent with reasonable business practice, although there is no assurance that such coverage will prove to be adequate in the future. An uninsured or partially insured claim, or a claim for which indemnification is not available, could have a material adverse effect upon the Company. Employees At July 31, 1998, Western employed 450 full-time employees. Of that number, 32 are in corporate administration for Western, 33 are involved in administration at the branch locations, 118 are employed in Equipment sales and rental, 89 are employed in parts sales, and 178 are employed in servicing construction equipment. At July 31, 1998, approximately 20 of Western's service technicians employed in the Sacramento, California operation were being represented by Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO under the terms of a five-year contract expiring August 31, 2001. Western believes that its relations with its employees are satisfactory. The Company has three executive officers and one administrative employee. Future Performance and Risk Factors The future performance, operating results and financial condition of the Company's Distribution Business are subject to various risks and uncertainties, including those described below. 17 Risk Factors Relating to the Company's Distribution Business Competition. The Company's Distribution Business operates in highly competitive environments, certain of which are characterized by firms having resources and manpower significantly greater than those of Western, and in all of which Western faces a great deal of competition on the basis of price. Such intense price competition has the effect of holding down Western's profit margins on product sales. The retail construction equipment industry, including the states of Washington, Oregon, California and Nevada in which Western operates, is highly fragmented with many brands of equipment and distributors of such brands active in the market. Moreover, Western's dealership arrangements with Case do not provide Western with exclusive dealerships in any territory. Although management believes that it is unlikely that Case will create additional independent dealers in the states of Oregon, Washington, California, Alaska or Nevada, or will reinstitute its own proprietary dealerships in that territory, there is no assurance that Case will not elect to do so in the future. See "Business--The Distribution Business--Competition." Government Regulation and Environmental Standards. Western operations are subject to numerous rules and regulations at the federal, state and local levels which are designed to protect the environment and to regulate the discharge of materials into the environment. Based upon current laws and regulations, Western believes that its policies, practices and procedures are properly designed to prevent unreasonable risk of environmental damage and the resultant financial liability to Western. No assurance can be given that future changes in such laws, regulations, or interpretations thereof, changes in the nature of Western's operations, or the effects of former occupants' past activities at the various sites at which Western operates, will not have an adverse impact on the Company's operations. Western is subject to federal environmental standards because, in connection with its operations, it handles and disposes of hazardous materials and discharges sewer water in its equipment servicing operations. Western internal staff is trained to keep appropriate records with respect to its handling of hazardous waste, to establish appropriate on-site storage locations for hazardous waste, and to select regulated carriers to transport and dispose of hazardous waste. Local rules and regulations also exist to govern the discharge of waste water into sewer systems. There is always the risk that such materials might be mishandled, or that there might occur equipment or technology failures, which could result in significant claims for personal injury, property damage and clean-up or remediation. Any such claims could have a material adverse effect on the Company. See "Business--The Distribution Business-Environmental Standards and Government Regulation." Risk of Termination of Case Dealership. Under the terms of the standard Case Corporation ("Case") construction equipment sales and services agreement with its dealers, including Western, Case reserves the right to terminate Western as an authorized Case dealer at 18 any one or more of the nineteen retail locations, for any reason, upon 90 days notice. In the Agreement of Purchase and Sale by and between Case and Western, dated December 4, 1992 (the "Case Purchase Agreement"), Case acknowledged that its corporate business policy is not to exercise such discretionary right of termination arbitrarily, and agreed that if Western's operations at a particular location acquired from Case are profitable and are terminated by Case for any reason other than "for cause" (defined as any grounds which Case shall determine in the exercise of its reasonable business judgment) it would not reinstate its own retail operations at such location through December 1997. Should its Case dealerships at any one or more locations be terminated by Case, the Company's business could be materially and adversely affected. In the event of such termination, the Company's interest in the Distribution Business segment would be significantly affected. Western would suffer significant adverse effects to its liquidity position and cash reserves, as all of Western's indebtedness to Case under its various secured financing agreements would become immediately due and payable upon termination of one or more of such dealerships. All of Western's indebtedness to its institutional lenders could also be accelerated at that time. Furthermore, in the event that Western accelerates growth of its Distribution Business, dependence upon Case as its principal supplier, at least in the near term, will increase. See "Business-The Distribution Business-The Equipment." Importance of Case Corporation to the Company's Operations. During the year ended July 31, 1998 the Company's Western subsidiary accounted for all of the Company's total net sales from continuing operations. Approximately 65% of Western's revenues result from sales, leasing and servicing of equipment and parts manufactured by Case. As a result, the ability of Case to continue to manufacture products that Western can successfully market and distribute, largely based on the quality and pricing of such products, is of material importance to the Company. In the event that Case should cease to manufacture equipment for the construction equipment industry, fail to produce sufficient products to stock the Company's inventories adequately, fail to maintain beneficial product price levels on its products or to maintain its international reputation for quality in such industry, the Company could be materially and adversely affected. Effects of Downturn in General Economic Conditions, Cyclicality and Seasonality. Demand for all of Western's construction equipment distributed through its retail operations is significantly affected by general domestic economic conditions. All of such products and services are either capital goods themselves, principally sold for inclusion in capital equipment or used for the provision of construction services by others. Sales of capital goods tend to fluctuate widely along with trends in overall economic activity in the national economy. A general inflationary spiral or a continuing increase in prevailing interest rates could adversely affect new construction, and consequently result in a significant reduction in demand for the construction equipment sold by Western. The construction equipment business has also historically been cyclical, and is subject to periodic reductions in the levels of construction (especially housing starts) and levels of total industry capacity and equipment inventory, irrespective of the effects of inflation or increasing interest rates. In addition, housing construction in the northwest slows 19 down beginning in November and continuing through to January. Accordingly, Western's operations may be materially and adversely affected by any general downward economic pressures, adverse cyclical trends, or seasonal factors. Dependence on Key Personnel. The Company's success in its Distribution Business depends to a significant degree upon the continuing contributions of its senior management and other key employees. The Company believes that its future success will also depend in large part on its ability to attract and retain highly-skilled sales and marketing personnel. Competition for such personnel is intense, and there can be no assurance that the Company will be successful in attracting, integrating and retaining such personnel. Failure to attract or retain existing and additional key personnel could have a material adverse effect on the Company's Distribution Business, operating results or financial condition. Risk Factors Relating to the Company in General Control by Management. As of November 4, 1998, the Company's directors and executive officers as a whole beneficially owned 1,515,548 shares or 13.0% of the Company's outstanding voting capital stock, assuming the exercise of all outstanding stock options held by them. Insofar as the holders of voting securities do not have cumulative voting rights under the Company's Certificate of Incorporation, the current executive officers and directors of the Company, acting together, are currently in a position to materially influence the outcome of issues to be voted on by the Company's stockholders. Volatility of Market Prices for Company's Common Stock. The market prices for the Company's publicly traded Common Stock has been historically volatile and there is limited liquidity in such market. Future announcements concerning the Company's Distribution Business, or its competitors, including operating results, government regulations, or foreign and other competition, could have a significant impact on the market price of the Common Stock in the future. See "Market for Common Equity and Related Stockholder Matters." Forward Looking Statements and Associated Risks. This annual report on Form 10-K contains certain forward-looking statements, including among others (i) anticipated trends in the Company's financial condition and results of operations, and (ii) the Company's business strategy. These forward-looking statements are based largely on the Company's current expectations and are subject to a number of risks and uncertainties. Actual results could differ materially from these forward-looking statements. In addition to other risks described elsewhere in this "Risk Factors" discussion, important factors to consider in evaluating such forward-looking statements include (i) changes in external competitive market factors or in the Company's internal budgeting process which might impact trends in the Company's results of operations; (ii) unanticipated working capital or other cash requirements; (iii) changes in the Company's business strategy or an inability to execute its strategy due to unanticipated changes 20 in the industries in which it operates; and (iv) various competitive factors that may prevent the Company from competing successfully in the marketplace. In light of these risks and uncertainties, many of which are described in greater detail elsewhere in this "Risk Factors" discussion, there can be no assurance that the events predicted in forward-looking statements will, in fact, transpire. ITEM 2. Properties The following table sets forth information as to each of the properties which the Company owns or leases: The Distribution Business:
Location and Use Lessor Expiration Annual Size/Square Purchase Date Rental Feet Options - ------------------------------------------------------------------------------------------------------------------------- 1745 N.E. Columbia Blvd. Carlton O. Fisher, CNJ 12/31/00 $67,500(1) Approx. 4 No Portland, Oregon 97211 Enterprises plus CPI Acres; (Retail sales, service, storage adjustments Building and repair facilities) 17,622 sq.ft. 1665 Silverton Road, N.E. LaNoel Elston Myers 7/10/01 $33,600(1) Approx. 1 No Salem, Oregon 97303 Living Trust Acre; (Retail sales, service, storage Buildings and repair facilities) 14,860 sq.ft. 1702 North 28th Street McKay Investment Company 6/14/01 $69,000(1) Approx. 5 No Springfield, Oregon 97477 Acres; (Retail sales, service, storage Building and repair facilities) 17,024 sq.ft.
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West 7916 Sunset Hwy. US Bank 9/30/03 $69,600(1) Approx. 5 No Spokane, Washington 99204 Acres; (Retail sales, service, storage Building and repair facilities) 19,200 sq.ft. 3217 Hewitt Avenue Dick Calkins Month to $40,320(1) Approx. 2.5 No Everett, Washington 98201 Month Acres; (Retail sales, service, storage Building and repair facilities) 12,483 sq.ft. 1901 Frontier Loop The Landon Group 4/30/02 $40,500(1) Approx. 7 No Pasco, Washington 99301 Acres; (Retail sales, service, storage Building and repair facilities) 14,200 sq.ft. 13184 Wheeler Road, N.E. Maiers Industrial park Month to $38,400(1) Approx. 10 No Building 4 Month Acres; Moses Lake, Washington 98837 Building (Retail sales, service, storage 13,680 sq. and repair facilities) ft. 63291 Nels Anderson Road B&K Management Corp. 10/31/98 $31,800(1) Approx. 1.9 No Bend, Oregon 97701 acres (Retail sales, service, storage building and repair facilities) 3,600 sq. ft. 4601 N.E. 77th Avenue Parkway Limited 4/30/01 $147,288 8,627 sq. ft. No Suite 200 Partnership Vancouver, Washington 98662 (Retail sales, service, storage and repair facilities)
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2702 W. Valley Hwy No. Avalon Island LLC 11/30/15 $204,000(1) Approx. 8 No Auburn, Washington 98001 Acres; (Retail sales, service, storage Building and repair facilities) 33,000 sq. ft. 500 Prospect Lane Frederick Peterson 9/15/02 $26,496(1) Approx. 1.9 No Moxee, Washington 98936 Acres; (Retail sales, service, storage Building and repair facilities) 6,200 sq. ft. 2112 Wildwood Way James Ghia 8/31/99 $18,720 Approx. 1 No Elko, Nevada 89431 Acre; (Retail sales, service, storage Building and repair facilities) 2,400 sq. ft. 1455 Glendale Avenue Owned N/A N/A Approx. 5 N/A Sparks, Nevada 89431 Acres; (Retail sales, service, storage Building and repair facilities) 22,475 sq.ft. 25886 Clawiter Road Fred Kewel II, Agency 11/30/99 $110,088(1) Approx. 2.8 No Hayward, California 94545 Acres; (Retail sales, service, storage Building and repair facility) 21,580 sq.ft. 3540 D Regional Parkway Soiland 2/28/99 $48,234(1) 5,140 sq. ft. No Santa Rosa, California 95403 plus CPI approximately (Retail sales, service, storage adjustments 1.25 acres and repair facility)
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1751 Bell Avenue McLain-Rubin Realty 2/2/16 $168,000(2) Approx. 8 No Sacramento, California 95838 Company LLC(2) Acres; (Retail sales, service, storage Buildings and repair facility) 35,941 sq. ft. 1041 S. Pershing Avenue Raymond Investment Corp. 3/14/01 $44,000(1) Approx. 2 No Stockton, California 95206 plus annual Acres; (Retail sales, service, storage CRI Buildings and repair facility) adjustments 8,000 sq. ft. 8271 Commonwealth AvenueBuena M.E. Robinson 3/31/2001 $81,600(1) Approx. 1 No Park, California 90621 acre; (Retail sales, service, storage Building and repair facility) 11,590 sq.ft. 672 Brunken Avenue R. Jay De Serpa, Ltd. 7/31/01 $28,800(1) Approx. 8 No Salinas, California 93301 Acres; (Retail sales, service, storage Building and repair facility) 4,000 sq.ft. 13691 Whitaker Way D&J Enterprises 5/1/01 $77,700 Approx. 2 No Portland, Oregon 97230 Acres; (Retail sales, service, storage Building and repair facility) 11,760 sq. ft. 2535 Ellis Street Hart Enterprises 2/15/02 $33,600 Approx. 2 No Redding, Oregon 96001 Acres; (Retail sales, service, storage Building and repair facility) 6,200 sq. ft.
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1702 Ship Avenue D&J Enterprises 1/18/99 $94,200(1) Approx. 4 No Anchorage, AK 99501 Acres; (Retail sales, service, storage Building and repair facility) 11,800 sq.ft. 913 S. Central McLain-Rubin Realty 5/31/17 $205,200(2) Approx. 4.4 No Kent, WA 98032 Company II, LLC (2) plus CPI Acres; (Retail sales, service, storage adjustments Building and repair facility) 21,400 sq. ft. 85454 Highway 11 Eagle Enterprises month to $21,600 Approx. 0.5 No Milton-Freewater, Oregon 97862 month Acres; (Retail sales, service, storage Building and repair facility) 1,000 sq. ft. 723 15TH Street Mark Flerchinger 11/02/02 $18,600 Approx. 1.2 Yes Clarkston, WA 99403 Acres; (Retail sales, service, storage Building and repair facility) 3,750 sq. ft. 3199 E. Onstott Road McLain-Rubin Realty III (2) 12/31/17 $54,000 (2) Approx. 13 No Yuba City, CA 95991 Acres; (Retail sales, service, Building storage and repair facility) 23,900 sq. ft. 2020 E.Third Avenue Owned N/A N/A Approx. 4 N/A Anchorage, AK 99501 Acres; (Retail sales, service, Building storage and repair facility) 15,650 sq. ft. 3510 International Way C & N Partners 6/15/99 $30,900 Approx. 2 No Fairbanks, AK 99701 Acres; (Retail sales, service, Building storage and repair facility) 4500 sq. ft.
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2275 Brandy Lane Excaliber Drill 2/29/00 $42,000 Approx. .5 No Juneau, AK 99801 Acres; (Retail sales, service, Building storage and repair facility) 1,500 sq. ft.
- ---------- (1) Net lease with payment of insurance, property taxes and maintenance costs by Company. (2) C. Dean McLain and Robert M. Rubin are (i) the Executive Vice President and Director of the Company and Chief Executive Officer of Western, and (ii) the President, Chief Executive Officer and Chairman of the Company, respectively. Messrs. Rubin and McLain are the equity owners of McLain-Rubin Realty Company, LLC. The terms of its lease with McLain-Rubin Realty Company LLC is "triple net", under which Western pays, in addition to rent, all insurance, property taxes, maintenance costs and structural and other repairs. Western's operating facilities are separated into nine "hub" outlets and eighteen "sub-stores." The hub stores are the main distribution centers located in Auburn and Spokane, Washington, Portland and Springfield, Oregon, Sparks, Nevada, Hayward and Sacramento, California. The sub-stores are the smaller retail facilities in Everett, Pasco, Moses Lake, Kent, Clarkston and Yakima, Washington; Portland, Salem, Springfield, Milton-Freewater and Bend, Oregon; Santa Rosa, Stockton, Yuba City, Fullerton, Buena Park, Redding and Salinas, California; Elko, Nevada; and Anchorage and Fairbanks, Alaska. ITEM 3. LEGAL PROCEEDINGS Except as set forth below, there are no pending material legal proceedings in which the Company or any of its subsidiaries is a party, or to which any of their respective properties are subject, which either individually or in the aggregate may have a material adverse effect on the results of operations or financial position of the Company. In May, 1998, a lawsuit was filed on behalf of the Company in a purported shareholder derivative action against certain directors of the Company. The lawsuit alleges that the defendant directors breached their fiduciary responsibilities of due care and loyalty to the Company and its stockholders in connection with a letter of credit guarantee by the Company for ERD Waste Corp., the sale of certain businesses of the Company to Hutchinson Corporation, and the delisting of the Company's common stock and publicly traded warrants from the Nasdaq Stock Market. The complaint did not specify the amount of damages sought. 26 In June, 1998 a shareholder class action was filed against the certain directors of the Company alleging that the defendant directors breached their fiduciary responsibilities of due care and loyalty to the Company and its stockholders in connection with a letter of credit guarantee by the Company for ERD Waste Corp., the sale of certain businesses of the Company to Hutchinson Corporation, and the delisting of the Company's common stock and publicly traded warrants from the Nasdaq Stock Market. The Company is not a defendant in this lawsuit. The Company is a named defendant in a matter brought by Peggy Stein in Los Angeles County Superior Court alleging that the Company conspired with her ex-husband to conceal community property assets from her in connection with her recent divorce. Ms. Stein is requesting damages against the Company and the other defendants in the approximate amount of $8,000,000 plus punitive damages. The Company believes Ms. Stein's claim is without merit and intends to defend the lawsuit vigorously. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS Not required. 27 PART II ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS. On February 4, 1998, the Company was notified by The Nasdaq Stock Market, Inc. ("Nasdaq"), that its common stock and warrants were delisted from Nasdaq for (i) failure to hold an annual stockholders meeting for fiscal year 1997 in violation of Nasdaq's rules requiring an annual stockholder meeting, (ii) adopting a stock option plan without stockholder approval in violation of Nasdaq's rules requiring such stockholder approval, and (iii) the issuance of the Series B-1 Convertible Preferred Stock to the Old ConnectSoft stockholders in August 1996 and the private placement of Series B-2 Convertible Preferred Stock in the 1997 private placement violation of Nasdaq's rules which, in effect, require shareholder approval for any transactions involving the present or potential issuance of voting securities representing more than 20% of the voting capital stock outstanding immediately before such transaction. The principal market for trading the Company's securities is the National Association of Securities Dealers Over-the-Counter Bulletin Board ("OTCBB"). The following is a table that lists the high and low selling prices for shares of the Company's Common Stock and for the Company's Public Warrants on the Nasdaq National Market System and the OTCBB during the periods identified:
Common Stock Public Warrants ------------------------------------- ---------------------------------- High Low High Low ------ ----- ------ ---- Fiscal 1996 First Quarter.......................... 6.58 5.08 1.125 0.75 Second Quarter......................... 11.88 6.08 1.00 0.75 Third Quarter.......................... 13.25 3.37 1.56 0.875 Fourth Quarter......................... 10.25 4.19 6.75 1.625 Fiscal 1997 First Quarter.......................... 10.875 5.25 5.25 2.875 Second Quarter......................... 11.375 7.563 4.875 3.875 Third Quarter.......................... 8.1875 3.44 4.50 3.75 Fourth Quarter......................... 6.0000 4.3875 4.50 3.25 Fiscal 1998 First Quarter.......................... 7.625 1.9375 5.25 2.25
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Second Quarter......................... 2.4375 1.375 1.75 1.00 Third Quarter.......................... 2.4375 .625 * * Fourth Quarter......................... .875 .33 * * Fiscal 1999 First Quarter.......................... .50 .28 * *
* The Company believes there has been no trading during this period. The Company extended the exercise period of the Public Warrants from July 31, 1998 to July 31, 1999. On November 10, 1998 the last sale price of the Common Stock was $0.468 as reported on the OTCBB. As of November 9, 1998, the Company had 115 record holders of its Common Stock and 6 record holders of its Public Warrants. Dividend Policy In the foreseeable future, the Company intends to retain earnings to assist in financing the expansion of its business. In the future, the payment of dividends by the Company on its Common Stock will also depend on its financial condition, results of operations and such other factors as the Board of Directors of the Company may consider relevant. The Company does not currently intend to pay dividends on its Common Stock. ITEM 6. SELECTED FINANCIAL DATA The following summary financial information for the fiscal years 1998, 1997, 1996, 1995 and 1994 have been derived from the audited financial statements of the Company. Income Statement Data (000's):
Year ended July 31, ----------------------------------------------------------------------- 1998(1) 1997(2) 1996(3) 1995 1994 ------- ------- ------- ---- ---- Net sales................................ $163,478 $152,021 $106,555 $86,173 $67,370 (Loss) income from continuing operations. ( 5,121 ) (7,944) 685 1,164 1,024 ------ ----- --- ----- ----- Net (loss) income........................ (9,615) (27,257) (1,835)(1) 2,268 2,287 ----- ----- ----- -----
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Basic and Diluted (Loss) Earnings Per Share: (Loss) income from continuing operations. (0.45) (1.05) 0.12 0.20 0.18 ---- ---- ---- ---- ---- Net (loss) income........................ (0.85) (2.75) (0.32) 0.40 0.43 ---- ---- ------ ---- ---- Balance Sheet Data: (000's)
July 31, -------------------------------------------------------------------------- 1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- Total assets......................... $146,904 $144,723 $119,055 $76,829 $62,529 Total liabilities.................... 121,914 110,742 87,015 56,575 44,591 Working capital...................... (5,972) 2,467 17,218 10,022 11,739 Shareholders' equity................. 15,862 24,101 22,581 20,254 17,938
- ------------- (1) Includes loss from discontinued operations for Old Connectsoft, Connectsoft, Seattle OnLine, InterGlobe, and Exodus. (2) Includes the results of InterGlobe for the 10 months following its acquisition in September 1996, Seattle OnLine for the nine months following its acquisition in November 1996 and TechStar for the seven months following its acquisition in December 1996. (3) Includes income from discontinued operations and the gain on the sale of the manufacturing business of $7.8 million, net of tax and the results of operations of Old Connectsoft for the day ended July 31, 1996 of $10.0 million, net of tax. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS This management discussion and analysis of financial conditions and results of operations 30 contains certain "forward-looking statements" as defined in the Private Securities Litigation Reform Act of 1995. Such statements relating to future events and financial performance are forward-looking statements that involve certain risks and uncertainties, detailed from time to time in the Company's various commission filings. See "Description of Business--Future Performance and Risk Factors." No assurance can be given that any such matters will be realized. General Overview Western acquired its first seven retail distribution stores in November 1992. Western expanded to 18 stores in four states by the end of fiscal 1996, to 23 stores in five states by the end of fiscal 1997, and to 27 stores in five states by the end of fiscal 1998. Western's growth has been accomplished through a combination of new store openings, strategic acquisitions, and to a lesser extent, comparable stores revenue increases. Store activity for the last three years is summarized as follows:
---------- ---------------------- ----------------- ---------------- ----------------- -------------------- Fiscal No. of Stores at No. of Stores No. of Stores No. of Stores No. of Stores at Year Beginning of Year Opened Closed Acquired End of Year ---------- ---------------------- ----------------- ---------------- ----------------- -------------------- 1996 13 3 0 2 18 ---------- ---------------------- ----------------- ---------------- ----------------- -------------------- 1997 18 2 0 3 23 ---------- ---------------------- ----------------- ---------------- ----------------- -------------------- 1998 23 1 1 4 27 ---------- ---------------------- ----------------- ---------------- ----------------- --------------------
Western plans to open and acquire additional distribution outlets for Case products, as well as for products which may be manufactured by other companies. Western's results can be impacted by the timing of, and costs incurred in connection with, new store openings and acquisitions. Results of Operations
Fiscal Year Ended July 31, Percentage of Percentage of 1998 Revenues 1997 Revenues ---- -------- ---- -------- --------------------------------------------------------------- (In Thousands) (unaudited) --------------------------------------------------------------- Net sales.................................. $163,478 100.0% $152,021 100.0% Cost of goods sold......................... $144,302 88.3% $134,180 88.3% Selling, general and administrative expenses $13,523 8.3% $23,440 15.4%
31
Interest expense........................... 4,197 2.6% 2,627 1.7% (Loss) earnings from continuing operations before income taxes and minority interest.. 1,456 0.9% (8,226) (5.4%) (Benefit) provision for income taxes....... 1,354 0.8% (703) (0.5)% Loss in unconsolidated subsidiary 4,730 2.9% -- -- Minority interest in earnings of consolidated subsidiary.................... 713 0.4% 421 0.3% Gain on sale of subsidiary................. (220) (0.1%) -- -- Discontinued operations and gain on sale of wholly owned subsidiaries (less applicable income tax benefit of $1,423 and $966) respectively............................... (4,470) (2.7%) (16,910) (11.1%) Net loss................................... (9,591) (5.9%) (24,854) (16.3%) Dividend on preferred stock................ 24 0.0% 2,403 1.6% Net (loss) available for common shareholders (9,615) (5.9%) (27,257) (17.9%)
Fiscal Year 1998 as Compared with Fiscal Year 1997 The Company reported net revenue for fiscal 1998 of $163,478,000, an increase of 9.3 percent over net revenue of $152,021,000 for fiscal 1997 and an increase of $15,348,000 (10.4%) over comparable 1997 sales of $148,130,000 excluding TechStar's revenue. Approximately $17.4 million of revenue came from stores opened or acquired in fiscal 1998 by Western. Stores opened prior to fiscal 1998 showed an overall revenue decrease of 3.9% from prior year revenue reflecting a general softening in economic conditions in the northwest, increased competitive pressures, and some weather related business interruptions. Also, $3,891,000 of sales from TechStar from December 11, 1996 (date of acquisition) to July 31, 1998 are included in fiscal 1997 sales, for which no comparable amount exists for fiscal 1998 due to the merger of TechStar and IDF which combined entities are accounted for on the equity method. 32 Overall, the Company's gross margins for fiscal 1998 and fiscal 1997 were the same at 11.7%. Western's gross margin was 11.7 percent during fiscal 1998, which is higher than their 10.7 percent gross margin during fiscal 1997. Margins increased in fiscal 1998 on new unit sales, rental, and service business. Western's Management continues to place a high priority on improving overall gross margins by working to increase higher margin service, parts, and rental revenues, focusing more sales efforts on specialty and niche product lines, and by obtaining higher prices for new equipment. Fiscal 1997 amounts included the gross margin of TechStar for the period of December 11, 1996 to July 31, 1997, which contributed 50.7% or $1,971,000 to 1997 gross margin, for which no comparable fiscal 1998 amount exists. Selling, general, and administrative expenses were $13,523,000 or 8.3 percent of revenues for fiscal 1998 compared to $23,440,000 or 15.4 percent of sales for fiscal 1997. The decrease is due largely to the 1997 amounts charged for ERD totaling $4,985,000 as well as 1997 TechStar and Arcadia expenses of $1,823,000 for the period from December 11, 1996 to July 31, 1997. The remaining decrease in selling, general, and administrative expenses resulted in part from significantly decreased professional fees and other corporate administrative expenses due to the discontinuation of the technology group and from management's cost control and efficiency improvement efforts. Net interest expense for fiscal 1998 was $4,197,000, up $1,570,000 from $2,627,000 in fiscal 1997. A total of $1,169,000 of this increase was due to an increase in Western's inventory levels, particularly inventory dedicated to rentals. In addition, effective with deliveries after July 1, 1998, Case changed factory to dealer terms lowering from 3% to 2% the cash payment discount if the dealer pays for the machine outright rather than utilizing the interest-free floor planning. Western was able to take advantage of the cash discounts on a majority of its Case purchases in fiscal 1998. In June 1997, Western obtained a $75 million inventory flooring and operating line of credit facility through Deutsche Financial Services. The facility is a three-year, floating rate facility at rates as low as 50 basis points under the prime rate. Western's management has used this facility to allow Western to take advantage of more purchase discounts and to lower the overall interest rate on borrowings. Western believes that the positive impact of the discounted cost of new inventory on gross margins has more than offset the increased interest expense related to foregoing the interest-free flooring periods. The remaining increase in net interest expense of $401,000 is primarily due to decreases in interest income earned on investments as a result of lower principle invested amounts in fiscal 1998. Loss from discontinued operations of $4.5 million for the fiscal year ended July 31, 1998 arises from the discontinuation of the operations of the Old Connectsoft, Connectsoft, Exodus Technologies, Seattle OnLine and InterGlobe subsidiaries. Effective during the third quarter of fiscal 1998 the Company discontinued the operations of these subsidiaries. Losses of $2.3 million from the discontinued operations after the measurement date of April 30, 1998 have been offset against an anticipated gain from the sale of certain assets of Connectsoft and Old 33 Connectsoft to eGlobe Inc. in the amount of $3.8 million, resulting in a deferred gain of $1.5 million which will be recognized upon the close of the asset sale in the second quarter of fiscal 1999. In fiscal year ended July 31, 1997, the Company incurred a loss from discontinued operations of $16.9 million primarily comprised of $8.2 million from its Exodus subsidiary and a net loss of $3.1 million from the operations of Old ConnectSoft. In addition, the FreeAgent development and marketing activities conducted by Connectsoft incurred an additional $2.8 million of net losses in fiscal 1997. InterGlobe incurred a net loss of $2.224 million (including $1.6 million of write-offs of goodwill and investment) on total revenues of $1,040,590 and Seattle OnLine incurred a net loss of $1.575 million on total revenues of $87,000. These losses were slightly offset by tax benefits recognized of $1.0 million. FISCAL YEAR 1997 AS COMPARED TO FISCAL YEAR 1996 (RESTATED FOR DISCONTINUED OPERATIONS)
Fiscal Year Ended July 31, ---------------------------------------------------------------- Percentage of Percentage of Revenues Revenues 1997 1996 ---- -------------- ---- -------------- ---------------------------------------------------------------- (In Thousands) (unaudited) ---------------------------------------------------------------- Net sales.................................. $152,021 100.0% $106,555 100.0% Cost of goods sold......................... $134,180 88.3% $93,906 88.1% Selling, general and administrative expenses $23,440 15.4% $9,535 8.9% Interest expense........................... 2,627 1.7% $1,137 1.1% (Loss) earnings from continuing operations before income taxes and minority interest.. (8,226) (5.4%) $1,977 1.9% (Benefit) provision for income taxes....... (703) 0.5% $890 0.8% Minority interest in earnings of consolidated subsidiary.................... 421 0.3% $402 0.4%
34
Discontinued operations and gain on sale of wholly owned subsidiaries (net of income tax benefit of ($966) and income taxes of $5,042, respectively)...................... (16,910) (11.1%) (2,520) (2.4%) Net loss................................... (24,854) (16.3%) $(1,835) (1.7%) Dividend on preferred stock................ 2,403 1.6% $ -- Net (loss) available for common shareholders (27,257) (17.9%) $(1,835) (1.7%)
35 Fiscal Year 1997 As Compared to Fiscal Year 1996 Western's revenues for the fiscal year ended July 31, 1997 increased by $41.6 million, or approximately 39% over the fiscal year ended July 31, 1996. The increase was due primarily to the contribution of the stores acquired or opened in the last year, accounting for $21.4 million (51%) of the increase in sales. Western's same store revenues increased $10.2 million or 25% for the fiscal year ended July 31, 1997, as compared to the fiscal year ended July 31, 1996. For the fiscal year ended July 31, 1997, Western's sales in all departments were up at least 25% compared to the same period in the prior year. Selling, general and administrative ("SG&A") expenses were $23.4 million (15.4% of sales) for the fiscal year ended July 31, 1997, compared to $9.5 million (8.9% of sales) for the comparative prior year period. The substantial increase in SG&A expenses of $13.9 million for the year ended July 31, 1997 were attributable to an increase at Western of $3.4 million and an increase of $5.5 million of corporate SG&A, and included the ERD bad debt of $5.0 million which had no comparable expense in 1996. Interest expense for the fiscal year ended July 31, 1997 was $2.627 million compared to $1.137 million for the fiscal year ended July 31, 1996, predominantly due to increased inventory carried by Western to support higher equipment sales level, including a significant investment in equipment dedicated to the rental fleet. The effective tax rate for fiscal 1997 was approximately 6.4%, which is lower than the 37% effective tax rate for the prior year comparative period. This decrease is a result of the recognition of a valuation allowance against the net operating loss carryforward and deferred tax assets. In fiscal year ended July 31, 1997, the Company incurred a loss from discontinued operations of $16.9 million comprised of $8.2 million from its Exodus subsidiary and a net loss of $3.1 million from the operations of Old ConnectSoft. In addition, the FreeAgent development and marketing activities conducted by Connectsoft incurred an additional $2.8 million of net losses in fiscal 1997. InterGlobe incurred a net loss of $2.224 million (including $1.6 million of write-offs of goodwill and investment) on total revenues of $1,040,590 and Seattle OnLine incurred a net loss of $1.575 million on total revenues of $87,000. These losses were offset by tax benefits recognized of approximately $1.0 million. Losses from discontinued operations for 1996 of $2.5 million are comprised of the gain from the sale of the manufacturing division of $7.8 million (net of tax of 5.0 million) offset by losses of Old Connectsoft from the day ended July 31, 1996 in the amount of $10,295. Although Western's sales increased, the increase in Western's operating and interest expenses and warranty problems with Case backhoe Equipment which Western elected to absorb, 36 resulted in net income of approximately $1.0 million in fiscal 1997, as compared with $2.0 million in the prior year. As a result of the foregoing, in fiscal year ended July 31, 1997, the Company reported a consolidated net loss of $27.3 million on total net consolidated sales of approximately $154.5 million. Liquidity and Capital Resources General During the fiscal year ended July 31, 1998 the Company's cash, cash equivalents and marketable debt securities decreased by $14,491,000 primarily due to the repayment of its secured line of credit and the standby letter of credit with North Fork Bank. The Company's cash, cash equivalents and marketable debt securities of $7,811,000 as of July 31, 1998 and available credit facilities are considered sufficient to support current or somewhat higher levels of operations for at least the next twelve months. The Company seeks to provide a high current return on its investments of cash and cash equivalents while preserving both liquidity and capital. The established policy guidelines for its investment portfolio include investments that include United States Treasury securities, United States government agency obligations, deposit-type obligations of United States banking institutions, repurchase agreements, United States denominated A1 grade commercial paper, United States money market funds and interests in mutual funds that invest in the above listed instruments. Concentration of the portfolio is limited to not more than 20% of the investment portfolio in the securities of any one bank, corporation or non-government issuer. The investments chosen reflect this policy by investing substantially all cash and cash equivalents in money market funds, United States Treasury Securities and United States denominated A1 grade commercial paper. On October 31, 1997, the Company repaid the entire balance then due to Northfork Bank of $14,410,000. Such balance consisted of $9,999,000 under the advised line of credit and $4,411,000 under the standby letter of credit. Western Western's primary needs for liquidity and capital resources are related to its inventory for sale and its rental and lease fleet inventories, store openings, and acquisitions of additional stores. Western's primary source of internal liquidity has been its profitable operations. As more fully described below, Western's primary sources of external liquidity are equipment 37 inventory floor plan financing arrangements provided to Western by the manufacturers of the products Western sells, and Deutsche Financial Services ("DFS") and, with respect to acquisitions, secured loans from Case. Under inventory floor planning arrangements the manufacturers of products sold by Western provide interest free credit terms on new equipment purchases for periods ranging from one to twelve months, after which interest commences to accrue monthly at rates ranging from zero percent to two percent over the prime rate of interest. Principal payments are typically made under these agreements at scheduled intervals and/or as the equipment is rented, with the balance due at the earlier of a specified date or sale of the equipment. At July 31, 1998, Western was indebted under manufacturer provided floor planning arrangements in the aggregate amount of $11,038,000. As of September 30, 1998, approximately $10,836,000 was outstanding under these manufacturer provided floor plan arrangements. In order to take advantage of the cash discount offered by Case, to provide financing beyond the term of applicable manufacturer provided floor plan financing, or as alternatives to manufacturer provided floor plan financing arrangements, Western had entered into a separate secured floor planning line of credit with Seafirst Bank ("Seafirst"). The Seafirst line of credit was entered into in June 1994 and was renewed on September 1, 1997. This was a $22,000,000 line of credit which could be used to finance new and used equipment or equipment to be held for rental purposes. Western has had no outstanding balance on the Seafirst line of credit since March 1998. On July 1, 1998, the term of the credit line expired without renewal at the mutual agreement of Seafirst and Western. In June 1997, Western obtained a $75 million inventory flooring and operating line of credit through Deutsche Financial Services ("DFS"). The DFS credit facility is a three-year, floating rate facility based on prime with rates between 0.50% under prime to 1.00% over prime depending on the amount of total borrowing under the facility. Amounts are advanced against Western's assets, including accounts receivable, parts, new equipment, rental fleet, and used equipment. Western expects to use this borrowing facility to lower flooring related interest expense by using advances under such line to finance inventory purchases in lieu of financing provided by suppliers, to take advantage of cash purchase discounts from its suppliers, to provide operating capital for further growth, and to refinance some its acquisition related debt at a lower interest rate. As of July 31, 1998, approximately $75,886,000 was outstanding under the DFS credit facility. As of September 30, 1998, approximately $67,855,000 was outstanding under this facility. At July 31, 1998, Western was in technical default of the leverage covenant in the Deutsche Financial Services Loan Agreement. Western obtained a waiver letter for the period July 31, 1998 through September 30, 1998. There is no guarantee that Deutsche Financial Services will not call this debt at any time after September 30, 1998. Western and DFS have reached preliminary agreement on increasing this credit facility to $100,000,000. Finalization of this increase is expected by November 30, 1998. Amounts owing under the DFS credit facility are secured by inventory purchases financed by DFS, as well as all proceeds from their sale or 38 rental, including accounts receivable thereto. During the year ended July 31, 1998, Western's cash and cash equivalents increased by $680,000 primarily due to the increased borrowing from DFS. Western had positive cash flow from operating activities during the year of $8,342,000 reflecting net income for the year after adding back depreciation and amortization. Purchases of fixed assets during the period were related mainly to the opening of new distribution outlets and the Yukon acquisition. Inventory; Effects of Inflation and Interest Rates; General Economic Conditions Distribution Business Controlling inventory is a key ingredient to the success of an equipment distributor because the equipment industry is characterized by long order cycles, high ticket prices, and the related exposure to "flooring" interest. Westerns interest expense may increase if inventory is too high or interest rates rise. The Company manages its inventory through company-wide information and inventory sharing systems wherein all locations have access to Western's entire inventory. In addition, Western closely monitors inventory turnover by product categories and places equipment orders based upon targeted turn ratios. All of the products and services provided by Western are either capital equipment or included in capital equipment, which are used in the construction, agricultural, and industrial sectors. Accordingly, Western's sales are affected by inflation or increased interest rates which tend to hold down new construction, and consequently adversely affect demand for the construction and industrial equipment sold and rented by Western. In addition, although agricultural equipment sales are less than 5% of Western's total revenues, factors adversely affecting the farming and commodity markets also can adversely affect Western's agricultural equipment related business. Western's business can also be affected by general economic conditions in its geographic markets as well as general national and global economic conditions that affect the construction, agricultural, and industrial sectors. An erosion in North American and/or other countries' economies could adversely affect the Company's business. Market specific factors could also adversely affect one or more of Western's target markets and/or products. The Technology Business In fiscal 1998, the Company discontinued the operations of Connectsoft, Old Connectsoft, Seattle OnLine, InterGlobe and Exodus. On July 10, 1998, the Company entered into an agreement to sell substantially all of the assets of its Connectsoft subsidiary, including the network operations center to eGlobe, Inc., formerly known as Executive TeleCard, Ltd. ("eGlobe"). As consideration for the assets, eGlobe will assume up to $4,500,000 of Connectsoft 39 liabilities and leases, most of which have been guaranteed by the Company. Although eGlobe will be responsible for payment of those assumed liabilities, the assumption of such liabilities will not relieve the Company from its guarantees until such liabilities have been paid. The Company will also receive as additional consideration from eGlobe, on the earlier of two years from the closing of the sale or if eGlobe sells the Connecsoft business prior to two years, 7.5% of the increase in value of the Connectsoft business. The Company anticipates that the transaction will close in November 1998, however, there can be no assurance that the transaction will close in such time or at all. On November 4, 1997, Artour Baganov, the former principal stockholder of InterGlobe, tendered his resignation as a member of the Board of Directors of the Company and InterGlobe. The Company and InterGlobe reached an agreement on July 22, 1998 with Mr. Baganov under which he agreed to terminate his employment agreement with InterGlobe and cancel his 698,182 performance options. In consideration, the Company and InterGlobe paid Mr. Baganov an aggregate of $300,000 in full settlement of obligations under his employment agreement and released such stockholder from his non-competition agreement with InterGlobe. Mr. Baganov also agreed to vote his 550,000 shares of Company Common Stock in favor of management's nominees for election to the Company's Board of Directors. In September 1997, the Company agreed to pay the former principal stockholder of Seattle OnLine $1.5 million pursuant to the settlement of an arbitration proceeding brought by such stockholder in Seattle, Washington. $500,000 of such amount was paid in October 1997 and the $1.0 million balance was paid in November 1997. Under the terms of the settlement, the Company also issued warrants to purchase 150,000 shares of Company Common Stock at $6.25 per share to such person and his legal counsel. As part of the settlement, warrants to purchase 305,000 Company shares issued at the time of the acquisition of Seattle OnLine were canceled. TechStar and Arcadia Effective December 11, 1996, the Company acquired TechStar, formerly known as Broadcast Tower Sites, Inc., pursuant to a merger transaction (the "TechStar Merger"). TechStar is engaged in providing site acquisition, zoning, architectural and engineering services, as well as consulting services, to the wireless telecommunications industry. Pursuant to the terms of the TechStar Merger, the former TechStar shareholders received an aggregate of 507,246 shares of Company Common Stock, $780,000 was paid in cash and the Company delivered three year notes aggregating $600,000, bearing interest at the Citibank, N.A. prime rate, and payable in installments of $100,000, $200,000 and $300,000 on each of November 30, 1997, 1998 and 1999 (the "TechStar Notes"). In a related transaction, in December 1996 the Company also entered into an agreement to acquire 100% of the capital stock of Arcadia, a company formed for the purpose of providing 40 consulting services to clients in the wireless telecommunications industry, and paid $220,000 as a deposit on execution of the Arcadia agreement. The Company completed the Arcadia acquisition in April 1997, at which time it issued an aggregate of 192,754 shares of Company Common Stock. Following the Arcadia acquisition, Arcadia was merged with and into the Company. Arcadia has had no operations, and has no material assets other than its employment relationship with Solon Kandel, its President and sole stockholder. Mr. Kandel became a director of the Company in April 1997 and subsequently resigned his directorship in August 1997 upon consummation of the IDF Merger. In January 1997, Sergio Luciani, a former stockholder and currently Executive Vice President and Chief Financial Officer of TechStar was appointed as a member of the Board of Directors of the Company. Mr. Luciani resigned his Company directorship upon consummation of the transaction with IDF in September 1997. In August 1997, the Company sold TechStar to IDF in consideration for approximately 6.1 million shares of IDF, representing approximately 63% of its outstanding common stock, before dilution resulting from completion of a $3.0 million private placement of IDF notes convertible into IDF common stock at $1.25 per share. As part of such transaction, the employment agreements and the 780,000 performance options of each of Messrs. Luciani, Moskona and Kandel were canceled, as were the 120,000 performance options granted to other TechStar employees. In addition, IDF agreed to make the $300,000 payment due in December 1999 under the TechStar Notes. Messrs. Luciani and Kandel agreed to resign as members of the Company Board of Directors and became senior executive officers of IDF. During the year ended July 31, 1998, IDF sold, through GV Capital Inc., a total of $3,000,000 of IDF's five year Convertible Notes convertible into IDF Series A and C Preferred Stock at $1.25 per share which were subsequently converted into 1,400,000 shares of IDF Series A Preferred Stock and 1,080,000 shares of IDF Convertible Series C Preferred stock. The Series A, B and C Convertible Preferred Stock of IDF have voting rights that are the same as IDF Common Stock, thus subsequent to the conversion of said Notes, the Company owns approximately 48% of the outstanding voting capital stock as of July 31, 1998. As a result of the decrease in the ownership percentage by the Company to less than 50%, the Company has accounted for the results of the operations of IDF using the equity method. Loss in Connection with ERD Credit Guaranty In September 30, 1997, ERD Waste Corp. ("ERD") filed for reorganization under Chapter 11 of the federal bankruptcy laws. In May 1996, the Company had provided ERD with a $4.4 million standby bank letter of credit in favor of Chase Bank (formerly, Chemical Bank), a senior secured creditor of ERD. In addition, in February 1997, the Company advanced $500,000 in cash to ERD. Robert M. Rubin, the Chairman and Chief Executive Officer of the Company, is also a 41 principal stockholder and Chairman of ERD. On October 29, 1997, Chase Bank drew on the Company provided letter of credit. As a result, the Company became directly liable to Northfork Bank, the issuer of the letter of credit, for the $4.4 million amount of such draw; and on October 31, 1997 retired such obligation. Although the Company is now a creditor in the ERD reorganization, holding approximately $5.0 million of claims and holds a lien on certain ERD assets, by reason of the affiliation of Mr. Rubin with both corporations, the lien was not sustained in the reorganization proceeding resulting in the Company becoming a general unsecured creditor of ERD. Although the Company does not believe that Chase Bank acted in a commercially reasonable manner and is currently considering its legal options, as a result of the foregoing development, the Company recorded a $5.0 million net loss in connection with the ERD transaction for the year ended July 31, 1997. Mr. Rubin has personally guaranteed $1.7 million of the obligation to the Company. The matter is currently pending in the bankruptcy court. See "Executive Compensation-Compensation Committee Interlocks and Insider Participation." Impact of the Year 2000 Issue The Year 2000 issue is the result of computer programs being written using two digits rather than four to define the applicable year. Any of the Company's computer programs that have date sensitive software may recognize a date using "00" as the year 1900 rather than the year 2000. This could result in a system failure or miscalculations causing disruptions of operations, including, among other things, a temporary inability to process transactions, send invoices, or engage in similar normal business activities. Western has determined that it will be required to modify or replace significant portions of its software so that its computer systems will properly utilize dates beyond December 31, 1999. Western presently believes that with modifications to existing software and conversions to new software, the Year 2000 issue can be mitigated. However, if such modifications and conversions are not made, are not timely completed, or do not work as anticipated, the Year 2000 issue could have a material impact on the operations of Western. Western has a plan in place to contact all of its significant suppliers to determine the extent to which Western is vulnerable to those third parties' failure to remediate their own Year 2000 issues. There can be no guarantees that the systems of third parties on which Western's systems rely or which influence the business of Western's customers will be timely remediated, that any attempted remediation will be successful, or that such conversions would be compatible with Western's systems. Western has not yet determined the projected costs of Western's Year 2000 project and cannot yet determine whether Western has any exposure to contingencies related to the Year 2000 issue for the products it has previously sold. Western will utilize both internal and external resources to reprogram, or replace, and test Western's software for Year 2000 modifications. Western plans to complete its Year 2000 42 project by July 31, 1999. Funding for the costs of the program are anticipated to come from operating cash flows. Western's current plan to complete the Year 2000 modifications are based on management's best estimates, which were derived using numerous assumptions of future events including the continued availability of certain resources, third party modification plans, and the ability to meet projected time lines. There can be no guarantee that these estimates will be achieved and actual results could differ materially from those plans. Specific factors that might cause such material differences include, but are not limited to, the availability and cost of personnel trained in this area, the ability to locate and correct all relevant computer codes, and other uncertainties. ITEM 7A. QUANTITATIVE AND QUALITATIVE MARKET RISK Not Applicable ITEM 8. FINANCIAL STATEMENTS
Page Number ------ Financial Statements: Report of Independent Accountants..........................................................................................F - 2 Consolidated Balance Sheets as of July 31, 1998 and 1997...............................................................................F - 3 Consolidated Statements of Operations for the years ended July 31, 1998, 1997 and 1996...................................................................F - 4 Consolidated Statements of Stockholders' Equity for the years ended July 31, 1998, 1997 and 1996.............................................................F - 5 Consolidated Statements of Cash Flows for the years ended July 31, 1998, 1997 and 1996.........................................................................F - 6 Notes to Consolidated Financial Statements...........................................................F - 7
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE 43 None 44 PART III ITEM 10. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS, COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT. Officers, Directors and Key Employees The following table sets forth information with respect to directors, nominees for directors, executive officers and key employees of the Company as of November 12, 1998. There are no pending legal proceedings to which any director, nominee for director or executive officer of the Company is a party adverse to the Company.
Name Age Position ----- ---- -------- Robert M. Rubin................................. 58 Chairman of the Board of Directors, President and Chief Executive Officer C. Dean McLain.................................. 43 Director and Executive Vice President of the Company; President and Chief Executive Officer of Western 56 Howard Katz..................................... Executive Vice President Chief Operating Officer and Director and President of Connectsoft David M. Barnes................................. 55 Vice President of Finance, Chief Financial Officer and Director
Robert M. Rubin. Mr. Rubin has served as the Chairman of the Board of Directors of the Company since May, 1991, and was its Chief Executive Officer from May 1991 to January 1, 1994. Between October, 1990 and January 1, 1994, Mr. Rubin served as the Chairman of the Board and Chief Executive Officer of AUG and its subsidiaries; from January 1, 1994 to January 19, 1996, he served only as Chairman of the Board of AUG and its subsidiaries. From January 19, 1996, Mr. Rubin has served as Chairman of the Board and President and Chief Executive Officer of the Company. Mr. Rubin was the founder, President, Chief Executive Officer and a Director of Superior Care, Inc. ("SCI") from its inception in 1976 until May 1986. Mr. Rubin continued as a director of SCI (now known as Olsten Corporation ("Olsten") until the latter part of 1987. Olsten, a New York Stock Exchange listed company, is engaged in providing home care 45 and institutional staffing services and health care management services. Mr. Rubin was Chairman of the Board, Chief Executive Officer and is a stockholder of ERD Waste Technology, Inc., a diversified waste management public company specializing in the management and disposal of municipal solid waste, industrial and commercial non-hazardous waste and hazardous waste. In September 1997, ERD filed for protection under the provisions of Chapter 11 of the federal bankruptcy act. Mr. Rubin is a former director and Vice Chairman, and currently a minority stockholder, of American Complex Care, Incorporated, a public company formerly engaged in providing on-site health care services, including intra-dermal infusion therapies. In April 1995, American Complex Care, Incorporated's operating subsidiaries made assignments of their assets for the benefit of creditors without resort to bankruptcy proceedings. Mr. Rubin is also the Chairman of the Board of both Western and IDF. The Company owns approximately 60.5% of the outstanding common stock of Western and approximately 58% of the outstanding common stock of IDF. Mr. Rubin owns approximately 13% of the fully-diluted IDF common stock. Mr. Rubin is also a director and minority stockholder of Diplomat Direct Marketing Corporation, a public company principally engaged in the women's apparel catalog retailing business and Medi-Merg, Inc., a Canadian management company for hospital emergency rooms and out-patient facilities. Mr. Rubin is a minority stockholder and was a director, until he resigned in 1998, of Response USA, Inc., a public company engaged in the sale and distribution of personal emergency response systems. C. Dean McLain. Mr. McLain has served as an Executive Vice President of the Company since March 1, 1993, as a director of the Company since March 7, 1994 and President of Western since June 1, 1993. From 1989 to 1993, Mr. McLain served as Manager of Privatization of Case Corporation. From 1985 to 1989, Mr. McLain served as General Manager of Lake State Equipment, a distributor of John Deere construction equipment. Mr. McLain holds a B.S. degree in Business and Economics, and a Master's of Business Administration, from West Texas State University. David M. Barnes. Mr. Barnes has been Chief Financial Officer of the Company since May 15, 1996, and Vice President Finance and director since November 8, 1996. Mr. Barnes has been a director of Consolidated Stainless, Inc., a manufacturer and distributor of stainless steel products, since June 21, 1994. From April 1990 until July 1990, Mr. Barnes also served as an officer and director of Intelcom Data Systems, Inc., which engages in the design and development of software for the foreign currency exchange and banking industries. From October 1987 until May 1989, Mr. Barnes was Vice President of Finance at U.S. Home Care Corp., a home health care provider. From April 1983 until September 1987, Mr. Barnes was Vice President of Finance and Administration of Lifetime Corporation. From 1975 to 1983, Mr. Barnes was Executive Vice President of Beefsteak Charlies, Inc. Mr. Barnes served as a Director of Universal Self Care, Inc., a distributor and retailer of products and services principally for diabetics, from May 1991 to June 1995 and since 1992 has been a Director, Executive Officer and a minority stockholder of American Complex Care, Incorporated, a public company formerly engaged in providing on-site health care services, including intradermal infusion therapies. In 46 April 1995, American Complex Care, Incorporated's operating subsidiaries made assignments of their assets for the benefit of creditors without resort to bankruptcy proceedings. Howard Katz. Mr. Katz has been Executive Vice President of the Company since April 15, 1996. From December 1995 through April 15, 1996, Mr. Katz was a consultant for, and from January 1994 through December 1995 he held various executive positions, including Chief Financial Officer from December 1994 through December 1995, with National Fiber Network (a fiber optics telecommunications company). From January 1991 through December 1993, Mr. Katz was the President of Katlaw Construction Corp., a company that provides general contractor services to foreign embassies and foreign missions located in the United States. Prior to joining Katlaw Construction Corp., Mr. Katz was employed as a management consultant by Coopers and Lybrand, LLP and as a divisional controller for several large public companies. ITEM 11. EXECUTIVE COMPENSATION SUMMARY COMPENSATION TABLE The following table sets forth the amount of all compensation paid by the Company for services rendered during each of the three fiscal years of the Company ended July 31, 1998, 1997 and 1996 to each of the Company's most highly compensated executive officers and key employees whose total compensation exceeded $100,000, and to all executive officers and key employees of the Company as a group.
Annual Compensation Long Term Compensation ------------------------------------ ----------------------- Other Restric Annual -ted (Payouts All Other Com- Stock Options LTIP Com- Name and Principal Year Salary Bonus pensation Awards /SARs Payouts pensation - ------------------- ---- ------- ------ ---------- ---------- -------- ------- ---------- Robert M. Rubin 1998 $350,000 $0 $0 $0 0 $0 $0 Chairman, President 1997 325,000 0 $0 $0 0 $0 $0 and Chief Executive 1996 300,000 50,000 $0 $0 450,000 $0 $0 Officer
47
Howard Katz 1998 $197,000 -- $0 $0 0 $0 $0 Executive Vice 1997 131,968 -- $0 $0 200,000 $0 $0 President and 1996 -- -- $0 $0 150,000 $0 $0 Director David M. Barnes 1998 $156,000 -- $0 $0 0 $0 $0 Chief Financial 1997 129,807 -- $0 $0 100,000 $0 $0 Officer and Director 1996 -- -- $0 $0 100,000 $0 $0 C.Dean McLain 1998 $280,000 $68,935 $0 $0 0 $0 $0 Executive Vice 1997 268,587 18,658 $0 $0 0 $0 $0 President and 1996 250,000 84,868 $0 $0 150,000 $0 $0 Director; Chairman & President of Western
STOCK OPTION PLANS Option Grants in Fiscal Year 1998 No options were issued in fiscal year 1998. The following table provides information concerning the exercise of stock options during the last completed fiscal year by each executive officer named in the Summary Compensation Table, and the fiscal year-end value of unexercised options held by each such person. 48
Aggregated Options Exercised in Last Fiscal Year and Fiscal Year-End Option Values -------------------------------- Value of Number of Unexercised Unexercised In-the-Money Options/SARs Options/SARs Shares at FY-End at FY-End Acquired on Value Exercisable/ Exercisable/ Name Exercise (#) Realized Unexercisable Unexercisable - ------ ------------- ----------------- ---------------------- ---------------- Robert Rubin -0- -0- 560,000 (exercisable) $0 (exercisable) Howard Katz -0- -0- 316,667 (exercisable) $0 (exercisable) David Barnes -0- -0- 158,333 (exercisable) $0 (exercisable) C. Dean McLain 112,000 718,500 257,750 (exercisable) $0 (exercisable)
Employment, Incentive Compensation and Termination Agreements In November 1994, Robert M. Rubin entered into a three-year employment and bonus compensation agreement with the Company, retroactive to August 1, 1994. Under the terms of that agreement, Mr. Rubin serves as Chairman of the Board of the Company and its subsidiaries through and including July 31, 1997. Mr. Rubin receives an annual base salary of $150,000 per annum. Such base salary shall be increased by $10,000 for the fiscal year ending July 31, 1996 and by $15,000 for the fiscal year ending July 31, 1997. In addition, Mr. Rubin was entitled to a guaranteed bonus of $50,000 plus an additional annual incentive bonus payment equal to (i) $5,000 for each $.01 increase in net earnings per share above $.55 per share for the fiscal year ending July 31, 1995, (ii) $5,000 for each $.01 increase in net earnings per share above $.60 per share for the fiscal year ending July 31, 1996 and (iii) $5,000 for each $.01 increase in net earnings per share above $.65 per share for the fiscal year ending July 31, 1997. Upon completion of Western's initial public offering, Mr. Rubin's employment agreement with the Company was amended to (i) eliminate his guaranteed annual bonus, and (ii) limit his annual incentive bonus to $50,000 per annum for each of fiscal years ended July 31, 1996 and 1997, and made it payable only in the event that the consolidated net income of the Company, excluding the net income of Western, shall exceed $1,500,000 in each of such fiscal years. Following the amendment of his employment agreement with the Company, Western entered into a separate employment agreement with Mr. Rubin, effective June 14, 1995 and expiring July 31, 1998. Pursuant to such agreement, Mr. Rubin serves as Chairman of the Board 49 of Western and shall receive an annual base salary of $150,000, payable at the rate of $12,500 per month from the effective date of such agreement. In addition to his base annual salary, Mr. Rubin shall be entitled to receive an annual bonus equal to $50,000 per annum, payable only in the event that the "consolidated pre-tax income" of Western (as defined) shall be in excess of $3,000,000 for the fiscal year ending July 31, 1996, $3,500,000 for the fiscal year ending July 31, 1997, and $4,000,000 for the fiscal year ending July 31, 1998, respectively. Under the terms of his employment agreement with Western, Mr. Rubin is only obligated to devote a portion of his business and professional time to Western (estimated at approximately 20%). The term "consolidated pre-tax income" is defined as consolidated net income of the Company and any subsidiaries of Western subsequently created or acquired, before income taxes and gains or losses from disposition or purchases of assets or other extraordinary items. The Company has entered into an amended and restated employment agreement with Mr. Rubin, dated as of June 3, 1996, to extend the term of Mr. Rubin's employment through July 31, 2001 (the "Restated Agreement"). The Restated Agreement provides for a base salary payable to Mr. Rubin of $175,000 for the fiscal year ending July 31, 1997, $200,000 for the fiscal year ending July 31, 1998, $225,000 for the fiscal year ending July 31, 1999, and a base salary for the fiscal years ending July 31, 2000 and July 31, 2001 as determined by the Compensation Committee of the Company's Board of Directors and ratified by a majority of the entire Board of Directors of the Company (other than the employee). The base salary in each of the fiscal years ending July 31, 2000 and 2001 will not be less than the annual base salary in effect in the immediately preceding fiscal year, plus an amount equal to the increase in the annual cost of living as published by the Bureau of Labor Statistics of the United States Department of Labor for wage earners in the New York metropolitan area measured over the course of the immediately preceding fiscal year. The Restated Agreement also provides for incentive bonuses to be paid to Mr. Rubin of (i) $75,000 on November 1, 1997, if the net income of the Company, including all of its consolidated subsidiaries other than Western Power & Equipment Corp., as determined by the Company's independent auditors using generally accepted accounting principles, consistently applied (the "Corporations' Net Income"), is greater than or equal to $2,000,000 for the fiscal year ended July 31, 1997; (ii) $100,000 on November 1, 1998 if the Corporations' Net Income is greater than or equal to $2,500,000 for the fiscal year ended July 31, 1998; and (iii) $125,000 on November 1, 1999 if the Corporations' Net Income is greater than or equal to $3,000,000 for the fiscal year ended July 31, 1999. Incentive compensation for each of the fiscal years ending July 31, 2000 and July 31, 2001 shall be as determined by the Compensation Committee of the Company's Board of Directors and ratified by a majority of the entire Board of Directors of the Company (other than the employee). On January 19, 1996, as a result of the Hutchinson Transaction, John Shahid, former President and Chief Executive Officer of the Company, and the Company entered into a Termination Agreement whereby Mr. Shahid resigned as an officer and director of the Company and each of its subsidiaries in consideration for the payment of an aggregate of $815,833, representing salary payments under his Employment Agreement though December 31, 1998, as 50 well as a bonus payment for fiscal year 1996 in the amount of $90,000. The Termination Agreement also provides that the Company shall retain Mr. Shahid as a consultant for a period of three years, commencing April 1, 1996, for which consulting services he will be paid an aggregate of $200,000 in equal quarterly installments. Prior to the Western 1995 initial public offering, C. Dean McLain served as President and Chief Executive Office of Western and Executive Vice President of the Company pursuant to the terms of an employment agreement with the Company effective March 1, 1993, which was to terminate on July 31, 1998. Pursuant to his employment agreement, in fiscal year 1995 Mr. McLain received a base salary of $148,837 and the maximum $75,000 bonus provided for in such fiscal year. Such agreement entitled Mr. McLain to scheduled increases in his base salary up to $172,300 per year during the fiscal year ending July 31, 1998. The terms of such employment agreement also provided for the issuance to Mr. McLain of an aggregate of 20,000 shares of the Company's Common Stock at $.01 per share. In addition, Mr. McLain received options to acquire an aggregate of 45,000 shares of the Company's Common Stock at fair market value ($4.75 per share) on the date of grant under the Company's 1991 Stock Option Plan, and additional options under the Company's 1991 Stock Option Plan to purchase 150,000 shares of Company Common Stock at fair market value ($5.50 per share) on the date of grant. These options have since been repriced to $3.125 per share. Effective as of August 1, 1995, Mr. McLain's employment agreement with the Company was terminated and he entered into an amended employment agreement with Western, expiring July 31, 2005. Pursuant to such agreement, Mr. McLain serves as President and Chief Executive Officer of Western and will receive an annual base salary, payable monthly, of $250,000 through the end of fiscal 1996, $265,000 per annum in fiscal 1997, $280,000 per annum in fiscal 1998, $290,000 per annum in fiscal 1999, and $300,000 per annum in fiscal 2000. For each of the fiscal years ending 2001, 2002, 2003, 2004 and 2005, inclusive, Mr. McLain's base salary shall be determined by the Compensation Committee of Western and ratified by the full Board of Directors of Western. In each of the five fiscal years from 2001 through 2005, such base salary shall not be less than the annual base salary in effect in the immediately preceding fiscal year plus a cost of living adjustment. In addition, Mr. McLain will be entitled to receive bonus payments in each of the five fiscal years ending 1996 through 2000, inclusive, equal to 5% of such fiscal year consolidated pre-tax income of Western in excess of $1,750,000 in each such fiscal year (the "Incentive Bonus"); provided, that the maximum amount of the Incentive Bonus payable by Western to Mr. McLain shall not exceed $150,000 in any such fiscal year, without regard to the amount by which the Company's consolidated pre-tax income shall exceed $1,750,000 in each of such fiscal years. For each of the fiscal years ending 2001 through 2005, Mr. McLain's incentive bonus shall be determined by the Compensation Committee of Western's Board of Directors and ratified by Western's full Board of Directors. The maximum annual incentive bonus which Mr. McLain shall be entitled to receive under his Employment Agreement shall not be less than $150,000. As used in Mr. McLain's Employment Agreement, the term "consolidated pre-tax income" is defined as consolidated net income of Western and any 51 subsidiaries of Western subsequently created or acquired, before the Incentive Bonus, income taxes and gains or losses from disposition or purchases of assets or other extraordinary items. Under the terms of his amended employment agreement, the 150,000 stock options, exercisable at $6.50 per share, awarded to Mr. McLain under Western's 1995 Stock Option Plan in March 1995, were canceled and on August 1, 1995 Mr. McLain was granted options to purchase 300,000 shares of Western common stock at $6.00 per share, the closing sale price of the Company's common stock on August 1, 1995. As the number of shares underlying Western's 1995 Stock Option Plan was at that time insufficient for the full granting of such options, the options to purchase 300,000 shares were granted on August 19, 1995 subject to stockholder approval of the amendment of the 1995 Stock Option Plan (the "Plan"), which was approved by the stockholders of Western on December 6, 1995. Such amendment to the Plan added 550,000 shares of Common Stock to be available for option grants under the Plan. The granting of all stock to Mr. McLain pursuant to his amended employment agreement was ratified at Western's 1995 Annual Meeting. The Western options granted to Mr. McLain were repriced to $4.50 per share in December 1995. In the event that Western does not meet the accumulated consolidated pre-tax income levels described above, Mr. McLain shall still be entitled to options to purchase the 125,000 Western shares should the accumulated consolidated pre-tax income of Western for the five fiscal years ending 1996 through 2000 equal or exceed $16,000,000. In the event such additional incentive stock options become available to him, Mr. McLain may exercise such options beginning August 1, 1996 and ending July 31, 2005 at $4.50 per share. Mr. McLain's employment agreement also provides for fringe benefits as are customary for senior executive officers in the industry in which the Company operates, including medical coverage, excess life insurance benefits and use of an automobile supplied by the Company. The Company hired Howard Katz as Executive Vice President effective April 15, 1996. Mr. Katz received a base salary of $185,000 per annum, payable bi-weekly. Effective July 31, 1998, Mr. Katz and the Company entered into a severance agreement which provides for payments aggregating $225,000 over a three year period and the continuation of certain benefits over the same period. Mr. Katz also continues to be a director of the Company and also supervises the operations of Connectsoft through the date of the closing of the sale of Connectsoft's assets to eGlobe. The Company hired David M. Barnes as its Chief Financial Officer effective May 15, 1996. Mr. Barnes received a base salary of $150,000 per annum, payable bi-weekly. Effective July 23, 1998, Mr. Barnes and the Company entered into a severance agreement which provides for payments aggregating $75,000 over a twelve month period and the continuation of certain benefits over six to twelve months. Mr. Barnes agreed to be available during a transition period on a consulting basis and is paid $75 per hour for such services. Mr. Barnes also continues to be a director of the Company. 52 In December 1995, the Company amended each of its then outstanding employee stock option plans in anticipation of the consummation of the Hutchinson transaction. Under the old terms of the plans, all options granted to employees would have terminated within ninety days of such employees' termination of employment with the Company or any of its subsidiaries. As a majority of the Company's employees, other than those of Western, were to be terminated upon the consummation of the Hutchinson transaction, the Company felt that it was in its best interests to amend the Plans in order to extend the expiration dates of these options and to allow for such options to immediately vest in full upon the consummation of the Hutchinson transaction. All of the options granted under the Plans became exercisable until January 19, 1998 at which time, the options held by individuals no longer employed by the Company or its subsidiaries terminated. Options which continue to be held by Company employees shall revert back to their old vesting terms and original expiration dates. One effect of these amendments is to change the federal income tax treatment of incentive options held by non-employees of the Company. Upon exercise, these options shall be treated as non-qualified stock options for federal income tax purposes. As a result of such option exercise period extension, the Company incurred additional compensation expense for the fiscal year ended July 31, 1996 in the amount of $332,293. Such amount is equal to the product of the number of options whose exercise periods were extended and the aggregate difference between the exercise price of each extended option and the market price for a share of Company Common Stock on January 19, 1996 (the closing date of the Hutchinson Transaction, the day that the option extension became effective). Compensation Committee Interlocks and Insider Participation During the fiscal year ended July 31, 1998, the Compensation Committee of the Company's Board of Directors (the "Compensation Committee") did not meet. During this time the Company's Board of Directors decided all compensation matters relating to the Company's executive officers. Mr. Rubin's annual compensation identified in the Summary Compensation Table was provided for under his employment agreements entered into in July 1991 and August 1994, and his amended and restated employment agreement dated as of June 3, 1996, which were approved by the Company's Board of Directors. In June 1995, following completion of Western's initial public offering, Mr. Rubin's 1994 employment agreement with the Company was amended to (i) eliminate his guaranteed annual bonus, and (ii) limit his annual incentive bonus to $50,000 per annum for each of fiscal years ended July 31, 1996 and 1997, and payable only in the event that the consolidated net income of the Company, excluding the net income of Western, shall exceed $1,500,000 in each of such fiscal years. Mr. Rubin also entered into a separate employment agreement with Western. See "Executive Compensation-Employment, Incentive Compensation and Termination Agreements." Mr. McLain's annual compensation was provided for under his employment agreement dated February 12, 1993, which was approved by vote of the Company's Board of Directors. Effective as of August 1, 1995, Mr. McLain's employment agreement with the Company was terminated and he entered into an amended employment agreement with Western. See "Executive Compensation-Employment, Incentive 53 Compensation and Termination Agreements." The Company's Audit and compensation committee are comprised of Messrs. Rubin and Katz. No director of the Company receives any directors fees for attendance at Board meetings, although they do receive reimbursement for actual expenses of such attendance. In October 1991, Mr. Rubin agreed to waive rights inherent in his ownership of the Company's Series A Preferred Stock to designate a majority of the members of the Company's Board of Directors and to use his best efforts to cause the Company to amend its Certificate of Incorporation so as to eliminate all rights of Mr. Rubin or any other holder of the Series A Preferred Stock to designate a majority of the members of the Board of Directors. In partial consideration for his agreement to waive and modify such rights and privileges, the Company issued to Mr. Rubin for $200,000 ($2.63 per share) an aggregate of 76,000 additional shares of Company Common Stock. Mr. Rubin paid for such shares by delivering to the Company his full recourse 10% promissory note, which note is secured by collateral other than the shares acquired (certain marketable securities in corporations other than the Company) which has a fair market value in excess of $200,000. This note was payable over five years, commencing March 31, 1992, together with accrued interest, in twenty equal quarterly principal installments of $10,000 each. In March 1993, the Company agreed to amend Mr. Rubin's note to be payable in a single payment 36 months from the date of issuance at 8% interest per annum. In connection with such amendment, Mr. Rubin agreed to apply no less than 50% of any bonus received by him against the outstanding principal of the installment note. On November 7, 1996, the Board of Directors of the Company agreed to extend the maturity date of such note to March 31, 1999. On January 26, 1994, the Company entered into a month-to-month public relations consulting agreement with Gro-Vest Management Consultants, Inc. ("Gro-Vest Consultants"), a company one of whose principal stockholders, directors and officers is Lawrence Kaplan, who resigned as a director of the Company in 1998. Commencing on March 1, 1994, the Company became obligated to pay $3,000 per month to Gro-Vest Consultants for its services under such agreement, subject to termination of the agreement on 30 days' notice provided by either party thereto. An aggregate of $26,000 was paid to Gro-Vest Consultants in the 1997 fiscal year and none was paid in fiscal 1998. In June 1996, the Company agreed to loan to Mr. Rubin up to $1,200,000, at an interest rate equal to one percent above the fluctuating Prime Rate offered by Citibank, N.A. All borrowings under the loan are repayable on a demand basis, when and if requested by the Company, but in no event later than July 31, 1998. The Company agreed to waive interest on the loan from February 23, 1998 forward. Mr. Rubin's indebtedness is secured by his pledge of 150,000 shares of Company Common Stock and his collateral assignment of all payments due to him under the terms of his seven-year Consulting Agreement and 54 Non-Competition Agreement with Hutchinson, which currently aggregate $1,200,000. At the closing of the Hutchinson Transaction, the Company, Robert Rubin and Hutchinson (as guarantor) entered into a five-year Non-Competition Agreement in favor of Hutchinson and its affiliates, pursuant to which Mr. Rubin and the Company agreed not to compete with the businesses acquired in the Hutchinson transaction. Under the terms of the Non-Competition Agreement, Mr. Rubin will receive payments aggregating $200,000 over a seven year period. In addition, at the Closing, Hutchinson engaged Mr. Rubin as a consultant to provide advisory services relating to the acquired manufacturing business over a seven year period, for which services Mr. Rubin will receive payments aggregating $1,000,000. Mr. Rubin has assigned his rights to payments under the non-competition and consulting agreements to the Company in satisfaction of the $1.2 million loan which payments to the Company Mr. Rubin has guaranteed. Such assignment is subject to approval by the Company's stockholders at the next annual or special meeting. On February 9, 1996, the Company loaned an aggregate of $450,000 to Diplomat Direct Marketing Corporation, formerly known as Diplomat Corporation ("Diplomat") in connection with Diplomat's acquisition of Biobottoms, Inc. Diplomat is a public company of which Robert Rubin serves as a director. Before the Biobottoms transaction, Mr. Rubin held approximately 22% of Diplomat's outstanding capital stock. Such loan (i) bears interest at the prime rate of CoreStates Bank, N.A. plus 2% and is payable monthly, (ii) is subordinated to a $2,000,0000 revolving credit loan agreement between Diplomat and Congress Financial Corporation, (iii) is payable in full on or before May 4, 1996 and (iv) is secured by a second priority lien in all of the assets of Diplomat and its wholly-owned subsidiary, Biobottoms, Inc. The loan was repaid in full in May 1996. In addition to repayment of principal and its receipt of accrued interest, the Company received a facilities fee of $50,000. Pursuant to an Agreement, dated May 30, 1996 (the "ERD Agreement") between the Company and ERD Waste Corp.("ERD"), the Company agreed to provide certain financial accommodations to ERD by making available a $4.4 million standby letter of credit (the "Letter of Credit") originally issued by Citibank NA and later assumed by Northfork Bank in favor of Chase Bank (formerly Chemical Bank) on behalf of ERD. Chase Bank is the principal lender to ERD and its subsidiaries, and upon issuance of the Letter of Credit, Chase Bank made available $4.4 million of additional funding to ERD under ERD's existing lending facility. The funding was used to refinance certain outstanding indebtedness of Environmental Services of America, Inc. ("ENSA"), a wholly-owned subsidiary of ERD. Robert M. Rubin, the Chairman and Chief Executive Officer and a principal stockholder of the Company is also the Chairman, Chief Executive Officer, a director and a principal stockholder of ERD, owning approximately 25.1% of the outstanding ERD Common Stock. 55 In consideration for making the Letter of Credit available, in addition to repayment by ERD of all amounts drawn under the Letter of Credit and the grant of a security interest in certain machinery and equipment of ENSA to secure such repayment, ERD agreed (i) to pay to the Company all of the Company's fees, costs and expenses payable to Citibank and others in connection with making the Letter of Credit available, as well as the amount of all interest paid by the Company on drawings under the Letter of Credit prior to their repayment by ERD and (ii) to issue to the Company an aggregate of 25,000 shares of ERD common stock for each consecutive period of 90 days or any portion thereof, commencing August 1, 1996 that the Letter of Credit remains outstanding. ERD Common Stock was then traded on the NASDAQ National Market and, at the time of closing of the transaction with ERD, its the closing price of ERD Common Stock, as traded on Nasdaq was $9.25 per share. In August 1996, a subsidiary of ERD which operates a waste facility in Nassau County, New York was cited by the New York State Department of Environmental Conservation ("DEC") for violating certain DEC regulations. Such waste facility currently accounts for approximately 13% of ERD's consolidated revenues. As a result of the uncertainties surrounding ERD's waste facility operations, the per share price of ERD Common Stock closed at $2.875 per share on November 8, 1996. ERD and the DEC have reached agreement to settle such violations, which resulted in the closing of the Long Beach, New York facility. As a result, the business of ERD was materially and adversely affected. On November 8, 1996, the Company and ERD amended and restated their agreements to provide that if and to the extent that the Letter of Credit provided by the Company is called for payment, ERD will issue to the Company its convertible note bearing interest at 12% per annum, payable monthly, and payable as to principal on the earliest to occur of: (i) May 30, 1999, (ii) ERD's receipt of the initial proceeds from any public or private placement of debt or equity securities of ERD, or (iii) completion of any bank refinancing by ERD, to the extent of all proceeds available after payment of other secured indebtedness. In addition, the ERD notes, if issued, will be convertible, at any time at the option of the Company, into ERD Common Stock at a conversion price equal to $4.40 per share, or a maximum of 1,000,000 ERD shares if the entire $4.4 million note is issued and converted into ERD Common Stock. In addition to the collateral provided under the May 30, 1996 agreement, ERD also provided the Company with a junior mortgage on the waste facility owned by ERD's subsidiary, subordinated to existing indebtedness encumbering such facility. In February 1997, the Company advanced an additional $500,000 to ERD, payable on demand. Under the terms of an indemnity agreement, dated May 30, 1996, Robert M. Rubin agreed to indemnify the Company for all losses, if any, incurred by the Company as a result of issuance of the Letter of Credit for the benefit of ERD. In consideration of his negotiating the 56 modification of the ERD agreement, on November 8, 1996, the Company's Board of Directors (Mr. Rubin abstaining) agreed to amend the indemnity agreement with Mr. Rubin to limit his contingent liability thereunder to the extent of 23% (Mr. Rubin's approximate percentage beneficial ownership in the outstanding Company Common Stock as of May 30, 1996) of all losses that the Company may incur in connection with its having provided the Letter of Credit financial accommodation on behalf of ERD. Mr. Rubin's reimbursement obligations are also subject to pro rata reduction to the extent of any repayments made directly by ERD or from proceeds received by the Company from the sale of ERD capital stock described above. In addition, Mr. Rubin personally guaranteed the $500,000 additional advance from the Company to ERD. On September 30, 1997, ERD filed for reorganization under Chapter 11 of the federal bankruptcy laws, and on October 29, 1997, Chase Bank drew on the Company provided letter of credit. As a result, the Company became liable to North Fork Bank, the issuer of the letter of credit, for the $4.4 million amount of such draw; which obligation the Company paid in full on October 31, 1997. As a result, the Company is now a creditor in the ERD reorganization, holding approximately $5.0 million of claims and holds a lien on certain ERD assets. However, by reason of the affiliation of Mr. Rubin with both corporations, it is possible that such lien will not be sustained in the reorganization proceeding; in which event the Company will be a general unsecured creditor of ERD. Although the Company does not believe that Chase Bank acted in a commercially reasonable manner and is currently considering its legal options, as a result of the foregoing development, the Company recorded a $5.0 million net loss in connection with the ERD transaction for the year ended July 31, 1997. In the event that the Company does not recoup any portion of such loss in connection with the ERD bankruptcy proceeding or otherwise, Mr. Rubin has personally agreed to indemnify the Company for the first $1.6 million of such loss. On July 30, 1996, the Board of Directors of the Company amended the terms of the 1996 Stock Option Plan to make all options granted under the 1996 Stock Option Plan exercisable without shareholder approval. On the date the 1996 Stock Option Plan was amended, the market price of the Company's Common Stock was $6.0125 per share, as a result of which the Company incurred a compensation charge equal to $1,670,667, representing the aggregate value of such unexercised in-the-money options issued under such option plan (including unexercisable options) to the named persons. All options granted to each of Messrs. Rubin and McLain in April 1996, and 100,000 options granted to Mr. Katz at $5.125 per share in October 1996, were immediately exercisable. The options granted to Mr. Barnes in May 1996 and the remaining 150,000 options granted to Mr. Katz vested immediately as to 33 1/3 % and as to 33 1/3 % at the end of each of various fiscal periods ending 1997 and 1998, subject to their continued employment with the Company. The options to acquire 156,550 shares granted to Mr. Rubin and 50,000 shares granted to Mr. Barnes in October 1996 vest 50% on the first anniversary of the option grant and 50% on the second anniversary of the option grant. 57 Robert M. Rubin is currently a director of IDF and owns 874,659 shares of IDF common stock, representing approximately 13.0% of the currently outstanding IDF common stock after giving effect to the IDF Merger, including Mr. Rubin's conversion of an $800,000 loan previously made to IDF into convertible preferred stock convertible into an additional 400,000 shares of IDF common stock. As a result of the completion of the IDF Merger, Mr. Rubin serves as Chairman of the Board of Directors of IDF and received a three year employment agreement from IDF at an annual salary of $75,000. Lawrence Kaplan, a director of the Company through June 1998, is also a member of the Board of Directors of IDF and directly and through affiliates owns an aggregate of 497,859 shares of IDF common stock. In addition, GV Capital, Inc., an affiliate of Mr. Kaplan, has acted as placement agent in connection with the IDF private placement and received additional compensation for such services, in the form of commission of 7.5%, a 2.5% non-accountable expense allowance and 180,000 shares of IDF common stock for nominal consideration. Board Compensation Committee Report on Executive Compensation The Board of Directors of the Company has decided that the best way to attract and retain highly capable employees on a basis that will encourage them to perform at increasing levels of effectiveness and to use their best efforts to promote the growth and profitability of the Company and its subsidiaries, is to enter into employment agreements with its senior executive officers. During the fiscal year ended July 31, 1998, Messrs. Rubin and McLain were both under contract with the Company. This had enabled the Board to concentrate on the negotiation of particular employment contracts rather than on the formulation of more general compensation policies for all management and other personnel. Upon the effective date of the initial public offering of Western, Mr. McLain's Employment Agreement was terminated. Mr. Shahid's Employment Agreement was terminated upon consummation of the Hutchinson Transaction. See, "Employment, Incentive Compensation and Termination Agreements" above. The Company believes that its compensation levels as to all of its employees were comparable to industry standards. Currently, Mr. Rubin is the Company's only senior executive officer of the Company employed under a contract approved by the full Board of Directors. See "Executive Compensation-Employment, Incentive Compensation and Termination Agreements." In setting levels of compensation under such employment contracts and in approving management's compensation of all other Company employees, the Board of Directors evaluates the Company's overall profitability, the contribution of particular individuals to Company performance and industry compensation standards. A significant percentage of the compensation paid to each of Messrs. Shahid, McLain and Rubin in the past under their respective employment agreements was and is tied to the Company's achievement of prescribed levels of pre-tax income of the Company as a whole or of the subsidiary for which such executive is or was responsible. See "Executive Compensation-Employment, Incentive Compensation and Termination Agreements." The members of the Company's Board of Directors are Messrs. Robert M. Rubin, 58 C. Dean McLain, Howard Katz and David M. Barnes. Compliance with Section 16(a) of the Exchange Act. To the knowledge of the Company, no officers, directors, beneficial owner of more than 1 percent of any class of equity securities of the Company registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any other person subject to Section 16 of the Exchange Act with respect to the Company, failed to file on a timely basis reports required by Section 16(a) of the Exchange Act during the most recent fiscal year, which ended July 31, 1998. 59 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth certain information as of November 4, 1998 with respect to the beneficial ownership of the Common Stock of the Company by each beneficial owner of more than 5% of the total number of outstanding shares of the Common Stock of the Company, each director and all executive officers and directors of the Company as a group. Unless otherwise indicated, the owners have sole voting and investment power with respect to their respective shares.
Number of Percentage of Name and Address Office Shares Outstanding - -------------------------------------- ------------------------------- ------------------------ -------------------- Robert M. Rubin Director, President, Chief 782,798 (1)(2)(5) 6.7% 11130 NE 33rd Place Executive Officer Bellevue, WA 98004 C. Dean McLain Director, Executive 257,750(2)(3) 2.2% 4601 N.E. 77th Avenue Vice-President and President Suite 200 of Western Vancouver, WA 98662 316,667(4) 2.7% Howard Katz Chief Operating Officer, 11130 NE 33rd Place Director and President of Bellevue, WA 98004 Connectsoft 158,333(4) 1.4% David M. Barnes Vice President of Finance and 11130 NE 33rd Place Director Bellevue, WA 98004 Rubin Family Irrevocable 1,025,000(5) 8.8% Stock Trust 25 Highland Boulevard Dix Hills, NY 11746 All directors and executive officers 1,515,548(1)(2)(3)(4) 13.0% as a group (4 persons)
60 - -------------- * Less than one percent (1%) (1) Includes non-qualified options to purchase 80,000 shares granted to Mr. Rubin at an exercise price of $3.125 per share and 126,550 shares at an exercise price of $5.125 per share issued under the Company's 1991 Stock Option Plan which are fully exercisable. (2) Includes non-qualified options granted under the 1996 Stock Option Plan (options to acquire 353,450 shares to Mr. Rubin; options to acquire 150,000 shares to Mr. McLain). Such options were granted on April 25, 1996 at an exercise price of $3.78125 per share, the fair market value of the Common Stock on the date of option grant. Options to acquire 30,000 shares were granted to Mr. Rubin on October 4, 1996 under the 1996 Stock Option Plan. The 1996 Stock Option Plan was amended in July 1996 to make options granted under the plan exercisable without stockholder approval. Messrs. Rubin and McLain's continuing employment by the Company is governed by the terms of their employment agreements. (3) Includes (i) options to purchase 36,000 shares of the Company's Common Stock at $3.125 per share granted under the Company's 1991 Stock Option Plan, (ii) options to purchase 45,000 shares of the Company's Common Stock at $4.875 per share under the 1991 Stock Option Plan, (iii) options to purchase 12,500 shares of the Company's Common Stock at $3.875 per share under the 1991 Stock Option Plan and (iv) options to purchase 150,000 shares of the Company's Common Stock at $3.78125 per share granted under the 1996 Stock Option Plan. (4) Includes options to purchase 100,000 shares granted to Mr. Katz at an exercise price of $5.125 per share and options to purchase 50,000 shares granted to Mr. Katz at an exercise price of $3.78125 under the 1996 Plan which are immediately exercisable. Does not include options granted under the 1996 Stock Option Plan to Messrs. Barnes (33,334 shares at an exercise price of $3.78125 per share and 25,000 at an exercise price of $5.125 per share) and Katz (50,000 shares) at exercise price of $3.78125, respectively, which are not yet exercisable. The options issuable to each of Messrs. Barnes and Katz which are not yet exercisable are only exercisable under certain conditions related to their continued employment with the Company. (5) Robert M. Rubin, a grantor of the Rubin Family Irrevocable Stock Trust, disclaims beneficial ownership of the shares held by the Trust. 61 ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS See "Executive Compensation-Compensation Committee Interlocks and Insider Participation" and "Executive Compensation-Employment, Incentive Compensation and Termination Agreements", and "Management's Discussion and Analysis of Financial Condition and Results of Operations." 62 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. Financial Statements. Report of Independent Accountants....................................................F-2 Consolidated Balance Sheets as of July 31, 1998 and 1997 ............................F-3 Consolidated Statements of Operations for the years ended July 31, 1998, 1997, and 1996.................................F-4 Consolidated Statements of Stockholders' Equity for the years ended July 31, 1998, 1997 and 1996..................................F-5 Consolidated Statements of Cash Flows for the years ended July 31, 1998, 1997 and 1996..................................F-6 Notes to Consolidated Financial Statements...........................................F-7 2. Schedule II - Valuation and Qualification Accounts ..................................S-1 (b) Reports on Form 8-K. None. (c) Exhibits.
Exhibit Number Description - --------- ----------- 3.1 Certificate of Incorporation of Registrant.(8) 3.2 By-laws of Registrant. (9) 4.1 Specimen Certificate of Common Stock. (10) 4.2 1991 Employee Stock Option Plan. (8) 4.3 1996 Stock Option Plan, as amended. 10.1 Agreement of Purchase and Sale, dated December 4, 1992, by and between Case and Western Power (Schedule omitted). (1) 10.2 Employment Agreement, by and between Western Power and C. Dean McLain. (14)
63
10.3 Financing Agreement with Associates Commercial Corporation and Western Power. (3) 10.4 Asset Purchase Agreement, dated as of September 22, 1994, by and between Case and Western Power (schedule omitted). (4) 10.5 Management Agreement between Western Power and American United Global, Inc. (6) 10.6 Revised Financing Agreement with Seattle-First National Bank and Western Power. (14) 10.7 Auburn Facility Real Estate Purchase and Sale Agreement, dated October 19, 1995, by and between Western Power and Ford Kiene. (14) 10.8 Western Power Lease Agreement--Sacramento, California. (7) 10.9 Sacramento Acquisition Agreement with Western Power a. Asset Purchase Agreement (7) b. Used Equipment Note (7) c. Parts Note (7) d. Accounts Receivable Note (7) e. Goodwill Note (7) f. Real Estate Note from MRR to Case (7) g. Deed to Secure Debt of MRR to Case (7) h. Security Agreement (7) i. C. Dean McLain's Personal Guaranty (7) 10.10 GCS Acquisition Agreement with Western Power. (14) 10.11 Amended and Restated Employment Agreement with Robert M. Rubin. (11) 10.12 Asset Purchase Agreement, dated as of November 22, 1995, by and among Hutchinson Corporation, American United Global, Inc. ("AUGI"), AUG California, Inc. ("AUG-Ca"), American United Products, Inc. ("AUP"), and American United Seal, Inc. ("AUS") (Schedules and Exhibits omitted). (12) 10.13 Non-Competition Agreement, dated Janaury 19, 1996, among Hutchinson Seal Corporation, AUGI, AUG-Ca, AUP and AUS. (12) 10.14 Non-Competition Agreement, dated January 19, 1996, between Hutchinson Seal Corporation and Robert M. Rubin. (12)
64
10.15 Agreement of Hutchinson Corporation to guaranty payments under Non-Competition and Consulting Agreements. (12) 10.16 Consulting Agreement, dated January 19, 1996, between Hutchinson Seal Corporation and Robert M. Rubin. (12) 10.17 $2,625,000 Purchase Note from N O-Ring Corporation to AUGI. (12) 10.18 $1,050,000 Purchase Note from Stillman Seal Corporation to AUGI. (12) 10.19 Guaranty of Hutchinson Corporation of the Purchase Notes, aggregating $3,675,000 of National O-Ring Corporation and Stillman Seal Corporation. (12) 10.20 January 19, 1996, amendment to certain provisions of Asset Purchase Agreement. (12) 10.21 Agreement and Plan of Merger, dated June 28, 1996, by and among AUGI, ConnectSoft, Inc., and certain shareholders of ConnectSoft, Inc. (without exhibits). (13) 10.24 Agreement of Plan and Merger, by and among American United Global, Inc. ("AUGI"), BTS Acquisition Corp., Broadcast Tower Sites, Inc., Simantov Moskona and Sergio Luciani, dated December 11, 1996 (Incorporated by reference from the Company's Form 8-K filed December 24, 1996). 10.25 Agreement of Plan of Merger, dated July 31, 1997, between American United Global, Inc., IDF International, Inc. and TechStar Communications, Inc. (without exhibits) (15) 10.26 Asset Purchase Agreement, dated January 17, 1997, among Sahlberg Equipment, Inc., John Sahlberg and Robert Sahlberg, R&J Partners and Western Power & Equipment Corp. (Incorporated by reference from Western Power and Equipment Corp.'s Form 8-K filed February 3, 1997 (File No. 0-26230)). 10.27 Loan Agreement dated, June 5, 1997, between Deutsche Financial Services, Inc. and Western Power and Equipment Corp. (Incorporated by reference from Western Power and Equipment Corp.'s Form 10-Q filed June 11, 1997 (File No. 0-26230)).
65
10.28 Commercial Lease, dated June 1, 1997 between McLain-Rubin Realty Company II, LLC and Western Power and Equipment Corp. for Kent, Washington facility (Incorporated by reference from Western Power and Equipment Corp.'s Form 10-K filed October 29, 1997 (File No. 0-26230)). 10.29 Asset Purchase Agreement between eGlobe, Inc. (fka Executive Telecard Ltd.) and American United Global, Inc., et al, dated on July 10, 1998.* 10.30 Commercial Lease dated June 1, 1997, between McLain-Rubin Realty Company II, LLC and Western Power & Equipment Corp. for Kent, Washington Facility. (16) 10.31 Asset Purchase Agreement, dated December 11, 1997, between Case Corporation and Western Power & Equipment Corp. and McLain-Rubin Realty Company III, LLC.(16) 10.32 Employment Agreement, by and between Western Power & Equipment Corp. and C. Dean McLain dated January 1, 1998.(16) 10.33 Consulting Agreement, by and between Western Power & Equipment Corp. and Robert M. Rubin.(16) 22. Subsidiaries of the Company. 27. Financial Data Schedule.
- --------------- (1) Filed as an Exhibit to the Current Report on Form 8-K of American United Global, Inc. ("AUGI"), as filed on December 19, 1992 and incorporated herein by reference thereto. (2) Filed as an Exhibit to the AUGI Annual Report on Form 10-K, as filed on October 29, 1993 and incorporated herein by reference thereto. (3) Filed as an Exhibit to Amendment No. 1 to AUGI's Registration Statement on Form S-1, filed on February 1, 1994 and incorporated herein by reference thereto. (Registration No. 33-72556). (4) Filed as an Exhibit to the Current Report on Form 8-K of AUGI, as filed on September 23, 1994 and incorporated herein by reference thereto. (5) Filed as an Exhibit to Amendment No. 1 to the Western Power & Equipment Corp. ("Western Power") Registration Statement on Form S-1, filed on May 16, 1995 66 and incorporated herein by reference thereto. (Registration No. 33-89762). (6) Filed as an Exhibit to the Western Power Registration Statement on Form S-1, filed on February 24, 1995 (Registration No. 33-89762). (7) Filed as an Exhibit to the Current Report on Form 8-K of Western Power as filed on March 6, 1996 and incorporated herein by reference thereto. (8) Included with the filing of AUGI's Registration Statement on Form S-1 on October 18, 1991, as amended by Amendment No. 1, dated December 18, 1991, Amendment No. 2, dated January 9, 1990, Amendment No. 3, dated January 24, 1992 and Amendment No. 4, dated January 28, 1992. (9) Filed as an Exhibit to the definitive Proxy Materials of Alrom Corp., a New York corporation, as filed on December 10, 1991. (10) Filed as an Exhibit to AUGI's Registration Statement on Form S-18 (Registration No. 3303330 81-NY) and incorporated herein by reference thereto. (11) Filed as on Exhibit to AUGI's Preliminary Proxy Materials filed 1996 Annual Meeting on June 27, 1996. (12) Filed as an Exhibit to AUGI's Current Report on Form 8-K, dated February 2, 1996. (13) Filed as an Exhibit to AUGI's Current Report on Form 8-K, dated July 24, 1996. (14) Filed as an Exhibit to Western Power Report on Form 10-K for fiscal year ended July 31, 1996. (15) Filed as an Exhibit to AUGI's Annual Report on Form 10-K for fiscal year ended July 31, 1997. (16) Filed as an Exhibit to Western Power Report on Form 10-K for fiscal year ended July 31, 1998. * Filed herewith 67 SIGNATURES In accordance with Section 13 or 15(d) of the Exchange Act, the Registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Dated: November 10, 1998 AMERICAN UNITED GLOBAL, INC. By:./s/Robert M. Rubin ------------------------ Robert M. Rubin, Chairman In accordance with the Securities and Exchange Commission, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Robert M. Rubin Chairman of the Board, Chief November 10, 1998 - ------------------------------ Executive Officer and Director Robert M. Rubin /s/ C. Dean McLain Executive Vice President and November 10, 1998 - ------------------------------- Director C. Dean McLain /s/ David M. Barnes Vice President--Finance and Chief November 10, 1998 - ------------------------------- Financial and Chief Accounting David M. Barnes Officer /s/ Howard Katz Executive Vice President and November 10, 1998 - ------------------------------ Director Howard Katz
68 AMERICAN UNITED GLOBAL, INC. FINANCIAL STATEMENTS INDEX
Page ------ Report of Independent Accountants ....................... F-2 Consolidated Balance Sheets ............................. F-3 Consolidated Statements of Operations ................... F-4 Consolidated Statements of Shareholders' Equity ......... F-5 Consolidated Statements of Cash Flows ................... F-6 Notes to Consolidated Financial Statements .............. F-7
F-1 REPORT OF INDEPENDENT ACCOUNTANTS To the Board of Directors and Shareholders of American United Global, Inc. In our opinion, the consolidated financial statements listed in the index appearing under Item 14(a)(1) and (2) on page 63 present fairly, in all material respects, the financial position of American United Global, Inc. and its subsidiaries at July 31, 1998 and 1997, and the results of their operations and their cash flows for each of the three years in the period ended July 31, 1998, in conformity with generally accepted accounting principles. 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 of these statements in accordance with generally accepted auditing standards which 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, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for the opinion expressed above. PricewaterhouseCoopers LLP Portland, Oregon November 11, 1998 F-2 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS
JULY 31, ------------------------------- 1998 1997 -------------- --------------- ASSETS Current assets: Cash and cash equivalents ............................................................ $ 3,362,000 $ 12,284,000 Investment in marketable debt securities ............................................ 4,449,000 10,018,000 Trade accounts receivable, less allowance for doubtful accounts of $726,000 and $807,000, respectively ............................................................ 23,708,000 12,473,000 Notes receivable from shareholder (Note 14) ......................................... -- 1,238,000 Inventories (Note 4) ................................................................ 73,491,000 64,918,000 Prepaid expenses and other receivables .............................................. 287,000 357,000 Deferred tax asset (Note 7) ......................................................... 1,298,000 936,000 Notes receivable (Note 14 and 9) .................................................... 1,200,000 3,503,000 ------------- ------------- Total current assets ............................................................ 107,795,000 105,727,000 Property and equipment, net (Note 5) ................................................ 8,695,000 9,530,000 Rental equipment fleet, net (Note 5) ................................................ 23,080,000 18,452,000 Leased equipment fleet, net (Note 5) ................................................ 2,760,000 -- Intangibles and other assets, net of accumulated amortization of $1,263,000 and $1,460,000, respectively (Note 12) ................................................ 3,613,000 8,582,000 Investment in unconsolidated subsidiary (Note 3) .................................... 961,000 -- Deferred tax asset (Note 7) ......................................................... -- 2,432,000 ------------- ------------- $ 146,904,000 $ 144,723,000 ------------- ------------- ------------- ------------- LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Borrowings under floor financing lines (Note 6) ..................................... $ 11,038,000 $ 55,490,000 Short-term borrowings (Note 6) ...................................................... 76,769,000 11,751,000 Current portion of capital lease obligations (Note 10) .............................. 67,000 412,000 Accounts payable .................................................................... 18,027,000 20,150,000 Accrued liabilities ................................................................. 5,336,000 12,583,000 Income taxes payable (Note 7) ....................................................... 1,050,000 1,924,000 Net liabilities of discontinued operations (Note 9) ................................... 1,480,000 -- Deferred revenue .................................................................... -- 950,000 ------------- ------------- Total current liabilities ....................................................... 113,767,000 103,260,000 Long-term borrowings (Note 6) .......................................................... 1,156,000 3,456,000 Capital lease obligations, net of current portion (Note 10) ............................ 2,827,000 4,026,000 Deferred taxes (Note 7) ................................................................ 690,000 -- Deferred lease income .................................................................. 3,474,000 -- ------------- ------------- Total liabilities ............................................................... 121,914,000 110,742,000 ------------- ------------- Minority interest ...................................................................... 9,128,000 9,880,000 ------------- ------------- Commitments and contingencies (Note 10) Shareholders' equity (Notes 8 and 11): Preferred stock, 12.5% cumulative, $1.00 per share liquidation value, $.01 par value; 1,200,000 shares authorized; none issued and outstanding ................... -- -- Series B-1 convertible preferred stock, convertible to common, $3.50 per share liquidation value, $.01 par value; 1,000,000 shares authorized; 723,862 and 976,539 shares issued and outstanding, respectively ....................................... 7,000 10,000 Series B-2 7% convertible preferred stock; convertible into common, $25 per share liquidation value, 500,000 shares authorized, 120,000 shares issued and outstanding in 1997 ..................................... -- 1,000 Common stock, $.01 par value; 20,000,000 shares authorized; 11,617,286 and 10,427,208 shares issued and outstanding, respectively ....................................... 116,000 104,000 Additional contributed capital ...................................................... 49,954,000 48,782,000 Deferred compensation ............................................................... -- (196,000) Accumulated deficit ................................................................. (34,215,000) (24,600,000) ------------- ------------- Total shareholders' equity ...................................................... 15,862,000 24,101,000 ------------- ------------- $ 146,904,000 $ 144,723,000 ------------- ------------- ------------- -------------
The accompanying notes are an integral part of this statement. F-3 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS
YEAR ENDED JULY 31, -------------------------------------------- 1998 1997 1996 ------------- -------------- ------------- Net revenue.............................................................. $ 163,478,000 $ 152,021,000 $ 106,555,000 Cost of revenue.......................................................... 144,302,000 134,180,000 93,906,000 ------------- -------------- ------------- Gross profit...................................................... 19,176,000 17,841,000 12,649,000 Selling, general and administrative expenses............................. 13,523,000 23,440,000 9,535,000 ------------- -------------- ------------- Operating income (loss)........................................... 5,653,000 (5,599,000) 3,114,000 Interest expense, net.................................................... 4,197,000 2,627,000 1,137,000 ------------- -------------- ------------- Income (loss) from continuing operations before income taxes, equity in loss of unconsolidated subsidiary and minority interest........ 1,456,000 (8,226,000) 1,977,000 Provision (benefit) for income taxes (Note 7)............................ 1,354,000 (703,000) 890,000 Equity in loss of unconsolidated subsidiary.............................. 4,730,000 - - Gain on sale of subsidiary............................................... (220,000) - - Minority interest in earnings of consolidated subsidiaries............... 713,000 421,000 402,000 ------------- -------------- ------------- Income (loss) from continuing operations ......................... (5,121,000) (7,944,000) 685,000 -------------- -------------- ------------- Discontinued operations, net of taxes (Note 9): Loss from operations, (net of tax benefit of $1,423,000 in 1998 and $966,000 in 1997)..................................................... (4,470,000) (16,910,000) (9,980,000) Gain on disposal (net of tax of $5,042,000 in 1996)................... - - 7,460,000 ------------- -------------- ------------- (4,470,000) (16,910,000) (2,520,000) -------------- --------------- -------------- Net loss ................................................................ (9,591,000) (24,854,000) (1,835,000) Dividends on preferred stock............................................. (24,000) (2,403,000) - -------------- --------------- ------------- Net loss available for common shareholders............................... $ (9,615,000) $ (27,257,000) $ (1,835,000) ------------- -------------- ------------- ------------- -------------- ------------- Basic and diluted earnings (loss) per share: (Loss) earnings from continuing operations............................ $ (0.45) $ (1.05) $ .12 Loss from discontinued operations..................................... (0.40) (1.70) (.44) -------------- -------------- -------------- Basic and diluted loss per share......................................... $ (0.85) $ (2.75) $ (.32) ------------- -------------- ------------- ------------- -------------- ------------- Weighted average number of shares........................................ 11,311,791 9,919,626 5,810,526 ------------- -------------- ------------- ------------- -------------- -------------
The accompanying notes are an integral part of this statement. F-4 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
PREFERRED STOCK COMMON STOCK -------------------------- ------------------------------ NUMBER OF NUMBER OF SHARES AMOUNT SHARES AMOUNT ------------ ----------- --------------- ------------- Balance at July 31, 1995.................................. - - 5,655,000 57,000 Net loss ................................................. Issuance of common shares as compensation................. 12,000 Stock issued under stock option plans and warrants........ 600,000 6,000 Tax benefit related to stock option plans and warrants.... Deferred compensation..................................... Stock option compensation................................. Net collection on note receivable from shareholder........ ------------- ------------- -------------- ------------- Balance at July 31, 1996.................................. - - 6,267,000 63,000 Net loss ................................................. Dividend on preferred stock............................... Issuance of common shares................................. 1,886,000 19,000 Issuance of preferred stock............................... 1,377,000 14,000 Conversion of preferred stock to common................... (280,000) (3,000) 2,031,000 20,000 Tax benefit related to stock option plans and warrants.... Amortization of deferred compensation..................... Exercise of stock options................................. 243,000 2,000 Stock options issued to non-employees..................... Warrants issued in connection with acquisition............ ------------- ------------- -------------- ------------- Balance at July 31, 1997.................................. 1,097,000 11,000 10,427,000 104,000 Net loss ................................................. Dividend on preferred stock............................... Issuance of common shares................................. 250,000 3,000 Conversion of preferred stock to common................... (373,000) (4,000) 838,000 8,000 Amortization of deferred compensation..................... Exercise of stock options................................. 102,000 1,000 ------------- ------------- -------------- ------------- Balance at July 31, 1998.................................. 724,000 $ 7,000 11,617,000 $ 116,000 ------------- ------------- -------------- ------------- ------------- ------------- -------------- -------------
ADDITIONAL RETAINED TOTAL CONTRIBUTED EARNINGS SHAREHOLDERS' CAPITAL OTHER (DEFICIT) EQUITY ------------- ------------- -------------- ---------------- Balance at July 31, 1995.................................. 15,889,000 (184,000) 4,492,000 20,254,000 Net loss ................................................. (1,835,000) (1,835,000) Issuance of common shares as compensation................. 15,000 15,000 Stock issued under stock option plans and warrants........ 1,770,000 1,776,000 Tax benefit related to stock option plans and warrants.... 510,000 510,000 Deferred compensation..................................... (500,000) (500,000) Stock option compensation................................. 2,470,000 (293,000) 2,177,000 Net collection on note receivable from shareholder........ 184,000 184,000 ------------- ------------- -------------- ------------- Balance at July 31, 1996.................................. 20,654,000 (793,000) 2,657,000 22,581,000 Net loss ................................................. (24,854,000) (24,854,000) Dividend on preferred stock............................... 2,286,000 (2,403,000) (117,000) Issuance of common stock.................................. 8,525,000 8,544,000 Issuance of preferred stock............................... 15,411,000 15,425,000 Conversion of preferred stock to common................... (17,000) Tax benefit related to stock option plans and warrants.... 356,000 356,000 Amortization of deferred compensation..................... 597,000 597,000 Exercise of stock options................................. 854,000 856,000 Stock options issued to non-employees..................... 571,000 571,000 Warrants issued in connection with acquisition............ 142,000 142,000 ------------- ------------- -------------- ------------- Balance at July 31, 1997.................................. 48,782,000 (196,000) (24,600,000) 24,101,000 Net loss ................................................. (9,591,000) (9,591,000) Dividend on preferred stock............................... 141,000 (24,000) 117,000 Issuance of common stock.................................. 473,000 476,000 Conversion of preferred stock to common................... (4,000) - Amortization of deferred compensation..................... 196,000 196,000 Exercise of stock options................................. 562,000 563,000 ------------- ------------- -------------- ------------- Balance at July 31, 1998.................................. $ 49,954,000 $ - $ (34,215,000) $ 15,862,000 ------------- ------------- -------------- ------------- ------------- ------------- -------------- -------------
The accompanying notes are an integral part of this statement. F-5 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS
YEAR ENDED JULY 31, ---------------------------------------------- 1998 1997 1996 ------------- --------------- -------------- Cash flows from operating activities: Net loss from continuing operations................................... $ (5,121,000) $ (7,944,000) $ 685,000 Net loss from discontinued operations ................................ (4,470,000) (16,910,000) (2,520,000) Adjustments to reconcile net loss to net cash used in operating activities: Depreciation and amortization....................................... 1,448,000 2,646,000 891,000 Long-term asset impairment.......................................... - 5,725,000 - Gain on sale of equity securities................................... - - (34,000) Loss on settlement.................................................. - 1,800,000 - Loss on standby letter of credit.................................... - 4,985,000 - Amortization of deferred compensation............................... 196,000 597,000 - Gain on disposal of business........................................ (220,000) - (7,460,000) Deferred tax provision.............................................. - (11,000) (781,000) Income applicable to minority interest.............................. 713,000 421,000 402,000 Undistributed loss of affiliate..................................... 4,730,000 - - Purchased research and development.................................. - - 10,033,000 Stock option compensation................................................ - 271,000 1,671,000 Imputed interest.................................................... - 305,000 161,000 Change in assets and liabilities, net of effects of acquisition and dispositions: Trade accounts receivable......................................... (10,584,000) (7,255,000) (275,000) Inventories....................................................... (2,280,000) (17,673,000) (12,840,000) Notes receivable.................................................. 3,503,000 - - Intangible and other assets....................................... 1,638,000 - (686,000) Prepaid expenses and other receivable............................. 70,000 (1,646,000) 571,000 Accounts payable.................................................. (2,122,000) 14,181,000 143,000 Accrued liabilities............................................... (5,462,000) 6,588,000 2,026,000 Income taxes payable.............................................. (2,254,000) (3,329,000) (165,000) Change in deferred revenue........................................ (950,000) 950,000 - Change in deferred gain on disposition of Technology Group........ 1,480,000 - - Borrowings under term loans....................................... 67,179,000 242,000 1,268,000 Inventory floor financing......................................... (47,246,000) 1,126,000 12,411,000 Other............................................................. - - (496,000) ------------- -------------- -------------- Net cash provided by (used in) operating activities............... 248,000 (14,931,000) 5,005,000 ------------- --------------- -------------- Cash flows from investing activities: Proceeds from sale of fixed assets.................................... - - 2,075,000 Proceeds from sale of business, net................................... - - 19,099,000 Purchase of property and equipment.................................... (6,332,000) (1,222,000) (695,000) Purchase of equity securities......................................... - - (1,051,000) Proceeds from sale of equity securities............................... - - 1,085,000 Sale (purchase) of debt securities.................................... 5,569,000 (3,750,000) (6,268,000) Advances to ConnectSoft, Inc. prior to acquisition.................... - - (3,289,000) Acquisition of businesses, net of cash acquired....................... - (1,497,000) (2,342,000) ------------- -------------- ------------- Net cash (used in) provided by investing activities............... (763,000) (6,469,000) 8,614,000 -------------- -------------- ------------- Cash flows from financing activities Net borrowings (payments) under revolving credit agreements........... (7,323,000) 7,287,000 (2,805,000) Principal payments under capitalized lease obligations................ (348,000) (327,000) (62,000) Proceeds from sale of stock........................................... 480,000 9,182,000 - Subsidiary purchase of treasury stock................................. (1,816,000) - - Decrease in receivable from underwriter............................... - - 1,102,000 Exercise of stock options............................................. 562,000 856,000 1,776,000 Collections (increase) of notes receivable from shareholder, net...... 38,000 (400,000) (688,000) ------------- -------------- -------------- Net cash (used in) provided by financing activities............... (8,407,000) 16,598,000 (677,000) -------------- -------------- ------------- Net (decrease)increase in cash and cash equivalents...................... (8,922,000) (4,802,000) 12,942,000 Cash and cash equivalents beginning of year.............................. 12,284,000 17,086,000 4,144,000 ------------- -------------- ------------- Cash and cash equivalents end of year.................................... $ 3,362,000 $ 12,284,000 $ 17,086,000 ------------- -------------- -------------- ------------- -------------- --------------
The accompanying notes are an integral part of this statement. F-6 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. DESCRIPTION OF BUSINESS American United Global, Inc., a Delaware corporation (the "Company") is engaged, through its operating subsidiary, in the distribution business. The Company's distribution group consists of its 60.5% owned subsidiary, Western Power & Equipment Corp. ("Western"). Western operates as a retail distributor for the sale, servicing and leasing of light, medium and heavy construction equipment and related parts. These sales are conducted from 27 regional distribution operations owned by Western located in the states of Washington, Oregon, California, Alaska and Nevada. A majority of this equipment is manufactured by Case Corporation ("Case"). The Company is also involved in the construction and wireless communications consulting business through a minority owned subsidiary, IDF International, Inc. ("IDF"). TechStar Communications, Inc. ("TechStar") a wholly owned subsidiary of IDF, provides consulting services to the wireless communications industry in the form of network hardware acquisition, zoning, architectural and engineering consulting services. As discussed in Note 3, on August 1, 1997 the Company merged TechStar into IDF International, Inc. ("IDF") in a reverse triangular merger, resulting in the Company owning approximately 58% of IDF. IDF, through its Heyden/Wegman, Inc. subsidiary ("Heyden Wegman") provides general construction and engineering services to municipalities and private industry. During the year ended July 31, 1998 IDF sold equity securities that reduced the Company's percentage ownership of IDF voting shares to approximately 47.6%. As a result, the results of IDF are accounted for using the equity method effective August 1, 1997. The Company had been engaged in the technology business through subsidiaries, which provided telecommunications products and services, a proprietary intelligent communications system, as well as software and networking products. Such products and services were provided by the Company's wholly and majority owned subsidiaries as follows: Connectsoft Communications Corp. ("CCC"), a wholly owned subsidiary is developing a telephony server product that reads email and select web content over the telephone which is being marketed under the name "Vogo Server". See Note 9. Exodus Technologies, Inc., an 80.4%-owned subsidiary, had developed a proprietary application server software, marketed as NTERPRISE, allows users to run Windows application server software programs designed for Microsoft Windows NT operating system on users' existing Unix workstations. InterGlobe Networks, Inc. provided network consulting services and managed a network operations center providing internet connectivity services. F-7 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS The technology business has been accounted for as discontinued operations for the years ending July 31, 1998, 1997 and 1996. See Note 9. The Company had also been engaged in a manufacturing business consisting of two units, National O-Ring, which manufactured and distributed a full range of standard-size, low-cost, synthetic rubber o-ring sealing devices for use in automotive and industrial applications, and Stillman Seal, which specialized in the design, manufacture and distribution of rubber-to-metal bonded sealing devices and molded rubber shapes for use in commercial aerospace, defense and communications industry applications (collectively the "Manufacturing Group"). The Manufacturing Group was sold pursuant to the terms of an Asset Purchase Agreement dated as of November 22, 1995. The effect of the sale on the results of operations of the Company has been included in discontinued operations in the accompanying consolidated statements of operations for the year ended July 31, 1996 as more fully described in Note 9. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Consolidation The consolidated financial statements include the accounts of the Company and its wholly owned and majority-owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. Minority interest represents the minority shareholders' proportionate share of the equity of Western, which was 39.5% and 43.4% at July 31, 1998 and 1997, respectively. Cash Equivalents For financial reporting purposes, the Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Inventory Valuation Inventories are stated at the lower of cost or market. Cost is determined based upon the first-in, first-out method for parts inventory and the specific identification for equipment inventories. Investment Securities Investments in marketable debt securities represent primarily treasury notes and are carried at market value as these investments have been classified as available for sale securities at July 31, 1998 and 1997. F-8 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) Property and Equipment Property, plant, and equipment are stated at cost less accumulated depreciation. Depreciation and amortization are computed using the straight-line method over the estimated useful lives of the assets, ranging from 5 to 20 years. Expenditures for replacements and major improvements are capitalized. Repairs and maintenance costs are expensed as incurred. The cost of assets retired or otherwise disposed of and the related accumulated depreciation are eliminated from the accounts; any gain or loss thereon is included in the results of operations. Intangible Assets and Investment in Unconsolidated Subsidiary Intangible assets acquired in business acquisitions such as goodwill, and noncompete agreements represent value to the Company. Intangibles are amortized using the straight-line method over the assets' estimated useful lives ranging from 2 to 40 years. Such lives are based on the factors influencing the acquisition decision and on industry practice. The carrying value of intangible assets is assessed for any permanent impairment by evaluating the operating performance and future undiscounted cash flows of the underlying assets. Adjustments are made if the sum of the expected future net cash flows is less than book value. Investments in unconsolidated subsidiary represents the Company's 47.6% ownership in IDF International, Inc. ("IDF"). Net loss for IDF for the year ended July 31, 1998 was $9,930,000 including the impairment of goodwill in the amount of $7,500,000. Accordingly, the Company reduced its investment in unconsolidated subsidiary by $4,727,000 representing the Company's share of such loss during the year ended July 31, 1998. Income Taxes The Company accounts for income taxes using an asset and liability approach which requires the recognition of deferred tax liabilities and assets for the expected future consequences of temporary differences between the carrying amounts for financial reporting purposes and the tax bases of assets and liabilities. F-9 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) Revenue Recognition Revenue on equipment and parts sales is recognized upon shipment of products and passage of title. Equipment rental and service revenue is generally recognized over the period such services are provided. Advertising Expense The Company expenses all advertising costs as incurred. Total advertising expense for the years ended July 31, 1998, 1997 and 1996 was $434,000, $501,000 and $263,000, respectively. Fair Value of Financial Instruments The carrying amount of cash and cash equivalents, accounts receivable, short term borrowings, accounts payable and accrued liabilities as presented in the consolidated financial statements approximates fair value based on the short-term nature of these instruments. The recorded amount of long-term debt approximates fair value as the actual interest rates approximate current competitive rates. The fair value of marketable debt securities held approximates the carrying value at July 31, 1998 and 1997. 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 amount of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the fiscal periods presented. Actual results could differ from those estimates. Employee Stock Options The Company accounts for stock based employee compensation plans under the provisions of Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation." This standard defines a fair value-based method of accounting for these equity instruments. This method measures compensation cost based on the value of the award and recognizes that cost over the service period. The Company elected to continue using the rules of APB Opinion No. 25 and provides pro forma disclosures of net income (loss) and earning per share as if Statement No. 123 had been applied. F-10 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) Earnings Per Share Statement of Financial Accounting Standards No. 128, "Earnings Per Share" has been adopted by the Company during fiscal 1998. Applying the provisions of the statement had no material effect on the Company's earnings per share computations for the years ending July 31, 1998, 1997 and 1996. The following table sets forth the computations of basic and fully diluted earnings per share for the years ending July 31, 1998, 1997 and 1996:
YEAR ENDED JULY 31, ------------------------------------------------- 1998 1997 1996 --------------- --------------- -------------- Numerators: Net (loss) income from continuing operations.................... $ (5,121,000) $ (7,944,000) $ 685,000 Dividend on preferred stock..................................... (24,000) (2,403,000) - ---------------- ----------- -------------- Net loss after preferred dividends.............................. (5,145,000) (10,347,000) 685,000 Discontinued operations......................................... (4,470,000) (16,910,000) (2,520,000) ----------- ------------ ------------- Net loss ....................................................... (9,615,000) (27,257,000) (1,835,000) Denominator: Denominator for basic and diluted earnings per share - Weighted average outstanding shares............................. 11,311,791 9,919,626 5,810,526 --------------- ------------ ------------ Basic and diluted earnings (loss) per share: Income (loss) from continuing operations.......................... (0.45) (1.05) 0.12 Loss from discontinued operations................................. (0.40) (1.70) (0.44) ---------------- --------------- -------------- Basic and diluted net loss per share.............................. $ (0.85) $ (2.75) $ (0.32) ---------------- --------------- -------------- ---------------- --------------- --------------
Diluted and basic earnings per share are the same, since the inclusion of common stock equivalents in the computation would be antidilutive. Recent Accounting Pronouncements In June 1997, the Financing Accounting Standards Board issued FAS 130, "Reporting Comprehensive Income", which establishes financial accounting and reporting standards for reporting and display of comprehensive income and its components (revenues, expenses, gains and losses) in a full set of general purpose financial statements. The Company will adopt Statement 130 in the first quarter of fiscal 1999. F-11 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued) In June 1997, the Financial Accounting Standards Board issued FAS 131, "Disclosures About Segments of an Enterprise and Related Information", which establishes standards for the way that public business enterprises report information about operating segments in annual financial statements and requires that those enterprises report selected information about operating segments in interim financial reports issued to shareholders. The Company will adopt Statement 131 in the first quarter of fiscal 1999. Reclassifications Certain reclassifications have been made to the fiscal year 1997 and 1996 financial statements to conform to the financial statement presentation for fiscal 1998. Such reclassifications have had no effect on the Company's net loss or shareholders' equity. 3. ACQUISITIONS Distribution Business Acquisitions Effective February 29, 1996, Western acquired the assets and operations of two factory-owned stores of Case in the state of California. The acquisition was consummated for approximately $630,000 in cash, $1,590,000 in installment notes payable to Case and the assumption of $3,965,000 in inventory floor plan debt with Case and its affiliates. The results of operations of these two stores have been included in the consolidated results of operations from the effective date of the acquisition. The acquisition was accounted for as a purchase and resulted in the recording of approximately $150,000 in goodwill which is included in intangible and other long-term assets in the accompanying consolidated financial statements and is being amortized on a straight-line basis over 20 years. Effective June 11, 1996, Western acquired the assets and operations of GCS, Inc. ("GCS"), a California-based closely held distributor of heavy equipment primarily marketed to municipal and state government agencies responsible for highway maintenance. The acquisition was consummated for approximately $1,655,000 in cash. The acquisition was accounted for as a purchase and resulted in goodwill of approximately $400,000 which is included in intangible and other long-term assets in the accompanying consolidated financial statements and is being amortized on the straight-line basis over 20 years. Pro forma financial information relating to this acquisition has not been provided because its effect is immaterial. The F-12 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 3. ACQUISITIONS (continued) results of operations of the GCS stores have been included in the consolidated results of operations of the Company from the effective date of the acquisition. On January 17, 1997, Western acquired the operating assets of Sahlberg Equipment, Inc. ("Sahlberg"), a four-store Northwest distributor of noncompeting lines of equipment with facilities in Kent, Washington; Portland, Oregon; Spokane, Washington; and Anchorage, Alaska. The purchase price for the assets of Sahlberg was approximately $5,290,000, consisting of approximately $3,844,000 for equipment inventory, $797,000 for parts inventories, 625,000 for fixed assets and $24,000 for work in process. The acquisition has been accounted for as a purchase. On December 11, 1997, Western acquired substantially all of the operating assets used by Case in connection with its business of servicing and distributing Case agricultural equipment at a facility located in Yuba City, California. The acquisition was consummated for approximately $142,000 in cash, $628,000 in installment notes payable to Case and the assumption of $1,175,000 in inventory floor plan debt with Case and its affiliates. The acquisition was accounted for as a purchase. On April 30, 1998 Western acquired substantially all of the operating assets of Yukon Equipment, Inc. (Yukon) in connection with Yukon's business of servicing and distributing construction, industrial, and agricultural equipment in Alaska. Yukon has facilities in Anchorage, Fairbanks and Juneau, Alaska. The acquisition was consummated for approximately $4,766,000 in cash, the assumption of approximately $2,786,000 in floor plan debt with Case and its affiliates, and 50,000 shares of Western's common stock. The acquisition was accounted for as a purchase. Technology acquisitions TechStar Effective December 11, 1996 the Company acquired all of the outstanding stock of Broadcast Tower Sites, Inc. ("BTS"), a private company providing site acquisition, zoning, architectural, engineering and consulting services to the wireless communications industry. The shareholders of BTS exchanged their shares for $780,000 in cash, 507,246 unregistered shares of the Company's common stock and three promissory notes aggregating $600,000, bearing interest at the Citibank, N.A. prime rate (currently 8.50%) and payable in installments of $100,000, $200,000 and $300,000 on each of November 30, 1997, 1998 and 1999, respectively. The acquisition was accounted for by the purchase method. Accordingly, the results of operations of BTS have been included with the results of operations of the Company for periods subsequent to the date of acquisition. Subsequent to acquisition, the Company changed the name of BTS to TechStar Communications, Inc. ("TechStar"). A summary of the purchase price paid is as follows:
Cash paid........................................................................... $ 780,000 Value of common stock............................................................... 2,891,000 Promissory Notes given.............................................................. 600,000 Costs of acquisition................................................................ 155,000 Liabilities assumed................................................................. 941,000 -------------------- COST OF ASSETS ACQUIRED............................................................. $ 5,367,000 -------------------- --------------------
During August 1997 the Company merged TechStar into IDF, pursuant to an agreement and plan of merger dated July 31, 1997 among the Company, IDF and an acquisition subsidiary of IDF (the "IDF Merger Agreement"). Upon Consummation of the transaction, the Company received 6,171,553 shares of IDF common stock, representing approximately 63% of the then outstanding shares and approximately 58% of the fully diluted outstanding IDF common stock, as a result of which, the Company was deemed to have acquired IDF. In connection with the transaction,(i) all options granted by the Company under employment agreements entitling Messrs. Kandel, Luciani and Moskona to purchase an aggregate of 780,000 shares of the Company's common stock, and all additional authorized but ungranted employee stock options for 120,000 shares were cancelled, (ii) Messrs. Kandel and Luciani tendered their resignations as directors of the Company, (iii) each of Messrs. Kandel, Luciani and Moskona publicly sold all but 174,900 of their remaining shares of F-13 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 3. ACQUISITIONS (continued) Company stock and utilized $600,000 of the net proceeds to invest in convertible securities of IDF. Messrs. Kandel, Luciani and Moskona are the senior executives and officers of IDF and have each entered into employment agreements with IDF expiring November 30, 2000. In September 1998 Messrs. Luciani tendered his resignation with IDF. Pursuant to such agreements, Messrs. Kandel, Luciani and Moskona are entitled to receive, in addition to their base salaries and annual bonuses, options to acquire IDF shares which vest based upon IDF and its consolidating subsidiaries, including TechStar and Heyden Wegman, achieving all or certain pro-rated portions of annual pre-tax income targets in each of fiscal years ending July 31, 1998, 1999 and 2000. In the event that any or all of such IDF Options do not vest, the number of shares of IDF common stock that would have been issued upon the exercise of such IDF Options shall be issued to the Company as additional merger consideration. Messrs. Robert M. Rubin and Lawrence Kaplan, the Chief Executive Officer and Chairman of the Board and a Former Director of the Company, respectively, are also principal stockholders and members of the board of directors of IDF and were such prior to the consummation of the IDF merger. Pursuant to the terms of the IDF Merger Agreement, Mr. Rubin converted an $800,000 loan previously made to IDF into Preferred Series B stock of IDF which is convertible into 400,000 shares of IDF common stock. In addition, through GV Capital Inc., an affiliate of Mr. Kaplan, IDF offered $3,000,000 of five year, 8.0% notes convertible into IDF Series A Convertible Preferred Stock at 1.25 per share. $600,000 of such notes were purchased by Messrs. Kandel, Luciani and Moskona. Mr. Kaplan's affiliate received separate compensation for acting as placement agent in connection with such private offering of IDF securities. During the year ended July 31, 1998, IDF sold, through GV Capital Inc., a total of $3,000,000 of IDF's five year Convertible Notes convertible into IDF Series A and C Preferred Stock at $1.25 per share which were subsequently converted into 1,400,000 shares of IDF Series A Preferred Stock and 1,080,000 shares of IDF Convertible Series C Preferred stock. The Series A, B and C Convertible Preferred Stock of IDF have voting rights that are the same as IDF Common Stock, thus subsequent to the conversion of said Notes, the Company owns approximately 48% of the voting capital stock as of July 31, 1998. As a result of the decrease in the ownership percentage by the Company to less than 50%, the Company has accounted for the results of the operations of IDF using the equity method of accounting effective as of August 1, 1997. F-14 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 3. ACQUISITIONS (CONTINUED) The allocation of purchase price to each of TechStar's assets and liabilities at the date of acquisition, as determined in accordance with the purchase method of accounting is presented in the table below:
Cash ............................................................................... $ 74,000 Accounts receivable................................................................. 1,150,000 Intangible assets................................................................... 4,079,000 Property and equipment.............................................................. 50,000 Other assets........................................................................ 14,000 Accounts payable and accrued liabilities............................................ (941,000) -------------------- NET ASSETS ACQUIRED................................................................. $ 4,426,000 -------------------- --------------------
The intangible assets acquired are being amortized using the straight-line method over 25 years. Pro forma financial information has not been provided relating to the acquisition of BTS because the effect is immaterial. As discussed previously, on August 1, 1997 the Company acquired IDF International, Inc. as a result of its merger of TechStar into IDF. Pro Forma The following unaudited pro forma summary combines the consolidated results of operations as if the aforementioned acquisitions had been acquired as of the beginning of each period presented, including the impact of certain adjustments.
YEAR ENDED JULY 31, -------------------------------- 1998 1997 --------------- --------------- Net sales......................................................... $ 173,414,000 $ 175,396,000 Net loss ......................................................... $ (9,654,000) $ (25,885,000) Basic and diluted loss per share.................................. $ (0.85) $ (2.61)
The pro forma results are not necessarily indicative of what actually would have occurred if the acquisitions had been in effect for the entire periods presented. In addition, they are not intended to be a projection of future results and do not reflect any synergies that might be achieved from combined operations. F-15 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 4. INVENTORIES Inventories consist of the following:
JULY 31, --------------------------------- 1998 1997 --------------- --------------- Parts ........................................................................... $ 8,535,000 $ 8,159,000 Equipment new and used.............................................................. 64,956,000 56,759,000 --------------- --------------- $ 73,491,000 $ 64,918,000 --------------- --------------- --------------- ---------------
At July 31, 1998 and 1997, approximately $23,080,000 and $18,452,000, respectively, of equipment was being held for rent by Western. Equipment in the rental fleet at Western has been classified as non-current assets. (See Note 5) In addition, equipment in the lease fleet at Western has been reclassified as lease equipment in non-current assets. In fiscal year 1998, rentals of all equipment were generally charged by Western to cost of goods sold at an amount equal to seventy percent of the rental payments received. Western previously used a depreciation estimate on rental fleet equipment equal to eighty percent of the rental payments received. This change in accounting estimate was made to more closely match the actual reduction in the market value of rented equipment to the resulting book value after depreciation. In fiscal 1998, this change resulted in a decrease in cost of goods sold of $1,286,000. 5. FIXED ASSETS Fixed assets consist of the following:
JULY 31, ---------------------------------- 1998 1997 ---------------- --------------- Machinery and equipment............................................................. $ 3,236,000 $ 2,647,000 Furniture and office equipment...................................................... 2,309,000 2,490,000 Computer equipment.................................................................. 1,146,000 2,277,000 Land ........................................................................... 840,000 840,000 Building and leasehold improvements................................................. 4,280,000 3,815,000 Vehicles ........................................................................... 1,291,000 1,095,000 ---------------- --------------- 13,102,000 13,164,000 Less: Accumulated depreciation..................................................... (4,407,000) (3,634,000) ---------------- --------------- Property plant & equipment, net..................................................... $ 8,695,000 $ 9,530,000 ---------------- --------------- ---------------- --------------- Rental equipment fleet, net......................................................... $ 23,080,000 $ 18,452,000 ---------------- --------------- ---------------- --------------- Leased equipment fleet, net......................................................... $ 2,760,000 $ - ---------------- --------------- ---------------- ---------------
F-16 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS Equipment in the rental fleet has been reclassified as rental equipment fleet in fixed assets. In addition, equipment in the lease fleet has been reclassified as lease equipment in fixed assets. 6. BORROWINGS Borrowings consist of the following:
JULY 31, --------------------------------- 1998 1997 --------------- --------------- Borrowings under floor financing lines.............................................. $ 86,924,000 $ 55,490,000 Line of credit with bank............................................................ - 6,849,000 Term and mortgage notes payable..................................................... 2,039,000 6,766,000 Other third party borrowings........................................................ - 1,592,000 --------------- --------------- Total borrowings............................................................. 88,963,000 70,697,000 --------------- --------------- Less: Current portions: Borrowings under floor financing lines........................................... 11,038,000 32,177,000 Line of credit with bank......................................................... - 6,849,000 Term and mortgage notes payable.................................................. 883,000 Short term borrowings............................................................ 75,886,000 28,215,000 --------------- -------------- Total current borrowings..................................................... 87,807,000 67,241,000 --------------- --------------- Long term borrowings......................................................... $ 1,156,000 $ 3,456,000 --------------- --------------- --------------- ---------------
Scheduled principal payments of all borrowings are as follows:
1999 ............................................................................... $ 87,807,000 2000................................................................................ 63,000 2001................................................................................ 68,000 2002................................................................................ 74,000 2003................................................................................ 951,000 Thereafter.......................................................................... - ---------------- $ 88,963,000
Floor Financing Lines Western has an inventory floor financing line with Case Credit Corporation, the financing operation of Case Corporation, to purchase Case inventory and with other finance companies affiliated with other equipment manufacturers. The terms of these agreements provide for a one-month to six-month interest free term followed by a term during which interest is charged at rates ranging from prime (8.50% at July 31, 1997) or prime plus 2% (10.50% at July 31, 1998). Principal payments are generally due at the earlier of sale of the equipment or eight to forty-eight months from the invoice date. At July 31, 1998 there was approximately $11,038,000 outstanding under floor financing arrangements. F-17 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 6. BORROWINGS (continued) Western also has a credit facility with Seafirst Bank to provide up to $22,000,000 for the purchase of new and used equipment held for sale as well as equipment held for rental. The credit line calls for monthly interest payments at prime (8.50% at July 31, 1998). Principal payments are generally due in periodic installments over terms ranging from twelve months to twenty-four months from the borrowing date. This credit facility expired July 1, 1998. In June, 1997 Western obtained a $75,000,000 inventory flooring and operating line of credit through Deutsche Financial Services ("DFS"). The DFS credit facility is a three year, floating rate facility based on prime with rates between .50% under prime to 1.00% over prime depending upon the amount of total borrowing under the facility. Amounts may be advanced against Western's assets including accounts receivable, parts, new and used equipment and rental fleet. Interest payments on the outstanding balances are due monthly. Total amounts outstanding as of July 31, 1998 under this facility were $75,886,000. At July 31, 1998 Western was in technical default of the leverage covenant in the Deutsche Financial Services Loan Agreement. The Company obtained a waiver for the period July 31, 1998 through September 30, 1998. There is no guarantee that DFS will not call this debt at any time after September 30, 1998. The amount due to Deutsche Financial Service is already classified as current for the year ended July 31, 1998. Other Borrowings Western entered into various term notes with Case for the purchase of used equipment, parts, shop tools, furniture and fixtures and accounts receivable. The terms of these notes range from 12 to 48 months, provide for interest charges at various rates up to prime plus 2% and are collateralized by the related equipment, parts and fixed assets. As of July 31, 1998 and 1997, approximately $133,000 and $2,456,000, respectively was outstanding under these notes. In March 1996, Western consummated an agreement with an institutional lender for a conventional mortgage on the property in the amount of $1,330,000, secured by real estate. The agreement calls for principal and interest payments over a seven year term using a fifteen year amortization period. The note cannot be prepaid during the first two years of its term. On July 31, 1997 approximately $6,849,000 was outstanding under a line of credit with a commercial bank, the principal of which bears interest at LIBOR plus 1.25%. On October 31, 1997, the Company paid the total balance outstanding on this line. F-18 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 7. INCOME TAXES The provision (benefit) for income taxes from continuing operations comprises the following:
YEAR ENDED JULY 31, --------------------------------------------------- 1998 1997 1996 --------------- ---------------- ---------------- Current: Federal........................................................ $ 1,227,000 $ (422,000) $ 1,429,000 State ......................................................... 162,000 119,000 242,000 --------------- --------------- --------------- 1,389,000 (303,000) 1,671,000 ---------------- ---------------- --------------- Deferred: Federal........................................................ (32,000) (357,000) (779,000) State ......................................................... (3,000) (43,000) (2,000) ---------------- --------------- --------------- (35,000) (400,000) (781,000) ---------------- --------------- --------------- $ 1,354,000 $ (703,000) $ 890,000 ---------------- --------------- --------------- ---------------- --------------- ---------------
The principal reasons for the variation from the customary relationship between income taxes at the statutory federal rate and that shown in the consolidated statement of income are as follows:
YEAR ENDED JULY 31, --------------------------------------------------- 1998 1997 1996 --------------- --------------- ---------------- Statutory federal income tax rate.................................. $ 495,000 $ (2,797,000) $ 672,000 Valuation allowance................................................ 590,000 1,966,000 - State income taxes, net of federal income tax benefit.............. 159,000 76,000 240,000 Other .......................................................... 110,000 52,000 (22,000) --------------- --------------- ---------------- $ 1,354,000 $ (703,000) $ 890,000 --------------- --------------- ---------------- --------------- --------------- ----------------
F-19 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 7. INCOME TAXES (continued) Temporary differences and carryforwards which give rise to a significant portion of deferred tax assets and liabilities are as follows:
JULY 31, ----------------------------------- 1998 1997 --------------- ----------------- Depreciation and amortization....................................................... $ (780,000) $ (5,000) Valuation allowance................................................................. (4,377,000) (8,156,000) Deferred income..................................................................... - (170,000) Other ........................................................................... - (234,000) --------------- --------------- Gross deferred tax liabilities...................................................... (5,157,000) (8,565,000) ---------------- --------------- Inventory reserve................................................................... 775,000 401,000 Bad debt reserve.................................................................... 261,000 180,000 Accrued vacation and bonuses........................................................ 98,000 128,000 Other ........................................................................... 532,000 236,000 Loss carryforwards.................................................................. 3,186,000 6,541,000 Loss on Western initial public offering............................................. 131,000 131,000 Stock options....................................................................... 782,000 782,000 Operating lease..................................................................... - 190,000 Intangible assets................................................................... - 529,000 Deferred compensation............................................................... - 203,000 Impairment losses................................................................... - 2,111,000 Legal Settlement.................................................................... - 501,000 --------------- --------------- Gross Deferred Tax Assets........................................................... 5,765,000 11,933,000 --------------- --------------- $ 608,000 $ 3,368,000 --------------- ----------------- --------------- -----------------
At July 31, 1998, the Company had federal income tax loss carryforwards of $9,371,000 which will begin to expire in 2011. Utilization of such net operating losses will be subject to annual limitations in the event of a change in ownership of the Company of more than 50%. 8. SHAREHOLDERS' EQUITY A total of 976,539 shares of the Company's Series B-1 convertible preferred stock were issued in September 1996 in connection with the acquisition of ConnectSoft, Inc. Such shares have a $3.50 per share liquidation value and are convertible into a minimum of 976,539 and a maximum of 2,929,617 shares of the Company's common stock pursuant to achieving certain performance goals and other criteria described in the merger agreement. The present conversion ratio for the B-1 convertible preferred stock is one for one. During the year ended July 31, 1998 a total of 252,677 shares were converted to common stock at the ratio of one for one. F-20 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 8. SHAREHOLDERS' EQUITY (continued) In January of 1997, the Company issued 400,000 shares of Series B-2 preferred stock in a private placement. Proceeds from the private placement totaled $10,000,000. The Series B-2 preferred stock carry a $25 per share liquidation preference over the Company's common stock, and pay a 7% cumulative quarterly dividend, payable at the Company's option in cash or in additional shares of Series B-2 preferred stock. As of July 31, 1997, a total of 280,000 of the preferred shares had been converted into approximately 2,031,000 common share at prices ranging from $3.31 to $3.80. All of the remaining 120,000 preferred shares outstanding at July 31, 1997 were converted into approximately 585,000 shares at a price of $5.37 per share in September, 1997, leaving no shares outstanding at July 31, 1998. The shares provide for a discount conversion feature which has been accounted for as an imputed dividend to the preferred shareholders. Total dividend expense was $24,000 and $2,403,000 for the fiscal years ending July 31, 1998 and 1997. A total of $2,121,000 was recognized as a dividend imputed by the discount conversion feature of the preferred shares for the year ended July 31, 1997. All of the dividends were paid in additional shares of common stock concurrent with the conversion of the preferred shares to common stock. In addition, purchasers of the preferred shares acquired 350,000 five-year warrants at a purchase price of $.01 per warrant, entitling the holders to purchase 350,000 shares of Company common stock at $8.58 per share. In the event of an initial public offering of common stock of the Company's Exodus subsidiary, purchasers of the preferred shares shall have the right to purchase, for $.01 each, 350,000 five year warrants to purchase up to 350,000 shares of Exodus common stock at an exercise price equal to the initial price per share offered to the public. On September 30, 1997, the Company received a loan in the amount of $500,000 from an unrelated third party. The loan carried interest at the annual rate of 10% and was payable on demand. In November, 1997 the Company exchanged 250,000 shares of common stock in full settlement of the debt and related accrued interest. In May 1997, the Company issued 192,754 shares of common stock valued at $771,000 as compensation to a director of the Company. F-21 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 8. SHAREHOLDERS' EQUITY (continued) On February 25, 1994, the Company completed a public offering of 920,000 units at $5.25 per unit, each unit consisting of one share of common stock, $.01 par value, and one redeemable common stock purchase warrant. Each warrant entitled the holder to purchase one share of common stock until July 31, 1998, at an exercise price of $7.50. During fiscal 1998, the exercise period for the 920,000 warrants was extended to July 31, 1999. The warrants are subject to redemption by the Company at a redemption price of $.10 per warrant under certain circumstances. Western has been authorized to issue 10,000,000 shares of "blank check" preferred stock, with respect to which all the conditions and privileges thereof can be determined solely by action of Western's Board of Directors without further action of its shareholders. As of July 31, 1998 none were issued and outstanding. 9. DISCONTINUED OPERATIONS Technology In April, 1998, the Company approved a formal plan to dispose of or close down the remaining operations of the Technology Group of Companies including Exodus Technologies, Connectsoft, Inc., Connectsoft Communications Corp. and InterGlobe Networks, Inc. Although the results of these subsidiaries have previously been included in the consolidated financial statements, the subsidiaries were operated as a separate line of business whose products, activities and customers differed from other operations of the Company. Based upon this determination, the results of operations of these subsidiaries have been accounted for as discontinued operations and accordingly, their operating results are segregated in the accompanying statements of operations. All of the above mentioned Companies will either cease operations prior to July 31, 1998, with the exception of CCC, whose asset sale transaction is expected to close before November 30, 1998, Such asset sale will result in a gain of approximately $3,776,000. The gain is offset by costs and expenses of $2,296,000 representing the actual and estimated operating losses and closure costs from the April 30, 1998 measurement date until the time of the disposition or closure. The net gain of $1,480,000 has been included under the caption Net liabilities of discontinued operations in the accompanying consolidated balance sheets and will be recognized in fiscal 1999 upon the closing of the asset sale transaction. F-22 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 9.DISCONTINUED OPERATIONS (Continued) The composition of the net liabilities of discontinued operations is as follows:
Fixed assets, net................................................................... (949,000) Accounts Payable and accrued liabilities ........................................... 417,000 Note Payable........................................................................ 1,500,000 Capitalized lease obligations....................................................... 2,808,000 Deferred losses through closure..................................................... (2,296,000) ----------------- Deferred gain on discontinued operations............................................ $ 1,480,000 ----------------- -----------------
Revenues for the Technology group of companies for the years ending July 31, 1998, 1997 and 1996 were $2,108,000, $2,524,000 and $0, respectively. On July 10, 1998, the Company entered into an agreement to sell substantially all of the assets of its Connectsoft subsidiary, including the network operating center to eGlobe, Inc., formally known as Executive TeleCard, Ltd. ("eGlobe"). As consideration for the assets, eGlobe will assume up to $4,500,000 of Connectsoft liabilities and leases, most of which have been guaranteed by the Company. Although eGlobe will be responsible for payment of those assumed liabilities, the assumption of such liabilities will not relieve the Company from its guarantees until such liabilities have been paid. The Company will also receive as additional consideration from eGlobe, on the earlier of two years from the closing of the sale to eGlobe or the resale of the Connectsoft business by eGlobe, 7.5% of the increase in value of the Connectsoft business. The Company anticipates that the transaction will close in November 1998. Sale of the Manufacturing Business Pursuant to the terms of an Asset Purchase Agreement, dated as of November 22, 1995, on January 19, 1996 all of the assets of the National O-Ring and Stillman Seal businesses (the "Manufacturing Business") were sold to, and substantially all of the liabilities associated with operation of the Manufacturing Business were assumed by, subsidiaries of Hutchinson Corporation (the "Hutchinson Transaction"). The Purchase Price for the Manufacturing Business was $24,500,000, $20,825,000 of which was paid in cash and the aggregate $3,675,000 balance F-23 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 9. DISCONTINUED OPERATIONS (Continued) was paid by delivery of two 24-month non-interest bearing promissory notes ("the "Notes") issued by Hutchinson. The Notes, which have been discounted for financial statement presentation by $172,000 at July 31, 1997 are non-interest bearing and guaranteed by Total America, Inc., the parent corporation of Hutchinson, whose securities are listed on the New York Stock Exchange. The discounted note balance of $3,503,000 at July 31, 1997 was paid in full during the year ended July 31, 1998. At the closing of the Hutchinson Transaction, the Company, Hutchinson (as guarantor) and Robert Rubin, who is the chairman and a director of the Company, entered into a five-year Non-Competition Agreement in favor of Hutchinson and its affiliates, pursuant to which Mr. Rubin and the Company agreed not to compete with the business acquired in the Hutchinson Transaction. Under the terms of the Non-Competition Agreement, Mr. Rubin will receive payments aggregating $200,000 over a seven-year period. In addition, Hutchinson engaged Mr. Rubin as a consultant to provide advisory services relating to the acquired Manufacturing Business over a seven-year period, for which services Mr. Rubin will receive payments aggregating $1,000,000. On January 19, 1996, as a result of the Hutchinson Transaction, Mr. John Shahid, the former president, chief executive officer and director of the Company and the Company entered into a Termination Agreement whereby Mr. Shahid resigned as an officer and director of the Company and each of its subsidiaries in consideration for the payment of an aggregate of $816,000, representing salary payments under his Employment Agreement through December 31, 1998, as well as a bonus payment for fiscal year 1996 in the amount of $90,000. The Termination Agreement also provided that the Company retained Mr. Shahid as a consultant for a period of two years, commencing April 1, 1996, for which consulting services he was paid quarterly an aggregate of $200,000. Benefits under the termination agreement as well as the two-year consulting agreement were fully expensed during fiscal 1996. Additionally, the Company recognized $506,000 in compensation expense resulting from amendments made to its employee stock option plans (see Note 11). These charges, along with other costs of the Hutchinson Transaction were included in determining the gain on the sale of the Manufacturing Business. F-24 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 9.DISCONTINUED OPERATIONS (Continued) Details of this transaction are as follows:
Sales price........................................................ $ 23,862,000 Basis of net assets sold........................................... (9,634,000) Expenses of sale................................................... (1,726,000) ------------------ Gain on sale before income taxes................................... 12,502,000 Income tax provision............................................... (5,042,000) ------------------ Gain on sale of wholly owned subsidiaries.......................... $ 7,460,000 ------------------ ------------------
Although the results of National O-Ring and Stillman Seal subsidiaries have previously been reported in the consolidated financial statements, these subsidiaries were operated as a separate line of business whose products, activities and class of customers differed from other operations of the Company. Based upon this determination, the disposal of these two subsidiaries has been accounted for as discontinued operations and accordingly, their operating results are segregated in the accompanying statement of operations. Results of National O-Ring and Stillman Seal through the date of disposition are as follows:
5-1/2 MONTHS ENDED JANUARY 19, 1996 --------------- Net sales........................................................................... $ 16,928,000 Costs and expenses.................................................................. 16,410,000 --------------- Income before taxes................................................................. 518,000 Provision for income taxes.......................................................... 203,000 --------------- Net income.......................................................................... $ 315,000 --------------- ---------------
10. COMMITMENTS AND CONTINGENCIES LEASE COMMITMENTS The Company and Western lease certain facilities and certain computer equipment and software under non-cancelable lease agreements. The building portion of four of the Western's facility leases qualify under SFAS 13 as "capital leases" (i.e., an acquisition of an asset and incurrence of a liability). F-25 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 10. COMMITMENTS AND CONTINGENCIES (continued) The remaining facility lease agreements have terms ranging from month-to-month to five years. Certain of the facility lease agreements provide for options to renew and generally require the Company and Western to pay property taxes, insurance, and maintenance and repair costs. Total rent expense under all operating leases aggregated $1,833,000, $1,971,000 and $1,100,000 for the fiscal years 1998, 1997 and 1996, respectively. The computer equipment leases expire in 1999 and meet certain specific criteria to be accounted for as capital leases. Assets recorded under capital leases are as follows:
JULY 31, -------------------------------------------------- 1998 1997 1996 --------------- --------------- --------------- Capitalized asset value........................................... $ 3,036,000 $ 3,836,000 $ 3,668,000 Less: Accumulated amortization................................... (315,000) (448,000) (287,000) --------------- --------------- --------------- $ 2,721,000 $ 3,388,000 $ 3,381,000 --------------- --------------- --------------- --------------- --------------- ---------------
Future minimum lease payments under all non-cancelable leases as of July 31, 1998 are as follows:
CAPITAL OPERATING YEAR ENDING JULY 31, LEASES LEASES --------------- -------------- 1999 .......................................................................... $ 394,000 $ 1,609,000 2000 ........................................................................... 286,000 1,346,000 2001 ........................................................................... 312,000 1,059,000 2002 ........................................................................... 338,000 608,000 2003 ........................................................................... 363,000 410,000 Thereafter.......................................................................... 6,032,000 6,400,000 --------------- -------------- Total annual lease payments......................................................... 7,725,000 $ 11,432,000 --------------- -------------- --------------- -------------- Less: Amount representing interest with imputed rates from 6% to 15%............... 4,831,000 --------------- Present value of minimum lease payments............................................. 2,894,000 Less: Current portion.............................................................. 67,000 --------------- Long-term portion................................................................... $ 2,827,000 --------------- ---------------
Other Contingencies The Company is guarantor on certain liabilities, including the capital lease obligations and the amounts due to UPS assumed by eGlobe as described in Note 9. F-26 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 10. COMMITMENTS AND CONTINGENCIES (continued) Western issues purchase orders to Case Corporation for equipment purchases. Upon acceptance by Case, these purchases become non-cancellable by Western. As of July 31, 1998 the total of such purchase orders was $3,789,000. As of July 31, 1998 Western had entered into sales contracts containing repurchase obligations totaling approximately $3,083,000. Subsequent to July 31, 1998, Western entered into additional sales contracts containing repurchase obligations totaling approximately $1,289,000. Legal Proceedings Except as set forth below, there are no pending material legal proceeds in which the Company or any of its subsidiaries is a party, or to which any of their respective properties are subject, which either individually or in the aggregate, may have a material adverse effect on the results of operations or financial position of the Company. In May, 1998, a lawsuit was filed on behalf of the Company in a purported shareholder derivative action against certain directors of the Company. The lawsuit alleges that the defendant directors breached their fiduciary responsibilities of due care and loyalty to the Company and its stockholders in connection with a letter of credit guarantee by the Company for ERD Waste Corp., the sale of certain businesses of the Company to Hutchinson Corporation, and the delisting of the Company's common stock and publicly traded warrants from the Nasdaq Stock Market. The complaint did not specify the amount of damages sought. In June, 1998 a shareholder class action was filed against the certain directors of the Company alleging that the defendant directors breached their fiduciary responsibilities of due care and loyalty to the Company and its stockholders in connection with a letter of credit guarantee by the Company for ERD Wast Corp., the sale of certain businesses of the Company to Hutchinson Corporation, and the delisting of the Company's common stock and publicly traded warrants from the Nasdaq Stock Market. The Company is a named defendant in a matter brought by an individual in Los Angeles County Superior Court alleging that the Company conspired with her ex-husband to conceal community property assets from her in connection with her recent divorce. The plaintiff is requesting damages against the Company and the other defendants in the approximate amount of $8,000,000 plus punitive damages. The Company believes the plaintiff's claim is without merit and intends to defend the lawsuit vigorously. F-27 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 11. STOCK OPTION PLANS Employee Stock Bonus Plan (The "Transfer Plan") In March 1991, the Company granted incentive options under the Transfer Plan to purchase an aggregate of 38,496 shares of common stock at purchase prices of $1.63 and $6.50 per share. During fiscal 1996, 23,558 options were exercised under the Transfer Plan. All options granted under this plan have been exercised. The 1991 Employee Incentive Stock Option Plan (The "1991 Stock Option Plan") Key employees of the Company can receive incentive options to purchase an aggregate of 750,000 shares of common stock at initial exercise prices equal to 100% of the market price per share of the Company's common stock on the date of grant. The 1991 Stock Option Plan was approved by the Board of Directors and shareholders in June 1991 and became effective from May 21, 1991. In the fiscal year ending July 31, 1997, 126,550 options were granted to the principal shareholder under this plan. No additional options were issued under this plan in the fiscal year ending July 31, 1998. Stock Option Bonus Plan (The "Stock Bonus Plan") The Stock Bonus Plan was established in October 1991, and granted certain key employees non-qualified options to acquire 171,000 shares of stock, which options were only exercisable in the event that the Company realized certain targeted annual earnings in fiscal years 1992-1994. The Company did not meet its annual earnings target in 1992; however, it met its annual earnings targets in 1993 and 1994 and 114,000 options were granted at exercise prices equal to the market price at the date of grant. During the fiscal years ending July 31, 1998, 1997 and 1996 a total of 0, 14,375 and 99,625 options were exercised, respectively, under the Stock Bonus Plan. Amendments to the Plans On May 5, 1995, the Company's Board of Directors approved the re-pricing of options outstanding under all three plans. With the exception of the $1.63 options under the Transfer Plan, all outstanding options were repriced to $3.125, which was the closing market price on May 5, 1995. In connection with the Hutchinson Transaction described in Note 9, the Company amended the Transfer Plan, 1991 Stock Option Plan and the Stock F-28 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 11. STOCK OPTION PLANS (continued) Bonus Plan by accelerating the vesting period and extending the exercise term for all options under these plans. The amendment was subject to the consummation of the Hutchinson Transaction and affected 761,008 options outstanding on the closing date. The difference between the fair market price on the date of closing and the respective exercise prices applied to the options totaled $506,000 which was included as an expense in determining the net gain on Hutchinson Transaction. 1996 Employee Stock Option Plan (The "1996 Plan") In April 1996, the Company's Board of Directors authorized and approved the creation of the 1996 Plan for which two million shares of the Company's common stock has been reserved. Concurrent with the 1996 Plan's adoption, options to acquire 800,000 shares at an exercise price of $3.78 per share were granted to the Company's principal shareholder and management. In May, options to acquire an additional 250,000 shares at an exercise price of $5.25 were granted to two other employees. All exercise prices represented the fair market value of the Company's common stock on the date of grant. Options for 100,000 shares granted at $5.25 have been canceled and options for 126,550 shares issued to the principal shareholder at an exercise price of $3.78 have been canceled. The 1996 Plan as originally adopted required shareholder approval which had not been obtained by the end of the fiscal year. On July 30, 1996, the Board amended the 1996 Plan so that shareholder approval was not required. The difference between the fair market value on the date of the amendment and the respective exercise prices applied to the options was recognized as compensation expense based on the options' vesting schedule. This resulted in a fiscal 1996 expense of approximately $1,671,000 and $293,000 of deferred compensation to be recognized over the next two fiscal years. During the year ended July 31, 1997, a total of 605,000 options were granted to employees under the 1996 Plan at prices ranging from $4.375 to $5.125. All exercise prices represented the fair market value of the Company's common stock on the date of grant. These options generally vest one third upon issuance and one-third upon the first and second anniversary date of the issuance. The life of the options issued under the 1996 plan is five years from the date of the grant. Other Options and Warrants Granted Prior to fiscal 1996, the Company granted warrants and options to certain consultants of the Company in consideration for services rendered to the Company. Of these, warrants and options for 420,000 shares were outstanding at July 31, 1998 with exercise prices ranging from $3.13-$7.00. F-29 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 11. STOCK OPTION PLANS (continued) During fiscal 1996, options for 100,000 shares with an exercise price of $5.25 were granted to the president of one of the Company's subsidiaries. Of these options, all were unexercised and 50,000 were vested at July 31, 1997. During the year ending July 31, 1998, certain of the consultants exercised warrants at a price of $6.30, which resulted in the issuance of 57,600 additional shares of common stock and 57,600 publicly traded warrants. Additionally, 50,000 options were exercised at a price of 4.75 resulting in the issuance of 50,000 shares of common stock. Pursuant to the acquisition of Connectsoft Inc., the Company granted 300,000 options at a price of $6.625. At July 31, 1998, a total of 25,000 of these options remain outstanding. The decrease is due to the cancellation of 275,000 options. For the year ended July 31, 1998, the Company issued 150,000 options to non-employees pursuant to a settlement of litigation in August of 1997. Such settlement was accrued in the fiscal year ending July 31, 1997 in the amount of $300,000, representing their estimated fair value using the Black Scholes method of option valuation. Western Stock Option Plan In March 1995, the Company, as the sole shareholder of Western, approved Western's 1995 Stock Option Plan, as previously adopted by the Board of Directors (the "Plan"), under which key employees, officers, directors and consultants of Western can receive incentive stock options and non-qualified stock options to purchase up to an aggregate of 300,000 shares of common stock. In December 1995, the shareholders amended the 1995 stock option plan to increase the number of shares underlying the plan from 300,000 to 850,000 shares. In December 1996 the stockholders amended the 1985 stock option plan to increase the number of shares underlying the plan to 1,500,000 shares. The Plan provides that the exercise price of incentive stock options be at least equal to 100 percent of the fair market value of the common stock on the date of grant. With respect to non-qualified stock options, the Plan requires that the exercise price be at least 85 percent of fair value on the date such option is granted. Upon approval of the Plan, Western's Board of Directors awarded non-qualified stock options for an aggregate of 200,000 shares, all of which provide for an exercise price of $6.50 per share. On December 28, 1995, the exercise price of the options previously granted was lowered to $4.50 per share, the market price as of that date. All options granted upon approval of the Plan are exercisable commencing August 1, 1996 and expire on July 31, 2005. On August 1, 1996, Western's Board of Directors approved the grant of an additional 347,000 options to employees, directors and consultants of Western at an exercise price of $4.375 per share, the market price as of the F-30 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 11. STOCK OPTION PLANS (continued) date of grant. These options vest ratably over a two-year period commencing August 1, 1996. In January, 1998, Western's shareholders approved an amendment to this plan providing for the grant on August 1 of each fiscal year, a total of 5,000 options to each non-employee director of Western. The options have an exercise price equal to the market price on the date of the grant and a term of 5 years from the date of the grant. During the fiscal year ended July 31, 1998 Western issued a total of 714,000 options at average exercise price of $4.62 and an expiration date of 5 years from the date of grant. The following table includes option information for the Company's plans:
WEIGHTED AVERAGE FAIR VALUE OF NUMBER OF WEIGHTED OPTION STOCK OPTION ACTIVITY SHARES EXERCISE PRICE GRANTED --------------------- --------------- -------------- ------------- July 31, 1995 1,182,000 $3.70 Options granted 1,150,000 5.01 Options exercised (527,000) 3.13 Options canceled (100,000) 5.25 -------------- July 31, 1996 1,705,000 5.07 Options granted 3,015,000 5.79 3.032 Options exercised (236,000) 3.57 Options canceled (346,000) 5.39 -------------- July 31, 1997 4,138,000 5.55 Options granted 150,000 6.50 2.000 Options exercised (50,000) 4.75 Options canceled (2,366,000) 5.97 -------------- July 31, 1998 1,872,000 4.55 -------------- --------------
F-31 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 11. STOCK OPTION PLANS (continued) The following table summarizes stock options outstanding and exercisable for the Company at July 31, 1998:
OUTSTANDING EXERCISABLE ---------------------------------------------- ------------------------------ Weighted Weighted Weighted Average Average Average Remaining Exercise Exercise Exercise Price Range Shares Life Price Shares Price - -------------------- -------------- -------------- ---------- ----------------- --------- $3.13 to 3.78 857,000 2.5 $3.64 857,000 $3.64 $4.38 to 4.75 275,000 2.4 4.51 217,000 4.55 $5.13 to 5.50 407,000 2.3 5.16 270,000 5.15 $6.00 to 8.50 333,000 2.8 6.36 333,000 6.36 -------------- ----------------- $3.13 to 8.50 1,872,000 2.5 4.58 1,677,000 $4.55 -------------- ----------------- -------------- -----------------
The Company has adopted the disclosure-only provisions of Statement of Financial Accounting Standards No. 123. "Accounting for Stock-Based Compensation." Accordingly, no compensation cost has been recognized for options granted to employees and directors. If compensation cost for the Company's stock option plans had been determined based on the fair value at the grant date for awards in fiscal 1998 and fiscal 1997 in accordance with the provisions of SFAS No. 123, the Company's net loss per share would have changed to the pro forma amounts indicated below:
YEAR ENDED JULY 31, ---------------------------------- 1998 1997 --------------- ---------------- Net loss, as reported............................................................... $ (9,615,000) $ (27,257,000) Net loss, pro forma................................................................. $ (10,284,000) $ (29,238,000) Net basic and diluted loss per share, as reported................................... $ (0.85) $ (2.75) Net basic and diluted loss per share, pro forma..................................... $ (0.91) $ (2.95)
The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following assumptions:
YEAR ENDED JULY 31, -------------------------------- 1998 1997 --------------- -------------- Expected volatility................................................................. .79 .67 - 0.73 Risk-free interest rate............................................................. 6.11% 6.08% - 6.57% Expected life of options in years................................................... 5.0 5.0 Expected dividend yield............................................................. 0.00% 0.00%
F-32 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 12. INTANGIBLE ASSETS Intangible and other assets consist of the following:
JULY 31, --------------------------------- 1998 1997 --------------- --------------- Goodwill .......................................................................... $ 3,044,000 $ 8,104,000 Noncompete agreement................................................................ 42,000 175,000 Other assets........................................................................ 527,000 303,000 --------------- --------------- $ 3,613,000 $ 8,582,000 --------------- --------------- --------------- ---------------
Goodwill is amortized over lives ranging from 25 to 40 years and the non-compete agreement is amortized over 2 years. 13. SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION AND SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES INTANGIBLE ASSETS The Company paid interest of $5,221,000, $4,307,000 and 1,877,000 during the fiscal years 1998, 1997, and 1996, respectively. The Company paid $1,097,000, $1,621,000 and $2,084,000 in income taxes, net of refunds, during fiscal 1998, 1997 and 1996, respectively. In December 1997 a capital lease obligation of $397,000 was incurred by Western when they entered into a 20 year lease for the Yuba City, California facility. In July 1997 a capital lease obligation of $292,000 was incurred by Western when they entered into a lease for computer equipment and software. In June 1997 a capital lease obligation of $680,000 was incurred by Western when they entered into a 20 year lease for the Kent, Washington facility. In February 1996, Western acquired the assets and operations of two stores in California for approximately $630,000 in cash, $1,590,000 in installment notes payable and the assumption of $3,965,000 in inventory floor plan debt. In addition, a capital lease obligation of $740,000 was incurred related to the lease of the Sacramento facility. On July 31, 1996, the Company acquired ConnectSoft in exchange for shares of its Series B-1 Preferred Stock valued at $6,132,000 and incurred $1,352,000 in acquisition costs. F-33 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 13. SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION AND SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES INTANGIBLE ASSETS (continued) A capital lease obligation of $926,000 was incurred in fiscal 1996 when the Company consummated a sale-leaseback transaction. A note receivable of $3,037,000 arose due to the sale of the Manufacturing Group in fiscal 1996. Capital lease obligations of $356,000 were incurred during the year ended July 31, 1997 when the Company entered into various leases for computer hardware and software. Western has consummated various acquisitions using, in part, the assumption of notes payable and the issuance of Western's common stock and notes payable. Such non-cash transactions have been excluded from the statement of cash flows. 14. RELATED PARTIES The real property and improvements used in connection with the Sacramento Operations, and upon which the Sacramento Operation is located, were sold by Case for $1,500,000 to the McLain-Rubin Realty Company, LLC ("MRR"), a Delaware limited liability company the owners of which are Messrs. C. Dean McLain, the President and a director of Western, and Robert M. Rubin, the Chairman and a director of Western. Simultaneous with its acquisition of the Sacramento Operation real property and improvements, MRR leased such real property and improvements to Western under the terms of a 20 year commercial lease agreement dated March 1, 1996 with Western paying an initial annual rate of $168,000. Under the lease, such annual rate increases to $192,000 after five years and is subject to fair market adjustments at the end of ten years. In addition to base rent, Western is responsible for the payment of all related taxes and other assessments, utilities, insurance and repairs (both structural and regular maintenance) with respect to the leased real property during the term of the lease. In accordance with SFAS 13, the building portion of the lease is being accounted for as a capital lease (see Note 10) while the land portion of the lease qualifies for treatment as an operating lease. On June 1, 1997, the real property and improvements used in connection with the Sahlberg operation located in Kent, Washington, was purchased by McLain-Rubin Realty Company II, LLC ("MRR II"), a Delaware limited liability company, the owners of which are Messrs. C. Dean McLain, the President and a director of Western, and Robert M. Rubin, the Chairman and a director of Western. Simultaneous with its acquisition of the Kent, Washington, real property and improvements, MRR II leased such real property and improvements to Western under the terms of a 20-year commercial lease agreement dated June 1, 1997 with Western paying an initial annual rate of $205,000. Under the lease, such annual rate increases to $231,000 after five years and is subject to additional adjustments at the end of ten and fifteen years. In addition to base rent, Western is responsible for the payment of all related taxes and other assessments, utilities, insurance, and repairs (both structural and regular maintenance) with respect to the leased real property F-34 14. RELATED PARTIES (continued) during the term of the lease. In accordance with SFAS 13, the building portion of the lease is being accounted for as a capital lease (see Note 10) while the land portion of the lease qualifies for treatment as an operating lease. On December 11, 1997, the real property and improvements used in connection with Case's Yuba City, California operation, was purchased by McLain-Rubin Realty Company III, LLC ("MRR III"), a Delaware limited liability company, the owners of which are Messrs. C. Dean McLain, the President and a director of Western, and Robert M. Rubin, the Chairman and a director of Western. Simultaneous with its acquisition of the Yuba City, California real property and improvements, MRR III leased such real property and improvements to Western under the terms of a 20-year commercial lease agreement dated effective December 11, 1997 with Western paying an initial annual rate of $54,000. Under the lease, such annual rate increases to $59,000 after five years and is subject to additional adjustments at the end of ten and fifteen years. In addition to base rent, Western is responsible for the payment of all related taxes and other assessments, utilities, insurance, and repairs (both structural and regular maintenance) with respect to the leased real property during the term of the lease. In accordance with SFAS 13, the building portion of the lease is being accounted for as a capital lease (see Note 10) while the land portion of the lease qualifies for treatment as an operating lease. On February 9, 1996, the Company loaned an aggregate of $450,000 to Diplomat Corporation ("Diplomat") in connection with Diplomat's acquisition of BioBottoms, Inc. Diplomat is a public company of which Robert Rubin serves as a director. Before the BioBottoms, Inc. transaction, Mr. Rubin held approximately 22% of Diplomat's outstanding capital stock. The loan to Diplomat earned interest at the prime rate plus 2% and was repaid in May 1996. In connection with the above transaction, Mr. Rubin personally made a secured loan to Diplomat in the aggregate principal amount of $2,353,100 which matures in February 1999, and committed to make available a stand-by loan of up to $300,000 aggregate principal. In consideration for making his loan to Diplomat and committing to make this stand-by commitment, Mr. Rubin received shares of Diplomat convertible preferred stock. Pursuant to an Agreement, dated May 30, 1996 (the "ERD Agreement") between the Company and ERD Waste Corp. ("ERD"), the Company agreed to provide certain financial accommodation to ERD by making available a $4.4 million standby letter of credit expiring May 31, 1998 issued by Citibank, N.A. in favor of Chemical Bank (the "Letter of Credit") on behalf of ERD. Chemical Bank is the principal lender to ERD and its subsidiaries, and upon F-35 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 14. RELATED PARTIES issuance of the Letter of Chase Bank (formerly Chemical Bank) made available $4.4 million of additional funding to ERD under ERD's existing lending facility. The funding was used to refinance certain outstanding indebtedness of Environmental Services of America, Inc. ("ENSA"), a wholly owned subsidiary of ERD. Robert M. Rubin, the Chairman and Chief Executive Officer, and a principal stockholder of the Company is also the Chairman, Chief Executive Officer, a director and a principal stockholder of ERD, owning approximately 23.0% of the outstanding ERD Common Stock. In consideration for making the Letter of Credit available, in addition to repayment by ERD of all amounts drawn under the Letter of Credit and the grant of a security interest in certain machinery and equipment of ENSA to secure such repayment, ERD agreed (i) to pay to the Company all of the Company's fees, costs and expenses in connection with making the Letter of Credit available, as well as the amount of all interest paid by the Company on drawings under the Letter of Credit prior to their repayment by ERD. In September 1996, a subsidiary of ERD which operated a waste facility in Nassau County, New York was cited by the New York State Department of Environmental Conservation ("DEC") for violating certain DEC regulations. Such waste facility had accounted for approximately 13% of ERD's consolidated revenues. The Company has been advised by ERD that under the terms of a Settlement Agreement reached with the State of New York in November 1996, all violations alleged by the DEC have been resolved in consideration for, among other things, ERD's agreement to voluntarily cease incineration operations at the waste facility on or before March 31, 1997. Such incineration operations ceased on April 15, 1997. On November 8, 1996, the Company and ERD amended and restated their agreements to provide that if and to the extent that the Letter of Credit provided by the Company is called for payment, ERD will issue to the Company its convertible note bearing interest at 12% per annum, payable monthly, and payable as to principal on the earliest to occur of: (i) May 30, 1999, (ii) ERD's receipt of the initial proceeds from any public or private placement of debt or equity securities of ERD, or (iii) completion of any bank refinancing by ERD, to the extent of all proceeds available after payment of other secured indebtedness. In addition, the ERD notes, if issued, will be convertible, at any time at the option of the Company, into ERD Common Stock at a conversion price equal to $4.40 per share, or a maximum of 1,000,000 ERD shares if the entire $4.4 million note is issued and converted into ERD Common Stock. In addition to the collateral provided under the May 30, 1996 agreement, ERD also provided the Company with a junior mortgage on the waste facility owned by ERD's subsidiary, subordinated to existing indebtedness encumbering such facility. F-36 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 14. RELATED PARTIES (CONTINUED) Under the terms of an indemnity agreement, dated May 30, 1996, Robert M. Rubin agreed to indemnify the Company for all losses, if any, incurred by the Company as a result of issuance of the Letter of Credit for the benefit of ERD. In consideration of his negotiating the modification of the ERD agreement, on November 8, 1996, the Company's Board of Directors (Mr. Rubin abstaining) agreed to amend the indemnity agreement with Mr. Rubin to limit his contingent liability thereunder to the extent of 23% (Mr. Rubin's approximate percentage beneficial ownership in the outstanding Company Common Stock as of May 30, 1996) of all losses that the Company may incur in connection with its having provided the Letter of Credit financial accommodation on behalf of ERD. Mr. Rubin's reimbursement obligations are also subject to pro rata reduction to the extent of any repayments made directly by ERD or from proceeds received by the Company from the sale of ERD capital stock described above. In February of 1997, the Company loaned $500,000 to ERD Waste Corp. The loan is secured by a short term note bearing interest at 2% above the prime lending rate of the Company's commercial bank (8.5% at April 30, 1997) and a second collateral and security position on all accounts receivable of ERD subject to the primary collateral position held by Chase Bank. Principal together with accrued interest is due October 5, 1997. In September 1997 ERD filed for protection from creditors under Chapter 11 of federal bankruptcy laws. In October, 1997 Chemical bank drew the $4.4 million available on the standby letter of credit. As a result, the Company recorded a loss of approximately $5.0 million in fiscal 1997, related to the February Note and the September letter of credit. Mr. Rubin has personally guaranteed approximately $1.7 million of the ERD loss. On June 28, 1996 the Company entered into a credit agreement with Mr. Rubin pursuant to which Mr. Rubin delivered a demand promissory note for up to $1,200,000 and payment in full was due July 31, 1998. Mr. Rubin's indebtedness was secured by his pledge of 150,000 shares of company common stock and his collateral assignment of all payments to him under the terms of his consulting and non-competition agreements with Hutchinson, in the aggregate amount of $1,200,000. Such collateral assignment was converted to a payment rights assignment agreement in July 1998 calling for Hutchinson to make all payments pursuant to Mr. Rubin's consulting and non-competition agreement directly to the company in satisfaction of the $1,200,000 loan. Mr. Rubin has guaranteed all payments under the assignment and such assignment is subject to approval by the Company's stockholders at the next annual or special meeting. In addition, the Company agreed to waive interest on the note from February 23, 1998 forward. F-37 AMERICAN UNITED GLOBAL, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS 15.EMPLOYEE SAVINGS PLAN The Company has a voluntary savings plan pursuant to Section 401(k) of the Internal Revenue Code, whereby eligible participants may contribute a percentage of compensation subject to certain limitations. The Company has the option to make discretionary qualified contributions to the plan, however, no Company contributions were made for fiscal 1998, 1997 or 1996. 16. SUBSEQUENT EVENTS On October 2, 1998 Mr. Rubin advanced $250,000 to IDF and on November 9, 1998 the Company advanced $150,000 to IDF. These amounts were for working capital and represent a portion of a total commitment of up to $1,000,000 to be funded $300,000 by Mr. Rubin; $300,000 by two other directors of IDF and $400,000 by the Company. It is anticipated that the funding will be structured as a purchase of equity at a price of approximately .625 per common share. F-38 SCHEDULE II AMERICAN UNITED GLOBAL, INC. VALUATION AND QUALIFYING ACCOUNTS For the Fiscal Years Ended July 31, 1998, 1997, and 1996
Charged to Balance at Charged to Other Balance at Description Beginning Costs and Accounts End of of Period Expenses Deductions Period - ----------------------------------------- -------------- ---------------- ------------ --------------- --------------- Accounts Receivable Reserve: Fiscal year ended July 31, 1998 $807,000 $825,000 $ --- $(906,000) $726,000 Fiscal year ended July 31, 1997 652,000 875,000 285,000 (1,005,000) 807,000 Fiscal year ended July 31, 1996 370,000 486,000 --- (204,000) 652,000 Inventory Reserve: Fiscal year ended July 31, 1998 1,597,000 1,734,000 --- (498,000) 2,833,000 Fiscal year ended July 31, 1997 1,212,000 598,000 --- (213,000) 1,597,000 Fiscal year ended July 31, 1996 449,000 768,000 --- (5,000) 1,212,000
EXHIBIT LIST ------------ 3.1 Certificate of Incorporation of Registrant.(8) 3.2 By-laws of Registrant. (9) 4.1 Specimen Certificate of Common Stock. (10) 4.2 1991 Employee Stock Option Plan. (8) 4.3 1996 Stock Option Plan, as amended. 10.1 Agreement of Purchase and Sale, dated December 4, 1992, by and between Case and Western Power (Schedule omitted). (1) 10.2 Employment Agreement, by and between Western Power and C. Dean McLain. (14) 10.3 Financing Agreement with Associates Commercial Corporation and Western Power. (3) 10.4 Asset Purchase Agreement, dated as of September 22, 1994, by and between Case and Western Power (schedule omitted). (4) 10.5 Management Agreement between Western Power and American United Global, Inc. (6) 10.6 Revised Financing Agreement with Seattle-First National Bank and Western Power. (14) 10.7 Auburn Facility Real Estate Purchase and Sale Agreement, dated October 19, 1995, by and between Western Power and Ford Kiene. (14) 10.8 Western Power Lease Agreement--Sacramento, California. (7) 10.9 Sacramento Acquisition Agreement with Western Power a. Asset Purchase Agreement (7) b. Used Equipment Note (7) c. Parts Note (7) d. Accounts Receivable Note (7) e. Goodwill Note (7) f. Real Estate Note from MRR to Case (7) g. Deed to Secure Debt of MRR to Case (7) h. Security Agreement (7) i. C. Dean McLain's Personal Guaranty (7) 10.10 GCS Acquisition Agreement with Western Power. (14) 10.11 Amended and Restated Employment Agreement with Robert M. Rubin. (11) 10.12 Asset Purchase Agreement, dated as of November 22, 1995, by and among Hutchinson Corporation, American United Global, Inc. ("AUGI"), AUG California, Inc. ("AUG-Ca"), American United Products, Inc. ("AUP"), and American United Seal, Inc. ("AUS") (Schedules and Exhibits omitted). (12) 10.13 Non-Competition Agreement, dated Janaury 19, 1996, among Hutchinson Seal Corporation, AUGI, AUG-Ca, AUP and AUS. (12) 10.14 Non-Competition Agreement, dated January 19, 1996, between Hutchinson Seal Corporation and Robert M. Rubin. (12) 10.15 Agreement of Hutchinson Corporation to guaranty payments under Non-Competition and Consulting Agreements. (12) 10.16 Consulting Agreement, dated January 19, 1996, between Hutchinson Seal Corporation and Robert M. Rubin. (12) 10.17 $2,625,000 Purchase Note from N O-Ring Corporation to AUGI. (12) 10.18 $1,050,000 Purchase Note from Stillman Seal Corporation to AUGI. (12) 10.19 Guaranty of Hutchinson Corporation of the Purchase Notes, aggregating $3,675,000 of National O-Ring Corporation and Stillman Seal Corporation. (12) 10.20 January 19, 1996, amendment to certain provisions of Asset Purchase Agreement. (12) 10.21 Agreement and Plan of Merger, dated June 28, 1996, by and among AUGI, ConnectSoft, Inc., and certain shareholders of ConnectSoft, Inc. (without exhibits). (13) 10.24 Agreement of Plan and Merger, by and among American United Global, Inc. ("AUGI"), BTS Acquisition Corp., Broadcast Tower Sites, Inc., Simantov Moskona and Sergio Luciani, dated December 11, 1996 (Incorporated by reference from the Company's Form 8-K filed December 24, 1996). 10.25 Agreement of Plan of Merger, dated July 31, 1997, between American United Global, Inc., IDF International, Inc. and TechStar Communications, Inc. (without exhibits) (15)
10.26 Asset Purchase Agreement, dated January 17, 1997, among Sahlberg Equipment, Inc., John Sahlberg and Robert Sahlberg, R&J Partners and Western Power & Equipment Corp. (Incorporated by reference from Western Power and Equipment Corp.'s Form 8-K filed February 3, 1997 (File No. 0-26230)). 10.27 Loan Agreement dated, June 5, 1997, between Deutsche Financial Services, Inc. and Western Power and Equipment Corp. (Incorporated by reference from Western Power and Equipment Corp.'s Form 10-Q filed June 11, 1997 (File No. 0-26230)). 10.28 Commercial Lease, dated June 1, 1997 between McLain-Rubin Realty Company II, LLC and Western Power and Equipment Corp. for Kent, Washington facility (Incorporated by reference from Western Power and Equipment Corp.'s Form 10-K filed October 29, 1997 (File No. 0-26230)). 10.29 Asset Purchase Agreement between eGlobe, Inc. (fka Executive Telecard Ltd.) and American United Global, Inc., et al, dated on July 10, 1998.* 10.30 Commercial Lease dated June 1, 1997, between McLain-Rubin Realty Company II, LLC and Western Power & Equipment Corp. for Kent, Washington Facility. (16) 10.31 Asset Purchase Agreement, dated December 11, 1997, between Case Corporation and Western Power & Equipment Corp. and McLain-Rubin Realty Company III, LLC.(16) 10.32 Employment Agreement, by and between Western Power & Equipment Corp. and C. Dean McLain dated January 1, 1998.(16) 10.33 Consulting Agreement, by and between Western Power & Equipment Corp. and Robert M. Rubin.(16) 22. Subsidiaries of the Company. 27. Financial Data Schedule.
- --------------- (1) Filed as an Exhibit to the Current Report on Form 8-K of American United Global, Inc. ("AUGI"), as filed on December 19, 1992 and incorporated herein by reference thereto. (2) Filed as an Exhibit to the AUGI Annual Report on Form 10-K, as filed on October 29, 1993 and incorporated herein by reference thereto. (3) Filed as an Exhibit to Amendment No. 1 to AUGI's Registration Statmeent on Form S-1, filed on February 1, 1994 and incorporated herein by reference thereto. (Registration No. 33-72556). (4) Filed as an Exhibit tot he Current Report on Form 8-K of AUGI, as filed on September 23, 1994 and incorporated herein by reference thereto. (5) Filed as an Exhibit to Amendment No. 1 to the Western Power & Equipment Corp. ("Western Power") Registration Statement on Form S-1, filed on May 16, 1995 and incorporated herein by reference thereto. (Registration No. 33-89762). (6) Filed as an Exhibit to the Western Power Registration Statement on Form S-1, filed on February 24, 1995 (Registration No. 33-89762). (7) Filed as an Exhibit to the Current Report on Form 8-K of Western Power as filed on March 6, 1996 and incorporated herein by reference thereto. (8) Included with the filing of AUGI's Registration Statement on Form S-1 on October 18, 1991, as amended by Amendment No. 1, dated December 18, 1991, Amendment No. 2, dated January 9, 1990, Amendment No. 3, dated January 24, 1992 and Amendment No. 4, dated January 28, 1992. (9) Filed as an Exhibit to the definitive Proxy Materials of Alrom Corp., a New York corporation, as filed on December 10, 1991. (10) Filed as an Exhibit to AUGI's Registration Statement on Form S-18 (Registration No. 3303330 81-NY) and incorporated herein by reference thereto. (11) Filed as on Exhibit to AUGI's Preliminary Proxy Materials filed 1996 Annual Meeting on June 27, 1996. (12) Filed as an Exhibit to AUGI's Current Report on Form 8-K, dated February 2, 1996. (13) Filed as an Exhibit to AUGI's Current Report on Form 8-K, dated July 24, 1996. (17) Filed as an Exhibit to Western Power Report on Form 10-K for fiscal year ended July 31, 1996. (18) Filed as an Exhibit to AUGI's Annual Report on Form 10-K for fiscal year ended July 31, 1997. (19) Filed as an Exhibit to Western Power Report on Form 10-K for fiscal year ended July 31, 1998. * Filed herewith EX-10.29 2 EXHIBIT 10.29 Exhibit 10.29 ASSET PURCHASE AGREEMENT ASSET PURCHASE AGREEMENT (this "Agreement"), entered into this 10th day of July, 1998, by and among AMERICAN UNITED GLOBAL, INC., a Delaware corporation ("AUGI"), CONNECTSOFT COMMUNICATIONS CORPORATION, a Delaware corporation ("CCC"), CONNECTSOFT HOLDING CORP., a Washington corporation ("Connectsoft") and EXECUTIVE TELECARD, LTD., a Delaware corporation ("EXTEL") and C-SOFT ACQUISITION CORP., a Delaware corporation, and a wholly-owned subsidiary of EXTEL (the "Buyer). W I T N E S S E T H : WHEREAS, CCC is engaged in the business of developing a unified, intelligent communications system which it markets under the name FreeAgent-TM- (the "FreeAgent Technology"); and WHEREAS, Connectsoft owns and (through an affiliate, InterGlobe Networks, Inc. ("InterGlobe")) operates a central telecommunications network center (the "CNOC") located in Seattle, Washington and the hardware networking equipment, computers and software associated therewith (the "CNOC Business"); and WHEREAS, the Buyer is interested in acquiring substantially all of the assets and business associated with the FreeAgent Technology and the CNOC Business (collectively, referred to herein as the "Businesses"); and WHEREAS, each of CCC and Connectsoft (hereinafter individually and collectively referred to as the "Seller") has agreed to sell (a) all or substantially all of the tangible and intangible assets of CCC, including without limitation, all software, engineering, developments and technology associated with the FreeAgent Technology, and (b) the hardware networking equipment, computers and software relating to the CNOC Business (collectively, the "Assets"), and the Businesses, to the Buyer, and the Buyer has agreed to purchase such Assets and the Businesses, all upon the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein set forth, the sufficiency of which is hereby acknowledged, the parties hereby covenant and agree as follows: 1. ASSETS. 1.1 Acquired Assets. Subject to the terms and conditions of this Agreement, on the Closing Date (as such term is hereinafter defined), the Seller shall sell, transfer and deliver to the Buyer, and the Buyer shall purchase and receive from the Seller, the Assets, including, but not limited to, the following: (a) All items of tangible fixed assets, furniture, fixtures, machinery, equipment, computers, computer systems and vehicles of CCC and Connectsoft which are used in the operation of the Businesses, and which are set forth on Schedule 1.1(a) hereto (collectively, the "Fixed Assets"), all of which are presently held by CCC other than the CNOC, which is presently held by Connectsoft; (b) All inventory and supplies of the Seller; (c) All trade names, trademarks, patents, copyrights, customer lists, supplier lists, trade secrets, computer software programs, engineering, technical information, and other such knowledge and information constituting the "know-how" of the Seller; (d) The goodwill of the Businesses and their value as going concerns; (e) To the extent assignable, all licenses and permits of the Seller; (f) All books, records, printouts, drawings, data, files, notes, notebooks, accounts, invoices, correspondence and memoranda of the Seller; and (g) All other rights and assets of any kind, tangible or intangible, of the Seller (including the Material Contracts listed on Schedule 5.8 hereto, which Buyer specifically assumes the obligations thereunder) whether or not reflected in their internal financial statements or on their books and records. On the Closing Date, the Seller shall execute and deliver to the Buyer a bill of sale in respect of the Assets, all in the form of Exhibit A annexed hereto and made a part hereof. 1.2 Excluded Assets. Notwithstanding anything in this Agreement to the contrary, the Assets shall not include, and the Seller shall retain (a) all cash, marketable securities, accounts receivable and notes receivable of the Seller, (b) those specific assets of the Seller relating to the Businesses which are identified on Schedule 1.2 to this Agreement, (c) all bank accounts of the Seller, (d) all rights to any tax refunds of the Seller, (e) the Seller's stock record books, minute books, and tax returns, (f) all of the Seller=s rights under this Agreement, and (g) those miscellaneous other assets or properties of each of CCC and Connectsoft which are not related to either the FreeAgent Technology or the CNOC Business and which are identified on Schedule 1.2 (collectively, the "Excluded Assets"). 2. LIABILITIES. 2.1 Assumed Liabilities. Subject to the terms and conditions of this Agreement, on the Closing Date, the Seller shall assign to the Buyer, and the Buyer shall assume and agree to pay and perform when due, only the specific liabilities, obligations and indebtedness, including without limitation trade payables and obligations under capitalized leases of CCC relating to the Assets, which are listed on Schedule 2.1 to this Agreement, as same are constituted on the Closing Date (collectively, the "Assumed Liabilities") and the Material Contracts listed on Schedule 5.8. On the Closing Date, the Buyer shall execute and deliver to the Seller an assumption agreement in respect of the Assumed Liabilities and the Material Contracts, all in the form of Exhibit B annexed hereto. 2.2 Limitation on Amount and Timing of Payment of Assumed Liabilities. (a) Notwithstanding the provisions of Section 2.1 above or any other provision of this Agreement it is expressly understood and agreed by and among the parties hereto that (i) the Buyer shall not assume more than $4,500,000 in the aggregate principal amount of Assumed Liabilities, and (ii) the Buyer shall not be required to pay more than $500,000 in the aggregate principal amount of Assumed Liabilities on or before April 30, 1999. (b) In the event the Buyer is required to pay more than $500,000 in the aggregate principal amount of Assumed Liabilities on or before April 30, 1999, then Buyer, as its sole remedy for any breach under Section 2.2(a)(ii), shall have the right to borrow from AUGI the positive difference of (i) the amount the Buyer is required to pay of the Assumed Liabilities on or before April 30, 1999, less (ii) $500,000. The obligation of AUGI to loan such funds to Buyer shall be conditioned upon a certificate of the Buyer's Chief Financial Officer representing the amount the Buyer is required to pay in cash of the Assumed Liabilities on or before April 30, 1999. The loan shall be evidenced by a promissory note in the form attached hereto as Exhibit C. Buyer shall have no remedy for a breach of Section 2.2(a)(ii) if Buyer waives extension of the UPS Note as a condition to Closing under Section 10.1(i) herein. 2.3 Excluded Liabilities. Except for the Assumed Liabilities and the Material Contracts, the Buyer shall not assume, and shall have no liability for, any debts, liabilities, executory obligations, claims or expenses of the Seller of any kind, character or description, whether accrued, absolute, contingent or otherwise, including, without limitation, any liabilities relating to the Seller's conduct of the Businesses prior to the Closing Date (the "Excluded Liabilities"). The Seller shall be solely liable and responsible to make timely payment when due of all such Excluded Liabilities. 3. CONSIDERATION. 3.1 Consideration to the Seller. The entire purchase price for the Assets (the "Consideration") shall consist of (i) the assumption by the Buyer of the Assumed Liabilities, and the Buyer's payment and performance, when due, of all such Assumed Liabilities, subject only to the provisions of Section 2.2 of this Agreement, and (ii) the rights granted under the Letter Agreement to be delivered at the Closing in the form annexed hereto as Exhibit E. 3.2 Allocation of Purchase Price. The fair market values of the Assets and the allocation of the Purchase Price among the Assets for purposes of Section 1060 of the Internal Revenue Code shall be as agreed between Buyer and Seller on or before the Closing Date and included as Schedule 3.2 and Buyer and Seller agree to be bound by such fair market value determination and allocation and to complete and attach Internal Revenue Service Form 8594 to their respective tax returns accordingly. If Buyer and Seller can not agree on the allocation, the Purchase Price shall be allocated among the Assets by Seller's outside accountants which determination shall be final. 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND AUGI. In connection with the sale of the Assets to the Buyer and in order to induce the Buyer to enter into this Agreement, each of CCC, Connectsoft and AUGI hereby jointly and severally represents and warrants to the Buyer, as of the date of this Agreement (unless otherwise indicated), as follows: 4.1 Organization, Good Standing and Qualification. CCC is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, Connectsoft is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington, and AUGI is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, each with full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and to own its assets and conduct its business as owned and conducted on the date hereof. The Seller is duly qualified to operate its respective businesses as a foreign corporation under the laws of each jurisdiction where the nature of its businesses or the location of its properties makes such qualification necessary and the failure to be so qualified would have a material adverse effect on the subject Seller or its assets, properties, businesses or financial condition (a "Material Adverse Effect"). 4.2 Authorization of Agreement. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Seller and AUGI have been duly and validly authorized by the Board of Directors of the Seller, and by AUGI (as the sole stockholder of each of CCC and Connectsoft). No further corporate authorization is required on the part of each Seller or AUGI to consummate the transactions contemplated hereby. 4.3 Valid and Binding Agreements. This Agreement, and, when executed, all other agreements, instruments of transfer or assignment, documents and other instruments delivered, constitute and will constitute the legal, valid and binding obligation of the Seller and AUGI (to the extent a party thereto), enforceable against the Seller and AUGI in accordance with their respective terms, except to the extent limited by bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, and except that the remedy of specific performance or similar equitable relief is available only at the discretion of the court before which enforcement is sought. 4.4 Disclosure and Duty of Inquiry. No representation or warranty by the Seller or AUGI in this Agreement and no statement or information contained in the schedules hereto or any certificate furnished or to be furnished to the Buyer hereunder contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading. The Buyer is not nor will it be required to undertake any independent investigation to determine the truth, accuracy and completeness of the representations and warranties made by the Seller and AUGI pursuant to this Article 4. 5. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF AUGI AND THE SELLER. In connection with the sale of the Assets to the Buyer and in order to induce the Buyer to enter into this Agreement, each of CCC, Connectsoft and AUGI hereby jointly and severally represents and warrants to the Buyer, as of the date of this Agreement (unless otherwise indicated), as follows: 5.1 No Breach of Statute or Contract. Neither the execution and delivery of this Agreement by the Seller, nor compliance with the terms and provisions of this Agreement, will: (a) violate any statute or regulation of any governmental authority, domestic or foreign, affecting the Seller, (b) except as set forth in Schedule 5.1 to this Agreement, require the issuance of any authorization, license, consent or approval of any federal or state governmental agency or any other person; or (c) except as set forth in Schedule 5.1 to this Agreement, conflict with or result in a breach of any of the terms, conditions or provisions of the certificate of incorporation or by-laws of the Seller or any judgment, order, injunction, decree, agreement or instrument to which the Seller is a party, or by which the Seller is bound, or constitute a default thereunder. 5.2 Title to and Condition of Purchased Assets. The Seller owns, or leases the Assets listed on Schedule 1.1(a) as being leased, and as of the Closing Date will have good and marketable title in and to, or a valid leasehold interest in, all of the Assets, free and clear of all liens, liabilities, charges, claims, options, restrictions on transfer or other encumbrances of any nature whatsoever, except for (a) liens or encumbrances disclosed in Section 5.2 to this Agreement; and (b) miscellaneous materialmen's or mechanics liens or liens for current taxes not yet due and payable or which are being contested in good faith by appropriate proceedings and which are listed on Schedule 5.2 (collectively, "Permitted Liens"). All material items of machinery, equipment, vehicles, and other personal property owned or leased by the Seller are listed in Schedule 5.2 to this Agreement and, except as and to the extent disclosed in Schedule 5.2 to the Agreement, all such personal property is included in the Assets and is in good operating condition and repair (reasonable wear and tear excepted) and is adequate for its use in the Seller's Businesses as presently conducted. The Assets constitute all of the assets and properties which are required for the Seller's Businesses as presently conducted and as proposed to be conducted by the Seller as of the date hereof. 5.3 Ownership of Businesses. No portion of the Businesses is owned or operated by any person or entity other than the Seller, except that InterGlobe operates the CNOC. 5.4 Form SB-2 Information; Financial Statements. CCC has furnished to EXTEL a copy of the Form SB-2 Registration Statement of CCC, as filed with the Securities and Exchange Commission ("SEC") on September 4, 1997 (the "Registration Statement"), which Registration Statement has not, as yet, been declared effective by the SEC. On or before the closing of the transactions contemplated by this Agreement, such Registration Statement shall be withdrawn. Annexed hereto as Schedule 5.4 is an unaudited balance sheet of CCC as at April 30, 1998 and the unaudited statement of income (loss) of CCC for the nine months ended April 30, 1998 (collectively, the "April 1998 Financial Statements"). The April 1998 Financial Statements were prepared by management of CCC, fairly set forth the assets and liabilities and financial conclusion of CCC and its results of operations as at April 30, 1998 and for the fiscal period then ended, and were prepared in accordance with generally accepted accounting principles, consistent with those of prior periods, subject only to the absence of financial statement footnotes (which would not differ materially from those of the most recent audited financial statements) and year end audit adjustments (which would not be material). The financial statements included in the Registration Statement (a copy of which has been provided to the Buyer) present fairly, in all material respects, the financial condition of CCC as of July 31, 1997 and the results of operations and cash flows for the respective periods then ended and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved. The financial statements referred to in this Section 5.4 do not reflect the operations of any business or any portion of Seller's Businesses not included in the Assets. Except as expressly set forth in the April 1998 Financial Statements and those financial statements included in the Registration Statement, as disclosed pursuant to this Agreement, or non-material liabilities arising in the normal course of the Seller's Businesses since April 30, 1998, except for the Assumed Liabilities, there are no liabilities or obligations (including, without limitation, any tax liabilities or accruals) of the Seller, including any contingent liabilities, that are, in the aggregate, material to the Seller. 5.5 No Material Changes. Except as otherwise described in Schedule 5.5 to this Agreement, since July 31, 1997, there has been no material adverse change in the financial condition, operations, or Businesses of the Seller, or any damage, destruction, or loss (whether or not covered by insurance) of the Assets materially and adversely affecting the financial condition, operations, or Businesses of the Seller, provided, that the offering of the Businesses and the Assets for sale, the preparation for such sale pursuant to the terms and conditions of this Agreement, and the public disclosure of the same shall not constitute such a material adverse change. 5.6 Insurance Policies. Schedule 5.6 to this Agreement contains a true and correct schedule of all insurance coverages held by the Seller concerning the Businesses and the Seller's assets and properties. To the Seller's knowledge, the Seller is not in violation of any requirements of any its insurance carriers, and the Seller has received no written notice of any default or violation under or in respect of any of the foregoing. 5.7 Permits and Licenses. Except as set forth in Schedule 5.7, the Seller possesses (and there are included in the Assets being transferred to the Buyer) all required permits, licenses and/or franchises, from whatever governmental authorities or agencies (domestic and/or foreign) requiring the same and having jurisdiction over the Seller, necessary in order to operate the Businesses in the manner presently conducted, all of which permits, licenses and/or franchises are valid, current and in full force and effect, except where the failure to have or maintain any such permit, license and/or franchise would not have or could not reasonably be expected to have a material adverse effect on the Assets or the Businesses. The Seller has heretofore conducted the Businesses in compliance in all material respects with the requirements of such permits, licenses and/or franchises, and the Seller has not received written notice of any default or violation in respect of or under any of such permits, licenses and/or franchises, except where such default would not have or could not reasonably be expected to have a Material Adverse Effect on the Assets or the Businesses. 5.8 Contracts and Commitments. (a) Schedule 5.8 to this Agreement lists all material contracts, leases, commitments, technology agreements, software development agreements, software licenses, indentures and other agreements to which the Seller is a party (collectively, "Material Contracts"), all of which are included in the Assets except as indicated in Schedule 5.8 except that Schedule 5.8 need not list any such agreement that is listed on any other schedule hereto, or was entered into in the ordinary course of the Businesses of the Seller and that, in any case: (i) is for the purchase of supplies or other inventory items in the ordinary course of the Businesses; (ii) is related to the purchase or lease of any capital asset involving aggregate payments of less than $25,000 per annum; or (iii) may be terminated without penalty, premium or liability by the Seller on not more than thirty (30) days' prior written notice; provided however, that Schedule 5.8 shall list all technology agreements, software development agreements and software licenses involving the Seller and all Assumed Liabilities, regardless of the duration thereof or the amount of payments called for or required thereunder, other than standard software licenses of software products available to the Businesses' customers generally. (b) Except as set forth in Schedule 5.8 to this Agreement, all Material Contracts are in full force and effect, and the Seller is in compliance in all material respects with all of the Material Contracts and with all Assumed Liabilities, and has not received any written notice that any party to any Material Contract is in material breach or default of such Material Contract or is now subject to any condition or event which has occurred and which, after notice or lapse of time or both, would constitute a material default by any party under any such Material Contract. Except as set forth in Schedule 5.8 to this Agreement, none of the Material Contracts will be voided, revoked or terminated, or voidable, revocable or terminable, upon and by reason of the assignment thereof to the Buyer pursuant to this Agreement. The Seller has delivered true and correct copies of all Material Contracts to the Buyer. (c) To the best of each Seller's knowledge, no purchase commitment by the Seller relating to the Businesses is materially in excess of the normal, ordinary and usual requirements of the Businesses. (d) Except as set forth in Schedule 5.8 to this Agreement, the Seller does not have any outstanding contracts with or commitments to officers, employees, technicians, agents, consultants or advisors relating to the Businesses that are not cancelable by the Seller without penalty, premium or liability (for severance or otherwise) on less than thirty (30) days' prior written notice. 5.9 Customers and Suppliers. Except as set forth in Schedule 5.9 to this Agreement, the Seller has not received any written notice of any claim by or dispute with, or any existing, announced or anticipated changes in the policies of, any material clients, customers, referral sources or suppliers of the Seller which would have a Material Adverse Effect on the Businesses as presently conducted. 5.10 Labor, Benefit and Employment Agreements. (a) Except as set forth in Schedule 5.10 to this Agreement, the Seller is not a party to and does not have any commitment or obligation in respect of (i) any collective bargaining agreement or other labor agreement relating to any employees of the Seller, or (ii) any agreement with respect to the employment or compensation of any non-hourly and/or non-union employee(s) of the Businesses. Schedule 5.10 sets forth the amount of all compensation or remuneration (including any discretionary bonuses) paid by the Seller during the 1997 calendar year to employees or consultants of the Seller who presently receive aggregate compensation or remuneration at an annual rate in excess of $35,000. (b) No union is now certified or, to the best of the Seller's knowledge, claims to be certified, as a collective bargaining agent to represent any employees of the Seller, and there are no labor disputes existing or, to the best of the Seller's knowledge, threatened, involving strikes, slowdowns, work stoppages, job actions or lockouts of any employees of the Seller. (c) With respect to any "multiemployer plan" (as defined in Section 3(37) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) to which the Seller or any of its past or present affiliates has at any time been required to make contributions, neither the Seller nor any of its past or present affiliates has, at any time on or after April 29, 1980, suffered or caused any "complete withdrawal" or "partial withdrawal" (as such terms are respectively defined in Sections 4203 and 4205 of ERISA) therefrom on its part. (d) Except as disclosed in Schedule 5.10, the Seller does not maintain, or have any liabilities or Assumed Liabilities of any kind with respect to, any bonus, deferred compensation, pension, profit sharing, retirement or other such benefit plan, and does not have any potential or contingent liability in respect of any actions or transactions relating to any such plan other than to make contributions thereto if, as and when due in respect of periods subsequent to the date hereof. Without limitation of the foregoing, (i) the Seller has made all required contributions to or in respect of any and all such benefit plans, (ii) no "accumulated funding deficiency" (as defined in Section 412 of the Internal Revenue Code of 1986, as amended (the "Code")) has been incurred in respect of any of such benefit plans, and the present value of all vested accrued benefits thereunder does not, on the date hereof, exceed the assets of any such plan allocable to the vested accrued benefits thereunder, (iii) there has been no "prohibited transaction" (as defined in Section 4975 of the Code) with respect to any such plan, and no transaction which could give rise to any tax or penalty under Section 4975 of the Code or Section 502 of ERISA, and (iv) there has been no "reportable event" (within the meaning of Section 4043(b) of ERISA) with respect to any such plan. All of such plans which constitute, are intended to constitute, or have been treated by the Seller as "employee pension benefit plans" or other plans within Section 3 of ERISA have been determined by the Internal Revenue Service to be "qualified" under Section 401(a) of the Code, and have been administered and are in compliance with ERISA and the Code; and the Seller does not have any knowledge of any state of facts, conditions or occurrences such as would impair the "qualified" status of any of such plans. All of the matters listed on Schedule 5.10 shall constitute Excluded Liabilities. (e) Except for the group insurance programs listed in Schedule 5.10, the Seller does not maintain any medical, health, life or other employee benefit insurance programs or any welfare plans (within the meaning of Section 3(1) of ERISA) for the benefit of any current or former employees, and, except as required by law, the Seller does not have any liability, fixed or contingent, for health or medical benefits to any former employee. 5.11 Accounts Payable. Except as set forth in Schedule 5.11, the Seller is current in its payment of all accounts payable relating to the Businesses, and has received no notice, not subsequently withdrawn or cured, from any vendor, supplier or other person with respect to non-payment or late payment of any accounts payable of the Businesses, or any threatened suspension or termination of the provision of goods or services to the Businesses, which suspension or termination would have a Material Adverse Effect on the financial condition, operations, or Businesses of the Seller. 5.12 Compliance with Laws. (a) To the Seller's knowledge, the Seller is in compliance in all material respects with all laws, statutes, regulations, rules and ordinances applicable to the conduct of its Businesses as presently constituted; and the Seller has received no written notice of any default or violation under or in respect of any of the foregoing. (b) Without limitation of Section 5.12(a) above, except as set forth on Schedule 5.12 to this Agreement, to the best of the Seller's knowledge the Seller has not, at any time during the three (3) year period prior to the date hereof, (i) handled, stored, generated, processed or disposed of any hazardous substances in violation of any federal, state or local environmental laws or regulations, or (ii) otherwise committed any material violation of any federal, state or local environmental laws or regulations (including, without limitation, the provisions of the Environmental Protection Act, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, and other applicable environmental statutes and regulations) or any material violation of the Occupational Safety and Health Act. (c) Except as set forth in Schedule 5.12 to this Agreement, neither the Seller nor, to the best of the Seller's knowledge, any of the Seller's directors or officers has received any written notice of default or violation, nor, to the best of the Seller's knowledge, is the Seller or any of its directors or officers in default or violation, with respect to any judgment, order, writ, injunction, decree, demand or assessment issued by any court or any federal, state, local, municipal or other governmental agency, board, commission, bureau, instrumentality or department, domestic or foreign, relating to any aspect of the Seller's Businesses, affairs, properties or assets. Neither the Seller nor, to the best of the Seller's knowledge, any of its directors or officers, has received written notice of, been charged with, or is under investigation with respect to, any violation of any provision of any federal, state, local, municipal or other law or administrative rule or regulation, domestic or foreign, relating to any aspect of the Seller's Businesses, affairs, properties or assets, which violation would have a Material Adverse Effect on the financial condition, operations, or Businesses of the Seller or upon any material portion of the Assets. (d) Schedule 5.12 sets forth the date(s) of the last known audits or inspections (if any) of the Seller conducted by or on behalf of the Environmental Protection Agency, the Occupational Safety and Health Administration, the federal Department of Health and Human Services and/or any agency thereof (including, without limitation, the Health Care Financing Administration) or intermediary acting on its behalf, any corresponding or comparable state or local governmental department, agency or authority, and any other governmental and/or quasi-governmental agency (federal, state and/or local). 5.13 Litigation. Except as disclosed in Schedule 5.13 to this Agreement, there is no suit, action, arbitration, or legal, administrative or other proceeding, or governmental investigation (including, without limitation, any claim alleging the invalidity, infringement or interference of any patent, patent application, or rights thereunder owned or licensed by the Seller) pending, or to the best knowledge of the Seller, threatened, by or against the Seller that relates in any material way to the Businesses or any of the Assets. All of the matters listed on Schedule 5.13 shall constitute Excluded Liabilities. The Seller is not aware of any state of facts, events, conditions or occurrences which might properly constitute grounds for or the basis of any suit, action, arbitration, proceeding or investigation against or with respect to the Seller or that relate in any material way to the Businesses or any of the Assets, which, if adversely determined, would have a Material Adverse Effect on the financial condition, operations, or Businesses of the Seller or upon any material portion of the Assets. 5.14 Intellectual Property. (a) Schedule 5.14 to this Agreement sets forth a list and brief description of the nature and ownership of: (i) all patents, patent applications, copyright registrations and applications, registered trade names, and trademark registrations and applications, both domestic and foreign, which are presently owned, filed or held by the Seller and/or any of its directors, officers, stockholders or employees and which in any material way relate to or are used in the Businesses; (ii) all licenses, both domestic and foreign, which are owned or controlled by the Seller and/or any of its directors, officers, stockholders, or employees and which in any material way relate to or are used in the Businesses; and (iii) all franchises, licenses and/or similar arrangements granted to the Seller by others and/or to others by the Seller. None of the patents, patent applications, copyright registrations or applications, registered trade names, trademark registrations or applications, franchises, licenses or other arrangements set forth or required to be set forth in Schedule 5.14 is subject to any pending challenge known to the Seller. (b) Schedule 5.14 also lists (i) the jurisdictions in which such intellectual property has been issued or registered or in which any application for such issuance and registration has been filed, (ii) licenses, sublicenses and other agreements as to which the Seller is a party and pursuant to which any person is authorized to use any Intellectual Property (as defined herein), and (iii) licenses, sublicenses and other agreements as to which the Seller is a party and pursuant to which the Seller is authorized to use any third party patents, trademarks or copyrights, including software ("Third Party Intellectual Rights") which are incorporated in, are or form a part of any product of the Seller. (c) Schedule 5.14 lists all hardware, computer software, identifiable know-how (and the manner in which such know-how is memorialized) and other identifiable technology (collectively, the "Seller Technology") which the Seller owns or licenses and is included in the Assets, and the nature of the Seller's rights in each item of Seller Technology. Schedule 5.14 also describes the technology design and development that is currently ongoing or planned for 1998. (d) The Seller owns, or is licensed or otherwise possesses all necessary rights to use all patents, trademarks, trade names, service marks, copyrights and any applications therefor, maskworks, net lists, schematics, technology, know-how, trade secrets, inventory, ideas, algorithms, processes, computer software programs and applications (in both source code and object code form), and tangible or intangible proprietary information or material ("Intellectual Property") that are used or marketed in its business as presently conducted and as proposed to be conducted or included or proposed to be included in its products or proposed products. (e) To the knowledge of the Seller, there is no unauthorized use, disclosure, infringement or misappropriation of any Intellectual Property rights of the Seller, any trade secret material to the Seller or any Intellectual Property right of any third party to the extent licensed by or through the Seller by any third party, including any employee or former employee of the Seller. Except as set forth in Schedule 5.14, the Seller has never entered into any agreement to indemnify any other person against any charge of infringement of any Intellectual Property. Except as set forth in Schedule 5.14, there are no royalties, fees or other payments payable by the Seller to any person by reason of the ownership, use, sale or disposition of Intellectual Property. (f) The Seller is not, nor will it be as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement, in material breach of any license, sublicense or other agreement relating to the Intellectual Property or Third Party Intellectual Property Rights. (g) The Seller has not (i) been served with process, or is aware that any person is intending to serve process on the Seller, in any suit, action or proceeding which involves a claim of infringement of any patents, trademarks, service marks, copyrights or violation of any trade secret or other proprietary right of any third party and (ii) brought any action, suit or proceeding for infringement of Intellectual Property against any third party. To the knowledge of the Seller, the business of the Seller as presently conducted and as proposed to be conducted, the Seller's products or proposed products do not infringe any patent, trademark, service mark, copyright, trade secret or other proprietary right of any third party. (h) The Seller has made available to the Buyer copies of all agreements executed by officers, employees and consultants of the Seller regarding the protection of proprietary information and the assignment to the Seller of any Intellectual Property arising from services performed for the Seller by such persons. (i) The Seller has, to the extent it deemed necessary and appropriate, obtained or entered into written agreements with third parties in connection with the disclosure to, or use or appropriation by, third parties, of trade secret or proprietary Intellectual Property owned by the Seller and not otherwise protected by a patent, a patent application, copyright, trademark, or other registration or legal scheme ("Confidential Information"), and does not know of any situation involving such third party use, disclosure or appropriation of Confidential Information where the lack of such a written agreement is likely to result in any material adverse effect on the Seller or the Assets. 5.15 Sensitive Payments. To the best of the Seller's knowledge, the Seller has not (a) made any contributions, payments or gifts to or for the private use of any governmental official, employee or agent where either the payment or the purpose of such contribution, payment or gift is illegal under the laws of the United States or the jurisdiction in which made, (b) established or maintained any unrecorded fund or asset for any purpose or made any false or artificial entries on its or their books, or (c) made any payments to any person with the intention that any part of such payment was to be used for any purpose other than that described in the documents supporting the payment. 5.16 Real Property. Except as set forth in Schedule 5.16 to this Agreement, the Seller neither owns or has any interest of any kind (whether ownership, lease, or otherwise) in any real property except to the extent of the Seller's leasehold interests under the leases for its Businesses premises, true and complete copies of which leases (including all amendments thereto) are annexed to Schedule 5.16 (the "Leases"). The Seller, and to the knowledge of the Seller, the landlords thereunder, are presently in compliance with all of their respective Assumed Liabilities under the Leases, and the premises leased thereunder are in good condition (reasonable wear and tear excepted) and are adequate for the operation of the Seller's Businesses as presently conducted. 5.17 Status of Payment Obligations in Respect of Assumed Liabilities. Schedule 5.17 annexed hereto sets forth the current status of all payment obligations of the Seller and/or AUGI in respect of each of the Assumed Liabilities set forth on Schedule 2.1 annexed hereto. 5.18 Disclosure and Duty of Inquiry. Sellers have filed all tax returns required to be filed (except for returns that have been properly extended) and have paid all taxes shown as owing (other than taxes currently being contested in good faith by appropriate proceedings, for which amounts have been reserved in accordance with generally accepted accounting principles ("GAAP")). No tax returns are currently the subject of audit and there has been no extension of time for assessment of taxes or waiver of the statute of limitations with respect to taxes. Neither Seller is party to any tax sharing or allocation agreement and neither has ever been a member of an affiliated group filing a consolidated federal income tax return. The Buyer is not nor will it be required to undertake any independent investigation to determine the truth, accuracy and completeness of the representations and warranties made by the Seller pursuant to this Article 5. 6. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF AUGI. In connection with the sale of the Assets to the Buyer and in order to induce the Buyer to enter into this Agreement, AUGI hereby represents and warrants to the Buyer, as of the date of this Agreement (unless otherwise indicated), as follows: 6.1 Absence of Undisclosed Liabilities. Except as expressly set forth in the Registration Statement or as disclosed pursuant to schedules to this Agreement, or arising in the normal course of the Seller's Businesses since July 31, 1997, to the best of AUGI's knowledge there are no liabilities or obligations (including, without limitation, any tax liabilities or accruals) of either Seller, including any contingent liabilities, that are, in the aggregate, material to the Businesses or which could have Material Adverse Effect on the Assets, other than the Assumed Liabilities identified on Schedule 2.1. To the best of AUGI's knowledge, the amount of each of the Assumed Liabilities is correctly set forth on Schedule 2.1 in all material respects and, subject to obtaining an extension of the UPS Note (as herein described), not more than $500,000 of such Assumed Liabilities will be payable on or before April 30, 1999. 6.2 Disclosure and Duty of Inquiry. The Buyer is not nor will it be required to undertake any independent investigation to determine the truth, accuracy and completeness of the representations and warranties made by AUGI pursuant to this Article 6. 7. REPRESENTATIONS AND WARRANTIES OF EXTEL AND THE BUYER In connection with the purchase of the Assets from the Seller hereunder, EXTEL and the Buyer hereby jointly and severally represent and warrant to the Seller and AUGI as follows: 7.1 Organization, Good Standing and Qualification. Each of EXTEL and the Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all necessary power and authority to execute and deliver this Agreement, to perform the Assumed Liabilities hereunder, and to consummate the transactions contemplated hereby. Each of EXTEL and the Buyer has all requisite corporate power and authority to own its properties and to conduct its business as currently conducted, and to execute, deliver and perform its Assumed Liabilities under this Agreement. The Buyer is a wholly-owned subsidiary of EXTEL. 7.2 Authorization of Agreement. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by EXTEL and the Buyer have been duly and validly authorized by all necessary and appropriate action by the respective Board of Directors and stockholders of EXTEL and the Buyer; and EXTEL and the Buyer each have the full legal right, power and authority to execute and deliver this Agreement, to perform the Assumed Liabilities hereunder, and to consummate the transactions contemplated hereby. No further corporate authorization is necessary on the part of EXTEL or the Buyer to consummate the transactions contemplated hereby. 7.3 Valid and Binding Agreement. This Agreement and, when executed and delivered, all other agreements, instruments of transfer or assignment, documents, and other instruments, constitute and will constitute the legal, valid and binding obligation of EXTEL and the Buyer, enforceable against EXTEL and the Buyer in accordance with their respective terms, except, in each case, to the extent limited by bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, and except that the remedy of specific performance or similar equitable relief is available only at the discretion of the court before which enforcement is sought. 7.4 No Breach of Statute or Contract. Neither the execution and delivery of this Agreement, nor compliance with the terms and provisions of this Agreement or such other agreements on the part of EXTEL or the Buyer will: (a) violate any statute or regulation of any governmental authority, domestic or foreign, affecting EXTEL or the Buyer; (b) require the issuance of any authorization, license, consent or approval of any federal or state governmental agency (except to the extent that EXTEL or the Buyer may be required to be qualified as a foreign corporation in certain jurisdictions in which it is not currently so qualified, and to the extent that EXTEL or the Buyer may be required to reapply for any permits, licenses and/or franchises which are not assignable as part of the Assets and any consent of EXTEL's current lenders as may be required); or (c) conflict with or result in a breach of any of the terms, conditions or provisions of any judgment, order, injunction, decree, note, indenture, loan agreement or other agreement or instrument to which EXTEL or the Buyer is a party, or by which EXTEL or the Buyer is bound, or constitute a default thereunder. 7.5 Disclosure. EXTEL and the Buyer have previously delivered to the Seller and AUGI a true and correct copy of the Annual Report on Form 10-K for the year ended March 31, 1998, as filed by EXTEL with the SEC, including therein audited and unaudited financial information (the "EXTEL Public Filings"). The EXTEL Public Filings comply with the SEC disclosure requirements applicable thereto and do not contain any untrue statement of a material fact or omit to state any material fact necessary in light of the circumstances under which it was made, in order to make the statements therein not misleading. Since the date of the most recent EXTEL Public Filings, (a) there has been no material change in the capitalization of EXTEL or the Buyer, (b) the businesses of EXTEL, the Buyer and their respective subsidiaries have been operated in the normal course, and (c) there has been no material adverse change in the financial condition, operations or businesses of EXTEL, the Buyer, or their respective subsidiaries (taken as a consolidated whole) from that reflected in such report. 7.6 Litigation. There is no suit, action, arbitration, or legal, administrative or other proceeding, or governmental investigation pending, or to the knowledge of EXTEL or the Buyer, threatened, against EXTEL or the Buyer (i) which challenges EXTEL's or the Buyer's ability to consummate the transactions provided for herein, or (ii) materially restricts or affects the business operations of EXTEL or the Buyer either before or after the Closing. 7.7 Disclosure and Duty of Inquiry. No representations or warranties by Buyer or EXTEL in this Agreement and no statement or information contained in the schedules hereto or any certificate furnished or to be furnished to Seller or AUGI hereunder contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading. The Seller and AUGI are not and will not be required to undertake any independent investigation to determine the truth, accuracy and completeness of the representations and warranties made by EXTEL and the Buyer in this Article 7. 8. PRE-CLOSING COVENANTS. Each of the Seller and AUGI covenants and agrees that, from April 15, 1998 (the date of execution of a letter of intent regarding the transactions contemplated hereby) through and including the Closing Date: 8.1 Representations and Warranties. The representations and warranties contained in Articles 4 and 5 of this Agreement shall be true and correct in all material respects as of the Closing Date as if made on such date. 8.2 Access to Information. (a) The Seller shall permit the Buyer and its counsel, accountants and other representatives, upon reasonable advance notice to the Seller, during normal business hours and without undue disruption of the Businesses of the Seller, to have reasonable access to all properties, books, accounts, records, contracts, documents and information relating to the Businesses and, to the extent reasonably required by the Buyer for its due diligence, the Seller. The Buyer and its representatives shall also be permitted to freely consult with the Seller's counsel concerning the Businesses. (b) Each of the Seller and AUGI will make available to the Buyer and its accountants all financial records relating to the Seller and the Businesses, and shall cause the Seller's accountants to cooperate with the Buyer's accountants and make available to the Buyer's accountants all work papers and other materials developed by or in the possession of the Seller's accountants, for the purpose of assisting the Buyer's accountants in the performance of an audit of the Businesses for all periods subsequent to January 1, 1996. 8.3 Conduct of Businesses in Normal Course. The Seller shall carry on the Businesses in substantially the same manner as heretofore conducted and as provided under the Management Agreement dated April 15, 1998, and shall not make or institute any unusual or novel methods of service, sale, purchase, lease, management, accounting or operation that will vary materially from those methods used by the Seller as of the date hereof, without in each instance obtaining the prior written consent of the Buyer. 8.4 Preservation of Businesses and Relationships. The Seller shall, without making or incurring any unusual commitments or expenditures, use all reasonable efforts to preserve its business organization intact, and preserve its present relationships with referral sources, clients, customers, suppliers and others having business relationships with the Seller. 8.5 Maintenance of Insurance. The Seller shall continue to carry its existing insurance, to the extent obtainable upon reasonable terms. 8.6 Corporate Matters. The Seller shall not, without the prior written consent of the Buyer: (a) amend, cancel or modify any Material Contract or enter into any material new agreement, commitment or transaction except, in each instance, in the ordinary course of business; (b) modify in any material respect (i) any material agreement relating to the Businesses to which the Seller is a party or by which it may be bound, or (ii) any policies, procedures or methods of doing business relating to the Businesses, except in each case in the ordinary course of business; (c) except pursuant to commitments in effect on the date hereof (to the extent disclosed in this Agreement or in any schedule hereto), make any capital expenditure(s) or commitment(s), whether by means of purchase, lease or otherwise, or any operating lease commitment(s), in excess of $50,000 in the aggregate; (d) dispose of or transfer any Asset outside of the ordinary course of business, or sell, assign or dispose of any capital asset(s) with a net book value in excess of $15,000 as to any one item or $50,000 in the aggregate; (e) materially change its method of collection of accounts or notes receivable, or accelerate or slow in any material respect its payment of accounts payable; (f) forgive any obligation or performance (past, present or future) owed to the Businesses, except for any intercompany obligation owed by AUGI or its Affiliates to the Seller; (g) incur any material liability or indebtedness except, in each instance, in the ordinary course of business; (h) subject any of the assets or properties of the Businesses to any further liens or encumbrances, other than Permitted Liens; (i) make any payments to any Affiliate of the Seller; or (j) agree to do, or take any action in furtherance of, any of the foregoing. 9. ADDITIONAL AGREEMENTS OF THE PARTIES. 9.1 Confidentiality. Notwithstanding anything to the contrary contained in this Agreement, and subject only to any disclosure requirements which may be imposed upon any party under applicable state or federal securities or antitrust laws, it is expressly understood and agreed by the parties that, except with respect to matters or information which are publicly available other than by reason of a breach of this Section 9.1, (i) this Agreement, the schedules hereto, and the conversations, negotiations and transactions relating hereto and/or contemplated hereby, and (ii) all financial information, business records and other non-public information concerning either party which the other party or its representatives has received or may hereafter receive, shall be maintained in the strictest confidence by the recipient and its representatives, and shall not be disclosed to any person that is not associated or affiliated with the recipient and involved in the transactions contemplated hereby, without the prior written approval of the party which provided the information. The parties hereto shall use their best efforts to avoid disclosure of any of the foregoing or undue disruption of any of the business operations or personnel of the parties, and no party shall issue any press release or other public announcement regarding the transactions contemplated hereby without the prior approval of each other party (such approval not to be unreasonably withheld or delayed) unless otherwise required under applicable laws and regulations, including SEC rules and regulations. In the event that the transactions contemplated hereby shall not be consummated for any reason, each party covenants and agrees that neither it nor any of its representatives shall retain (other than information which is publicly available other than by reason of a breach of this Section 9.1) any documents, lists or other writings of any other party which it may have received or obtained in connection herewith or any documents incorporating any of the information contained in any of the same (all of which, and all copies thereof in the possession or control of the recipient or its representatives, shall be returned to the party which provided the information). 9.2 Exclusivity. From the date hereof through any termination of this Agreement in accordance with Section 13 below, the Seller and AUGI shall not (and shall not permit any of their stockholders, directors, officers, Affiliates, agents or representatives to) negotiate with or enter into any other commitments, agreements or understandings with any person, firm or corporation (other than its Affiliates) in respect of any sale of capital stock or assets of the Seller, any merger, consolidation or corporate reorganization, or any other such transaction relating to the Seller or the Businesses. 9.3 Bill of Sale; Transfer Documents; Assumption Agreement. (a) On the Closing Date, the Seller shall execute and deliver to the Buyer a bill of sale in respect of the Assets in substantially the form of Exhibit A annexed hereto (the "Bill of Sale"). In addition, to the extent that specific assignments may be necessary or appropriate in respect of any of the Assets, and/or to the extent that any of the Assets are represented by certificates of title or other documents, then the Seller shall execute and deliver to the Buyer any and/or additional transfer documents, and shall endorse to and in the name of the Buyer all certificates of title and other such documents, as may be necessary or appropriate in order to effect the full transfer to the Buyer or its designee(s) of all of the Assets. (b) On the Closing Date, the Seller and the Buyer shall execute and deliver to one another an assignment and assumption agreement in respect of the Assumed Liabilities in substantially the form of Exhibit B annexed hereto (the "Assumption Agreement"). In addition, to the extent that specific assignments may be required in order to effect the assignment to and assumption by the Buyer of any particular Assumed Liabilities, the Seller and the Buyer shall execute and deliver to one another such additional assignment and assumption documents. 9.4 Additional Agreements and Instruments. On or before the Closing Date, the Seller, AUGI, EXTEL, and the Buyer shall execute, deliver and file all exhibits, agreements, certificates, instruments and other documents, not inconsistent with the provisions of this Agreement, which, in the opinion of counsel to the parties hereto, shall reasonably be required to be executed, delivered and filed in order to consummate the transactions contemplated by this Agreement. 9.5 Non-Interference. Neither EXTEL, the Buyer, the Seller, nor AUGI shall cause to occur any act, event or condition which would cause any of their respective representations and warranties made in this Agreement to be or become untrue or incorrect in any material respect as of the Closing Date, or would interfere with, frustrate or render unreasonably expensive the satisfaction by the other party or parties of any of the conditions precedent set forth in Sections 10 and 11 below. 9.6 Management Agreement. On the Closing Date, the Management Agreement dated April 15, 1998, as amended June 22, 1998, shall terminate as provided in Section 5.2(ii) of the Management Agreement; provided however, within 13 months of the Closing Date, EXTEL or Buyer shall pay AUGI in the amount of $150,000 as reimbursement for advances of expenses by AUGI to CCC. The obligation shall be evidenced by a promissory note to be delivered at the Closing in the form attached hereto as Exhibit D. 9.7 Letter Agreement. On the Closing Date, AUGI and the Seller, on the one hand, and EXTEL and the Buyer, on the other hand, shall execute and deliver to each other the letter agreement in the form annexed hereto as Exhibit E. 10. CONDITIONS PRECEDENT 10.1 Conditions to Obligations of EXTEL and Buyer. The obligations of EXTEL and the Buyer to consummate the transactions contemplated by this Agreement are further subject to the satisfaction, at or before the Closing Date, of all the following conditions, any one or more of which may be waived in writing by the Buyer: (a) Accuracy of Representations and Warranties. All representations and warranties made by the Seller and/or AUGI in this Agreement shall be true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of that date. (b) Performance. The Seller and AUGI shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by them on or before the Closing Date. (c) Certification. The Buyer shall have received a certificate, dated the Closing Date, signed by the Seller and AUGI, certifying, in such detail as the Buyer and its counsel may reasonably request, that the conditions specified in Sections 10.1(a) and 10.1(b) above have been fulfilled. (d) Resolutions. The Buyer shall have received certified resolutions of the Board of Directors and the sole stockholder of the Seller and of the Board of Directors of AUGI, in form reasonably satisfactory to counsel for the Buyer, authorizing the Seller's and AUGI's execution, delivery and performance of this Agreement and all actions to be taken by the Seller and AUGI hereunder. (e) Absence of Litigation. No action, suit or proceeding by or before any court or any governmental body or authority, against either the Seller or AUGI or pertaining to the transactions contemplated by this Agreement or their consummation, shall have been instituted on or before the Closing Date, which action, suit or proceeding would, if determined adversely, have a Material Adverse Effect. (f) Due Diligence. The Buyer shall have completed, to its satisfaction, due diligence of the properties and assets of the Businesses, contracts, agreements, books, records and documents relating to the Seller and the Assets. (g) Consents. All necessary consents of third parties required for the consummation of this Agreement and the proposed transaction, including: (i) any parties to any Material Contracts (including, without limitation, contracts with customers of the Businesses), and any licensing authorities which are material to the Businesses, and (ii) any governmental authorities or agencies to the extent required to be obtained prior to the Closing in connection with the transactions contemplated by this Agreement, shall have been obtained and true and complete copies thereof delivered to the Buyer. (h) Material Adverse Effect. On the Closing Date, there shall not have occurred any event or condition materially and adversely affecting the Assets or the financial condition, operations or Businesses of the Seller, except as disclosed in this Agreement or the schedules hereto on the date hereof. (i) Extension of UPS Note. AUGI shall have obtained prior to the Closing Date, an extension until not earlier than November 1999 of the $1.5 million note of Connectsoft and AUGI payable to UPS, which is currently due and payable on April 30, 1999 (the "UPS Note"). (j) Intercompany Obligations. The Buyer shall have received from AUGI and its Affiliates written releases or other assurances, in form and substance reasonably satisfactory to the Buyer, that AUGI and its Affiliates will not assert against the Buyer or the Assets or any of Buyer's Affiliates any claims in respect of obligations owed by the Seller to AUGI and its Affiliates, except for the Note to be delivered at the Closing in the form annexed hereto as Exhibit D. (k) Additional Working Capital. EXTEL shall have obtained a minimum of $1.0 million of additional working capital financing for the Businesses upon such terms and conditions as shall be reasonably acceptable to EXTEL. (l) Bill of Sale. On or before the Closing Date, the Seller shall have executed and delivered the Bill of Sale to the Buyer. (m) Keyman Agreement. On or before the Closing Date, Howard Katz shall have entered into an employment agreement with EXTEL on terms and conditions mutually agreeable to Howard Katz and EXTEL. (n) Non-Disclosure Agreements. All employees of CCC shall have executed and delivered to CCC (and Buyer shall have received copies thereof) Non-Disclosure Agreements in form and substance reasonably satisfactory to Buyer. 10.2 Conditions to Obligations of AUGI and Seller. The obligations of AUGI and the Seller to consummate the transactions contemplated by this Agreement are further subject to the satisfaction, at or before the Closing Date, of all the following conditions, any one or more of which may be waived in writing by AUGI: (a) Accuracy of Representations and Warranties. All representations and warranties made by EXTEL and the Buyer in this Agreement shall be true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of that date. (b) Performance. EXTEL and the Buyer shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by EXTEL and the Buyer on or before the Closing Date. (c) Certification. The Seller and AUGI shall have received a certificate, dated the Closing Date, executed by EXTEL and the Buyer, certifying, in such detail as the Seller and AUGI and their counsel may reasonably request, that the conditions specified in Sections 10.2(a) and 10.2(b) above have been fulfilled. (d) Resolutions. The Seller and AUGI shall have received certified resolutions of the Board of Directors and sole stockholder of the Buyer and of the Board of Directors of EXTEL, in form reasonably satisfactory to counsel for the Seller and AUGI, authorizing the Buyer's and EXTEL's execution, delivery and performance of this Agreement and all actions to be taken by the Buyer and EXTEL hereunder. (e) Consents. All necessary consents of third parties required for the consummation of this Agreement and the proposed transaction, including: (i) any parties to any Material Contracts (including, without limitation, contracts with customers of the Businesses), and any licensing authorities which are material to the Businesses, and (ii) any governmental authorities or agencies to the extent required to be obtained prior to the Closing in connection with the transactions contemplated by this Agreement, shall have been obtained and true and complete copies thereof delivered to the Buyer. (f) Assumption Agreement. The Buyer shall have executed and delivered to the Seller the Assumption Agreement. (g) Promissory Note. The Buyer and EXTEL shall have executed and delivered to AUGI the Note in the form annexed hereto as Exhibit D. (h) Letter Agreement. The Buyer and EXTEL shall have executed and delivered to AUGI and the Seller the letter agreement in the form annexed hereto as Exhibit E. 11. CLOSING. 11.1 Place and Date of Closing. Unless this Agreement shall be terminated pursuant to Section 13 below, the consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of the Buyer, or such other location as is agreed to between the parties, at 10:00 A.M. local time on the date that is three (3) business days after the satisfaction of all conditions to Closing set forth herein, it being understood that the parties hereto shall use their best efforts to satisfy the conditions precedent to Closing, in each case on or before July 15, 1998 (the date of the Closing being referred to in this Agreement as the "Closing Date"). If, notwithstanding the parties' best efforts, such conditions shall not have been satisfied by such date, then the Closing Date shall be extended to the date that is three (3) Businesses days after the satisfaction of all such conditions, but which shall not in any case be later than July 31, 1998 ("Outside Closing Date"), unless the parties hereto agree in writing otherwise. 11.2 Deliveries at Closing. At the Closing, the Seller and the Buyer, respectively, will deliver the following documents: (a) The Seller and AUGI will deliver or cause to be delivered to EXTEL and to the Buyer: (i) a copy of the by-laws of the Seller and resolutions adopted by the Seller's Board of Directors and sole stockholder approving the transactions contemplated by this Agreement, certified by the Secretary of the Seller as of the Closing Date; (ii) a copy of the certificate of incorporation of the Seller, with all amendments thereto, together with a long form good standing certificate and tax clearance certificate, certified by the Secretary of State of the Seller's state of incorporation as of a date no later than five (5) days before the Closing Date; (iii) certificate(s) by the Secretaries of the Seller and of AUGI, dated as of the Closing Date, attesting to the authority and verifying the signature of each person who signed this Agreement or any other agreement, instrument or certificate delivered in connection with the transactions contemplated hereby on behalf of the Seller and AUGI, respectively; (iv) all agreements, authorizations, exemptions, waivers and consents of any third persons or entities required to be obtained by the Seller or AUGI hereunder or generally necessary for the consummation by the Seller and AUGI of the transactions contemplated by this Agreement; (v) sufficient, original, executed copies of assignments of patents, trademarks and/or copyrights, in form and substance acceptable to the Buyer, such that there is one original version for each group of patents, trademarks and copyrights; (vi) certificate(s), dated the Closing Date, signed by the chief financial officer of each of the Seller and AUGI that the conditions specified in Section 10.2(a) and (b) hereof have been fulfilled in all respects; (vii) assignment of leases for each Lease; and (viii) such other specific instruments of sale, conveyance, assignment, transfer, and delivery as are required to vest good and marketable title to the Assets in the Buyer. (b) EXTEL and the Buyer will deliver or cause to be delivered to the Seller and to AUGI: (i) a copy of the by-laws of the Buyer and resolutions adopted by the Buyer's Board of Directors and sole stockholder approving the transactions contemplated by this Agreement, certified by the Secretary of the Buyer as of the Closing Date; (ii) a copy of the certificate of incorporation of the Buyer, with all amendments thereto, together with a long form good standing certificate and tax clearance certificate, certified by the Secretary of State of the Buyer's state of incorporation as of a date no later than five (5) days before the Closing Date; (iii) certificate(s) by the Secretaries of EXTEL and of the Buyer, dated as of the Closing Date, attesting to the authority and verifying the signature of each person who signed this Agreement or any other agreement, instrument or certificate delivered in connection with the transactions contemplated hereby on behalf of EXTEL and the Buyer, respectively; (iv) certificate(s), dated the Closing Date, signed by the chief financial officer of each of EXTEL and the Buyer that the conditions specified in Section 10.1(a) and (b) hereof have been fulfilled in all respects; and (v) such other specific instruments of conveyance, assignment, transfer, and delivery as are required to confirm that the Buyer shall have assumed the payment and performance of the Assumed Liabilities and the performance of the Material Contracts. 12. TERMINATION OF AGREEMENT. 12.1 General. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing: (a) by the mutual written consent of the parties hereto; (b) by EXTEL and the Buyer, on the one hand, or by the Seller and AUGI, on the other hand, if: (i) a material breach shall exist with respect to the written representations and warranties made by the other party or parties, as the case may be, which breach shall not have been cured within thirty (30) days after notice thereof to such other party or parties; (ii) the other party or parties, as the case may be, shall take any action prohibited by this Agreement, if such actions shall or may have a Material Adverse Effect on the financial condition, operations, or Businesses of the Seller or on any material portion of the Assets and/or the consummation of the transactions contemplated hereby, and such breach shall not have been cured, if the same is capable of cure, within thirty (30) days after notice thereof to the breaching party, (iii) the other party or parties, as the case may be, shall not have furnished, upon reasonable notice therefor, such certificates and documents required in connection with the transactions contemplated hereby and matters incidental thereto as it or they shall have agreed to furnish, and it is reasonably unlikely that the other party or parties will be able to furnish such item(s) prior to the Outside Closing Date specified below, or (iv) any consent of any third party to the transactions contemplated hereby (whether or not the necessity of which is disclosed herein or in any schedule hereto) is reasonably necessary to prevent a default under any outstanding material obligation of EXTEL, the Buyer, AUGI or the Seller, and such consent is not obtainable, after good faith efforts to obtain the same, without material cost or penalty (unless the party or parties not seeking to terminate this Agreement agrees or agree to pay such cost or penalty); or (c) by EXTEL or the Buyer, on the one hand, or by the Seller and AUGI, on the other hand, at any time on or after the Outside Closing Date, if the transactions contemplated hereby shall not have been consummated prior thereto, and the party directing termination shall not then be in breach or default of any obligations imposed upon such party by this Agreement. 12.2 Effect of Termination. In the event of termination by either party as above provided in this Section 12, prompt written notice shall be given to the other party. Termination of this Agreement shall not relieve any party of any of its obligations pursuant to Section 9.1 above, and shall not relieve any breaching party from liability for any breach of this Agreement. 13. INDEMNIFICATION. It is expressly understood and agreed by and among all parties to this Agreement that the indemnification provisions set forth in this Article 13 are in addition to, and not in lieu of, the respective indemnification obligations of each of EXTEL and AUGI as are set forth in Article 14 herein. In the event and to the extent that there shall be any inconsistency between the rights and obligations contained in this Article 13 and to Article 14, the terms and conditions of Article 14, shall, in all respects, govern. 13.1 General. (a) Without prejudice to any rights of contribution as between the Seller and AUGI, from and after the Closing Date, the Seller and AUGI shall jointly and severally defend, indemnify and hold harmless the Buyer and its stockholders, affiliates, officers, directors, employees and agents (each a "Buyer Indemnified Person") from, against and in respect of any and all claims, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including costs of investigation, interest, penalties and reasonable attorneys' fees, that the Buyer may incur, sustain or suffer ("Losses") as a result of (i) any breach of, or failure by the Seller or AUGI to perform, in any material respect, any of the representations, warranties, covenants or agreements of the Seller or AUGI contained in this Agreement, or (ii) any failure by the Seller to pay or perform when due (or any imposition on the Buyer or EXTEL) any of its retained liabilities (including any liabilities of the Business or the Seller which are not Assumed Liabilities). (b) Without prejudice to any rights of contribution as between the Buyer and EXTEL, from and after the Closing Date, the Buyer and EXTEL shall jointly and severally defend, indemnify and hold harmless the Seller and AUGI, and their respective stockholders, affiliates, officers, directors, employees and agents (each a "Seller Indemnified Person") from, against and in respect of any and all claims, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including costs of investigation, interest, penalties and reasonable attorneys' fees, that the Seller or AUGI may incur, sustain or suffer as a result of (i) any breach of, or failure by the Buyer or EXTEL to perform, in any material respect, any of the representations, warranties, covenants or agreements of the Buyer or EXTEL contained in this Agreement, or (ii) any failure by the Buyer to pay or perform (or any imposition on the Seller or AUGI) when due any of the Assumed Liabilities. 13.2 Limitations on Certain Indemnity. (a) Notwithstanding any other provision of this Agreement to the contrary, the Seller and AUGI shall not be liable to the Buyer with respect to Losses unless and until, and then only to the extent that, the aggregate amount of all Losses incurred by the Buyer shall exceed the sum of $50,000 (the "Basket"); provided, however, that the Basket shall not be available with respect to any Losses involving proven fraud by the Seller or AUGI. The Seller and AUGI shall thereafter be liable for all Losses in excess of the Basket, provided that the Seller's and AUGI's maximum aggregate liability in respect of all Losses shall not, in the absence of proven fraud by the Seller or AUGI in respect of any particular Losses, in any event exceed the limitations set forth in Section 13.2(b) below. (b) Except with respect to any Losses involving proven fraud by the Seller or AUGI, the Seller and AUGI shall only be required, in the aggregate, to pay indemnification hereunder, after application of the Basket, up to a maximum amount equal to the Consideration. (c) The Buyer shall be entitled to indemnification by the Seller and AUGI for Losses only in respect of claims for which notice of claim shall have been given to the Seller and AUGI on or before June 30, 1999, or, with respect to Losses relating to a breach of any warranties in respect of taxes, the expiration of the final statute of limitations for those tax returns covered by the tax warranties contained herein; provided, however, that the Buyer shall not be entitled to indemnification from the Seller or AUGI in the event that the subject claim for indemnification relates to a third-party claim and the Buyer delayed giving notice thereof to the Seller and AUGI to such an extent as to cause material prejudice to the defense of such third-party claim. This Section 13.2(c) shall not apply to any failure by the Seller to pay when due any of its retained liabilities. 13.3 Claims for Indemnity. Whenever a claim shall arise for which any party shall be entitled to indemnification hereunder, the indemnified party shall notify the indemnifying party in writing (which may include facsimile transmission) within three (3) Business days of the indemnified party's first receipt of notice of, or the indemnified party's obtaining actual knowledge of, such claim, and in any event within such shorter period as may be necessary for the indemnifying party or parties to take appropriate action to resist such claim. Such notice shall specify all facts known to the indemnified party giving rise to such indemnity rights and shall estimate (to the extent reasonably possible) the amount of potential liability arising therefrom. If the indemnifying party shall be duly notified of such dispute, the parties shall attempt to settle and compromise the same or may agree to submit the same to arbitration or, if unable or unwilling to do any of the foregoing, such dispute shall be settled by appropriate litigation, and any rights of indemnification established by reason of such settlement, compromise, arbitration or litigation shall promptly thereafter be paid and satisfied by those indemnifying parties obligated to make indemnification hereunder. 13.4 Right to Defend. If the facts giving rise to any claim for indemnification shall involve any actual or threatened action or demand by any third party against the indemnified party or any of its Affiliates, the indemnifying party or parties shall be entitled (without prejudice to the indemnified party's right to participate at its own expense through counsel of its own choosing), at their expense and through counsel of their own choosing, to defend or prosecute such claim in the name of the indemnifying party or parties, or any of them, or if necessary, in the name of the indemnified party. In any event, the indemnified party shall give the indemnifying party advance written notice of any proposed compromise or settlement of any such claim. If the remedy sought in any such action or demand is solely money damages, the indemnifying party shall have five (5) Business Days after receipt of such notice of settlement to object to the proposed compromise or settlement, and if it does so object, the indemnifying party shall be required to undertake, conduct and control, though counsel of its own choosing and at its sole expense, the settlement or defense thereof, and the indemnified party shall cooperate with the indemnifying party in connection therewith. 14. INDEMNIFICATION - ASSUMED LIABILITIES/MATERIAL CONTRACTS 14.1. Indemnification of the Seller and AUGI. Each of EXTEL and Buyer does hereby jointly and severally, irrevocably, absolutely and unconditionally indemnify, defend and hold harmless the Seller and AUGI, and each of them, individually and severally, to the fullest extent permitted by law, from and against any claim against the Seller or AUGI in respect of (i) any act, omission, neglect, breach or failure by EXTEL and/or Buyer, or either of them, to timely and fully pay and perform each and every one of the Assumed Liabilities and Material Contracts, when due, and (ii) as a result of, arising from or in connection with any claim by any taxing authority for Taxes of or relating to EXTEL or Buyer, including (but not limited to) all Taxes attributable to the business and operations of any of them after the Closing Date (all of the foregoing being referred to collectively as the "AUGI Group Indemnified Amounts"), except to the extent provided in Sections 2.2(b) and 14.2. Each of the Buyer and EXTEL jointly and severally covenants and agrees to fully pay and reimburse each of the Seller and AUGI, within twenty-four (24) hours of written demand therefor, for any payments made or amounts which the Seller or AUGI becomes legally obligated to pay in connection with any of the AUGI Group Indemnified Amounts, except to the extent provided in Sections 2.2(b) and 14.2. 14.2 Indemnification of the Buyer and EXTEL. Each of AUGI, Connectsoft and CCC does hereby jointly and severally, irrevocably, absolutely and unconditionally indemnify, defend and holds harmless the Buyer and EXTEL, and each of them, individually and severally, to the fullest extent permitted by law, from and against any claim against the Buyer or EXTEL in respect of (i) any act, omission, neglect, breach or failure by AUGI, Connectsoft and/or CCC, or any of them, to timely and fully pay and perform (a) each and every one of the Excluded Liabilities, when due, and (b) any of the Assumed Liabilities, but only to the extent that the aggregate principal amount of all such Assumed Liabilities shall exceed $4,500,000 and (ii) as a result of, arising from or in connection with any claim by any taxing authority for Taxes of or relating to AUGI, Connectsoft or CCC, including (but not limited to) all Taxes attributable to the business and operations of any of them prior to the Closing Date (all of the foregoing being referred to collectively as the "EXTEL Group Indemnified Amount"). For purposes of this Agreement, "Taxes" shall mean all federal, state, county, local and other taxes, including, without limitation, income taxes, estimated taxes, withholding taxes, excise taxes, sales taxes, use taxes, gross receipt taxes, franchise taxes, employment and payroll related taxes, property taxes and import duties, whether or not measured in whole or in part by net income, and all deficiencies or other additions to tax, interest and penalties owed by it in connection with any such taxes. Each of AUGI, Connectsoft and CCC jointly and severally covenants and agrees to fully pay and reimburse each of the Buyer and EXTEL, within twenty-four (24) hours of written demand therefor, for any payments made or amounts which the Buyer or EXTEL becomes legally obligated to pay in connection with any of the EXTEL Group Indemnified Amount. 14.3 Claims for Indemnity. Whenever a claim shall arise for which any party shall be entitled to indemnification hereunder, the indemnified party shall promptly notify the indemnifying party in writing (which may include facsimile transmission) following the indemnified party's receipt of notice of, or the indemnified party's obtaining actual knowledge of, such claim. Such notice shall specify all facts known to the indemnified party giving rise to such indemnity rights and shall estimate (to the extent reasonably possible) the amount of potential liability arising therefrom. 14.4 Right to Defend. If the facts giving rise to any claim for indemnification shall involve any actual or threatened action or demand by any third party against the indemnified party or any of its affiliates, the indemnifying party or parties shall be entitled (without prejudice to the indemnified party's right to participate at its own expense through counsel of its own choosing), at their expense and through counsel of their own choosing, to defend or prosecute such claim in the name of the indemnifying party or parties, or any of them, or if necessary, in the name of the indemnified party. In any event, the indemnified party shall give the indemnifying party advance written notice of any proposed compromise or settlement of any such claim. If the remedy sought in any such action or demand is solely money damages, the indemnifying party shall have three (3) days after receipt of such notice of settlement to object to the proposed compromise or settlement, and if it does so object, the indemnifying party shall be required to undertake, conduct and control, though counsel of its own choosing and at its sole expense, the settlement or defense thereof, and the indemnified party shall cooperate with the indemnifying party in connection therewith. 15. POST-CLOSING EVENTS. The parties hereby further agree that, from and after the Closing: 15.1 Books and Records. At any time and from time to time from and after the Closing Date, the Buyer shall permit the Seller and/or AUGI to have access, during normal business hours and without undue disruption of the Buyer's Businesses, to those books and records transferred to the Buyer as part of the Assets, for purposes of preparing any tax filings or any other legitimate purpose of the Seller and/or AUGI. Such books and records may be made available at any location where the Buyer maintains same, and all costs and expenses relating to such access and inspection shall be the responsibility of the Seller and/or AUGI. In the event that, at any time and from time to time after the Closing Date, the Buyer shall determine to destroy or dispose of any such books and records, the Buyer shall give notice thereof to the Seller and/or AUGI not less than thirty (30) days prior to such disposition, and the Seller and/or AUGI shall have the right, at their own cost and expense, to take possession of such books and records prior to their disposition. 15.2 Employees. The Buyer hereby confirms its intention to retain, as of the Closing Date, the employees of the Businesses identified on Schedule 15.2, provided that the Buyer shall at all times retain the absolute discretion to terminate, dismiss, reassign or otherwise modify the terms of employment of any or all of such employees. The Buyer shall retain full discretion as to the nature and extent of benefits to be provided to employees for periods from and after the Closing Date. 15.3 Further Assurances. From time to time from and after the Closing Date, the parties will take any and all such action and execute and deliver to one another any and all further agreements, instruments, certificates and other documents, as may reasonably be requested by any other party in order more fully to consummate the transactions contemplated hereby, and to effect an orderly transition of the ownership and operations of the Businesses. 16 COSTS. 16.1 Finder's or Broker's Fees. The Buyer and EXTEL (on the one hand) and the Seller and AUGI (on the other hand) represents and warrants that neither they nor any of their respective Affiliates have dealt with any broker or finder in connection with any of the transactions contemplated by this Agreement, and no broker or other person is entitled to any commission or finder's fee in connection with any of these transactions. 16.2 Expenses. The Buyer, the Seller and AUGI shall each pay all of their own respective costs and expenses incurred or to be incurred by them, respectively, in negotiating and preparing this Agreement and in closing and carrying out the transactions contemplated by this Agreement. 17. FORM OF AGREEMENT. 17.1 Effect of Headings. The Section headings used in this Agreement and the titles of the schedules hereto are included for purposes of convenience only, and shall not affect the construction or interpretation of any of the provisions hereof or of the information set forth in such schedules. 17.2 Entire Agreement; Waivers. This Agreement (including the schedules and exhibits hereto) constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior agreements or understandings as to such subject matter. No party hereto has made any representation or warranty or given any covenant to the other except as set forth in this Agreement and the schedules and exhibits hereto. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 17.3 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 18. PARTIES. 18.1 Parties in Interest. Nothing in this Agreement, whether expressed or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the Assumed Liabilities or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action over or against any party to this Agreement. 18.2 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on or telecopied to the party to whom notice is to be given (telecopy confirmation received by the transmitting party), one day after being deposited for overnight delivery with a recognized overnight courier service in a properly addressed package with all charges prepaid or billed to the account of the sender, or on the third day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows: (a) If to the Seller or AUGI: Connectsoft, Inc. c/o American United Global, Inc. 11130 NE 33rd Place, Suite 250 Bellevue, Washington 98004 Attn: Mr. Robert M. Rubin Fax No.: (425) 822-9095 and (516) 254-2136 with a copy sent concurrently to: Jay M. Kaplowitz, Esq. Gersten, Savage, Kaplowitz & Fredericks, LLP 101 East 52nd Street New York, New York 10022 Fax No.: (212) 980-5192 (b) If to the Buyer: Executive TeleCard, Ltd. 4260 East Evans Avenue Denver, Colorado 80222 Attn: Christopher Vizas Fax No.: (303) 692-0965 with a copy sent concurrently to: Stephen Kaufman, Esq. Hogan & Hartson, LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Fax No.: (202) 637-5910 or to such other address or telecopier number as any party shall have specified by notice in writing given to all other parties. 19. MISCELLANEOUS. 19.1 Amendments and Modifications. No amendment or modification of this Agreement or any exhibit or schedule hereto shall be valid unless made in writing and signed by the party to be charged therewith. 19.2 Non-Assignability; Binding Effect. Neither this Agreement, nor any of the rights or liabilities of the parties hereunder, shall be assignable by any party hereto without the prior written consent of all other parties hereto, except that the Buyer may, without requirement of any consent of AUGI or the Seller, assign the Buyer's rights to indemnification hereunder to any secured lender to the Buyer from time to time. Otherwise, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 19.3 Governing Law; Jurisdiction. This Agreement shall be construed and interpreted and the rights granted herein governed in accordance with the laws of the State of Delaware applicable to contracts made and to be performed wholly within such State. Except as otherwise provided in Section 13.3 and Section 14.3 above, any claim, dispute or controversy arising under or in connection with this Agreement or any actual or alleged breach hereof shall be settled exclusively by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then obtaining. As part of his or her award, the arbitrator shall make a fair allocation of the fee of the American Arbitration Association, the cost of any transcript, and the parties' reasonable attorneys' fees, taking into account the merits and good faith of the parties' claims and defenses. Judgment may be entered on the award so rendered in any court having jurisdiction. Any process or other papers hereunder may be served by registered or certified mail, return receipt requested, or by personal service, provided that a reasonable time for appearance or response is allowed. [Signatures on following page] IN WITNESS WHEREOF, the parties have executed this Agreement on and as of the date first set forth above. AMERICAN UNITED GLOBAL, INC. By: ----------------------------------------- Name: Title: CONNECTSOFT COMMUNICATIONS CORPORATION By: ----------------------------------------- Name: Title: CONNECTSOFT HOLDING CORP. By: ----------------------------------------- Name: Title: C-SOFT ACQUISITION CORP. By: ----------------------------------------- Name: Title EXECUTIVE TELECARD, LTD. By: ----------------------------------------- Name: Title EX-22 3 EXHIBIT 22 Exhibit 22 EXHIBIT 22 - List of Subsidiaries. Western Power & Equipment Corp. Connectsoft Communications Corporation Connectsoft Holding Corp. Exodus Technologies, Inc. InterGlobe Networks, Inc. Seattle OnLine Acquisition Corp. EX-27 4 EXHIBIT 27
UT THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AMERICAN UNITED GLOBAL, INC., YEAR ENDED JULY 31, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. 1,000 YEAR JUL-31-1998 AUG-01-1997 JUL-31-1998 PRO-FORMA 34,534 4,574 107,795 0 0 146,904 116 49,954 (34,215) 15,862 0 7 1,156 87,807 0 0 0 0 2,827 67 39,185 146,904 163,478 1,354 163,048 163,048 (924) (4,470) (5,394) 4,197 (9,591) 24 (9,615) 0 0 248 (0.85) (0.85)
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