AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 9, 1997
REGISTRATION NO. 333-16629
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 2 TO THE FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INCOMNET, INC.
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(Exact Name of Registrant as Specified in its Charter)
CALIFORNIA 7375 95-2871296
- ---------------------------- ---------------------------- -------------
(State or Other Jurisdiction (Primary Standard Industrial (IRS Employer
of Incorporation or Classification Code Number) Identification
Organization) Number)
21031 VENTURA BOULEVARD, SUITE 1100
WOODLAND HILLS, CALIFORNIA 91364
(818) 887-3400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------------
MELVYN REZNICK, PRESIDENT
INCOMNET, INC.
21031 VENTURA BOULEVARD, SUITE 1100
WOODLAND HILLS, CALIFORNIA 91364
(818) 887-3400
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE)
COPIES TO:
MARK J. RICHARDSON, ESQ.
1299 OCEAN AVENUE, SUITE 900
SANTA MONICA, CALIFORNIA 90401
(310) 393-9992
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT IS DECLARED EFFECTIVE.
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT RULE 415 UNDER THE SECURITIES ACT OF 1933,
CHECK THE FOLLOWING BOX: /X/
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS AMOUNT TO BE PROPOSED PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED(1) MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION FEE
REGISTERED PRICE PER SHARE PRICE
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Common Stock . . . . . . 650,000 $ 3.00 1,950,000 $ 609.36
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Common Stock Underlying
Warrants to Purchase
Common Stock(1). . . . . 360,000 3.75 1,350,000 421.88
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Common Stock Underlying
Warrants to Purchase
Common Stock(1). . . . . 12,500 2.94 36,500 11.40
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Common Stock Underlying
Convertible Preferred
Stock(1) . . . . . . . . 950,000 3.00 2,850,000 982.76
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Total . . . . . . 1,972,500 - $ 6,436,500 $ 2,025.40
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(1) Pursuant to Rule 416, there are also being registered such additional
shares of Common Stock as may become issuable pursuant to the anti-dilution
provisions of the Warrants or the Series A Convertible Preferred Stock.
* $1,884.79 of this fee has already been paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JULY 9, 1997
INCOMNET, INC.
1,972,500 SHARES OF COMMON STOCK
The shares covered by this Prospectus are comprised of (i) 372,500 shares
of the Common Stock of Incomnet, Inc., a California corporation (the "Company")
which may be purchased upon the exercise of 372,500 warrants (the "Warrants")
which were issued to certain affiliates of a subsidiary of the Company and other
private investors (the "Warrantholders"), (ii) 43,826 shares of the Common Stock
of the Company (the "Outstanding Shares") which were issued to several investors
upon the prior conversion by them of Series A 2% Convertible Preferred Stock and
in a private placement, (iii) 950,000 shares of the Common Stock of the Company
which may be issued upon the conversion of 2,075 shares of Series A 2%
Convertible Preferred Stock, and (iv) 606,174 shares of the Company's Common
Stock (the "Shares"), some or all of which may be issued upon the conversion of
outstanding Series A 2% Convertible Preferred Stock ("Series A Preferred"), or
offered and sold from time to time at the prevailing market price through a
registered member of the National Association of Securities Dealers, Inc. (the
"Underwriter"). The Underwriter for the offer and sale of the Shares is
Continental Pacific Securities, Inc. The shares of Common Stock issuable upon
the exercise of the Warrants or the conversion of outstanding Series A Preferred
are referred to herein as the "Underlying Shares." The holders of the
Underlying Shares, when issued, and the Outstanding Shares are herein referred
to as the "Shareholders." The Outstanding and Underlying Shares are being
offered for resale by the Shareholders and not pursuant to an initial issuance
of stock by the Company. The Warrants and Series A Preferred have not been
separately registered and are not offered by this Prospectus. The Warrants,
Outstanding Shares and Series A Preferred were issued in private placements
pursuant to Section 4(2) of the Securities Act of 1933, as amended. See
"DESCRIPTION OF CAPITAL STOCK" and "SELLING SECURITY HOLDERS."
The Company's Common Stock is traded on the NASDAQ Small Capital Market
("NASDAQ/Small Cap") under the symbol "ICNT." The last reported sale price of
the Common Stock on the NASDAQ/Small Cap on June 27, 1997 was $4.87 per share.
See "PRICE RANGE OF COMMON STOCK AND DIVIDENDS."
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See "RISK FACTORS" for certain factors that should be considered by
prospective investors.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Price Underwriting Proceeds
to Discounts and to
Public Commissions(1) Company
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PER UNDERLYING SHARE-WARRANTS (2). . . . . . . . . $ 3.75 $ 0 $ 1,350,000
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PER UNDERLYING SHARE-SERIES A PREFERRED (2). . . . $ 4.44 $ 0 $ 1,990,000
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PER UNDERLYING SHARE-WARRANTS(2) . . . . . . . . . $ 2.94 $ 0 $ 36,500
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PER SHARE (3). . . . . . . . . . . . . . . . . . . $ --- $ --- $ ---
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TOTAL (4). . . . . . . . . . . . . . . . . . . . . $ --- $ --- $ 3,376,500
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(1) No underwriters will be involved in the exercise of Warrants or the
conversion of Series A Preferred, nor were any underwriters involved in the
issuance of the Warrants, the Outstanding Shares or the Series A Preferred.
A referral fee equal to 5% of the gross proceeds of the placement of the
Series A Preferred was paid by the Company to an unaffiliated referral
source. The Shareholders do not have any specific plan of distribution
with respect to the Outstanding Shares or Underlying Shares. The sale of
the Outstanding Shares and Underlying Shares may be made in the open market
through broker-dealers or in individual negotiated transactions.
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(2) The price per share for the Underlying Shares relating to the Warrants
reflects the exercise price of the Warrants. The price per share for the
Underlying Shares relating to the Series A Preferred reflects the maximum
average conversion price at which the Series A Preferred is convertible.
The conversion price may be less depending on the average bid price for the
Company's Common Stock on the public trading market for the five trading
days immediately preceding the conversion date. See "THE COMPANY -
Issuance of Convertible Preferred Stock - Conversion." The Company
received net proceeds of $1,990,000 from the issuance of the Series A
Preferred covered by this Prospectus.
(3) Those Shares which are not issued upon the conversion of outstanding Series
A Preferred may be issued from time to time at the prevailing market price
through the Underwriter. The price per Share and underwriting commission
are therefore undetermined at this time.
(4) The total proceeds to the Company will equal the aggregate exercise price
of 372,500 Warrants and the original issuance price of the Series A
Preferred and the Shares. The proceeds from the sale of the Shares is not
known at this time since (a) the number of Shares remaining after the
conversion of all outstanding Series A Preferred is not yet known, (b) the
market price at which the remaining Shares, if any, are sold through the
Underwriter is not yet known, and (c) the amount of underwriting discounts
and commissions on the sale of the Shares is not known at this time. See
"THE COMPANY - Issuance of Convertible Preferred Stock." The Shareholders
will receive all net proceeds from the sale of their respective Outstanding
Shares and Underlying Shares.
AVAILABLE INFORMATION
Incomnet, Inc. is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith file reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Copies of such reports, proxy
statements and other information can be obtained, upon payment of prescribed
fees, from the SEC at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. In addition, such reports, proxy statements and other
information can be inspected at the SEC's facilities referred to above and at
the SEC's Regional Office at 5670 Wilshire Boulevard, 11th Floor, Los Angeles,
California 90036-3648. The Company's Common Stock is reported on the National
Association of Securities Dealers Automated Quotation Small Capital System and
such reports, proxy statements and other information regarding Incomnet are
available for inspection and copying at 33 Whitehall, New York, New York 10004.
The Company has filed with the SEC a Registration Statement on Form S-3
(together with any amendments thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Underlying Shares. This Prospectus does not contain all the information set
forth in the Registration Statement. Such additional information may be obtained
from the SEC's principal office in Washington, D.C.
Statements contained in this Prospectus or in any document incorporated by
reference in this Prospectus as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC are incorporated in this
Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 filed on April 15, 1997, as amended by Form 10-KA
filed on May 23, 1997 (provided that the information referred to in Item
402(a)(8) of Regulation S-K shall not be deemed to be specifically
incorporated herein).
-2-
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997 filed on May 15, 1997.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996 filed on November 14, 1996.
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1995, filed on August 14, 1995.
(e) The Company's Current Report on Form 8-K filed on January 12, 1994 and
amended on February 14, 1994, July 22, 1994 and September 20, 1994, its Current
Report on Form 8-K filed on February 8, 1995, its Current Report on Form 8-K
filed on July 25, 1995, its Current Report on Form 8-K filed on August 18, 1995,
its Current Report on Form 8-K filed on November 15, 1995, its Current Report on
Form 8-K filed on November 30, 1995, its Current Report on Form 8-K filed on
February 9, 1996, its Current Report on Form 8-K filed on April 29, 1996, its
Current Report on Form 8-K filed on June 7, 1996, its Current Report on Form 8-K
filed on August 8, 1996, its Current Report on Form 8-K filed on January 28,
1997, its Current Report on Form 8-K filed on February 7, 1997, its Current
Report on Form 8-K filed on April 10, 1997, and its Current Report on Form
8-K filed on May 13, 1997.
(f) The Company's definitive Proxy Statement on Schedule 14A, dated July
29, 1996 and filed with the Securities and Exchange Commission on June 21, 1996.
(g) All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus.
Any statement contained in a document incorporated herein by reference will
be deemed to be modified or superseded for the purpose of this Prospectus to the
extent that a statement contained herein or in a subsequently filed document
modifies or supersedes such statement. Any such statement so modified or
superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are not presented
herein or delivered with this Prospectus. Such documents relating to the Company
are available without charge upon request made to Incomnet, Inc., 21031 Ventura
Boulevard, Suite 1100, Woodland Hills, California 91364 (telephone (818) 887-
3400), attention: Melvyn Reznick, President.
No person is authorized to give any information or to make any
representations other than as contained herein and, if given or made, such
information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer or solicitation by
anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such an offer or solicitation is not qualified to
do so or to any person to whom it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus nor any distribution of
securities made hereunder shall under any circumstances create an implication
that there has been no change in the affairs of the Company since the date
hereof or that the information herein is correct as of any time subsequent to
the date of this Prospectus.
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PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS APPEARING ELSEWHERE OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS.
THE COMPANY
Incomnet, Inc. (the "Company" or "Incomnet") and its two subsidiaries,
National Telephone Communications, Inc. ("NTC") and Rapid Cast, Inc. ("RCI"),
are engaged in three types of businesses: (i) interactive computer networking
products and services, (ii) discount long distance telephone communications
services to residential and commercial customers in the United States, and (iii)
the manufacture and marketing of the Fast Cast-TM- LenSystem that allows retail
optical stores and wholesale optical lens manufacturing laboratories to produce
single vision, flat-top bifocal and progressive multifocal lenses rapidly on
demand. NTC is a wholly-owned subsidiary of the Company and RCI is
approximately 35% owned by the Company.
Incomnet, Inc. was incorporated under the laws of the State of California
on January 31, 1974. The Company acquires and develops computer hardware and
software for interactive communications networks. It currently operates a
communications network under the tradename "AutoNETWORK" for several hundred
automobile dismantling companies in California, Colorado, Nevada, Arizona,
Oregon and Washington. The network permits the subscribers to share information
simultaneously and to communicate electronically on a real-time basis through
individual computer workstations linked by the Company's proprietary software,
central message switching computer and front-end network processor. The Company
is evaluating other business applications for its communications technology in
order to establish more subscriber-based communications networks. The Company's
principal executive office is located at 21031 Ventura Boulevard, Suite 1100,
Woodland Hills, California, 91364. Its telephone number is (818) 887-3400.
National Telephone Communications, Inc. was incorporated under the laws of
the State of Nevada on September 6, 1984. Since July 1989 NTC has operated as an
inter-exchange carrier and reseller of long distance telephone service,
providing nationwide long distance telephone access to its residential and
commercial customers. NTC purchases large blocks of time from long distance
national and regional telecommunications carriers at rates based upon high
volume usage. NTC resells the time to its customers at discounted
telecommunications retail rates. In general, NTC provides its customers with
rates that are 5% to 50% below the published retail rates of major national
carriers like AT&T and MCI with complete domestic and international coverage.
NTC's products include (i) fixed rate per minute services called Call$aver, (ii)
a prepaid calling card product, Sure$aver, which eliminates calling card
surcharges such as those imposed by AT&T, MCI and Sprint, (iii) a measured rate
Dial-1 service that is interconnected to local telephone companies throughout
the United States, and (iv) the Easy-1 service in which a single telephone bill
is provided to the customers for local and long distance telephone calls through
the local exchange carriers. NTC is licensed to provide telecommunication
services by the Public Utilities Commissions of numerous states. NTC markets its
services through referral marketing agents and affinity groups on a nationwide
basis. NTC's offices are located at 2801 North Main Street, Irvine, California,
92714. Its telephone number is (714) 251-8000.
Rapid Cast, Inc. was incorporated under the laws of the State of Delaware
February 12, 1994. RCI owns 100% of the issued and outstanding stock of Q2100,
Inc. ("Q2100"), which it acquired from Pearle, Inc. on February 8, 1995. The
Company acquired 51% of the issued and outstanding stock of RCI on February 8,
1995, as well. The Company's percentage ownership of RCI was reduced to
approximately 35% of its total issued and outstanding stock on January 16, 1997
when RCI issued 8,000,000 shares of 7% Convertible Preferred Stock in a private
placement to certain unaffiliated institutional investors. See "THE COMPANY -
Recent Capitalization of RCI." Q2100 owns certain
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domestic and foreign patents and patent applications relating to a new
technology, commonly known as Thick Film Radiation Cured Polymer Technology
(the "Technology"), which enables retail optical stores, small to mid-sized
wholesale optical lens manufacturing laboratories and other dispensers of
prescription ophthalmic lenses to produce lenses on site rapidly and at a
cost generally lower than if they were purchased from third party
manufacturers and distributors. RCI is currently manufacturing and marketing
this technology through the sale of casting machines and liquid monomer under
the name Rapid Cast or the Fast Cast Lensystem. RCI's principal executive
office is located at 1500 Hempstead Turnpike, East Meadow, New York 11554 and
its telephone number is (516) 465-7312. RCI also has executive offices and
an assembly facility located at 4415 Poplar Level Road, Louisville, Kentucky
40233, where its telephone number is (502) 458-5500.
THE OFFERING
Type of Security Registered. . . . Common Stock, no par value.
Number of Outstanding Shares . . . 43,826
Number of
Underlying Shares-Warrants . . . . 372,500
Minimum Number of
Underlying Shares-Series
A Preferred. . . . . . . . . . . . 467,385(1)
Number of Shares . . . . . . . . . 456,174
Selling Security Holders . . . . . The Outstanding Shares are held by three
investors who purchased shares of Series
A Preferred in September 1996 and
converted a portion of them on December
31, 1996 into 10,826 shares of Common
Stock, and certain affiliates of RCI who
purchased 33,000 shares of Common Stock
in a private placement in January 1997.
The Underlying Shares are issuable upon
the exercise of 372,500 Warrants held by
certain affiliates of RCI and other
private investors, and the conversion of
2,075 outstanding shares of Series A
Preferred issued by the Company in
October 1996. See "SELLING SECURITY
HOLDERS."
Terms of the Warrants. . . . . . . The Warrants include 360,000 Warrants
which entitle those Warrantholders to
purchase 360,000 shares of the Company's
Common Stock at an exercise price of
$3.75 per share, exercisable
until December 9, 1999, and 12,500
Warrants which entitle those
Warrantholders to purchase 12,500 shares
of the Company's Common Stock at a
purchase price of $2.94 per share,
exercisable at any time until December
16, 2001. See "SELLING SECURITY
HOLDERS."
(1) The number of Underlying Shares indicated assumes an average conversion
price of $4.44 per share, which is the maximum conversion price under
the terms and conditions of the Series A Preferred. Accordingly, the
Underlying Shares indicated are the minimum number of Underlying Shares
which will be issued by the Company upon the conversion of 2,075
Outstanding Shares of Series A Preferred. In the registration statement
encompassing this Prospectus, the Company has registered an additional
482,615 shares which, in combination with 606,174 shelf shares covered
by this Prospectus, will provide a pool of registered shares to issue
upon the conversion of outstanding Series A Preferred to the extent
that the average conversion price is less than $4.44 per share. See
"THE COMPANY - Issuance of Convertible Preferred Stock."
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Terms of the Series A Preferred. . The Series A Preferred entitles the
holders to convert their Preferred Stock
into the Company's Common Stock at any
time upon the earlier of (i) 60 days
from the effective date of the
registration statement covering the
Underlying Shares, or (ii) 90 days after
the date that the Series A Preferred is
issued. The conversion ratio is equal to
the lesser of (i) 80% of the average bid
price of the Company's Common Stock on
the public trading market on the five
trading days immediately preceding the
conversion date, divided by the original
purchase price of the Series A
Preferred, or (ii) the bid price of the
Company's Common Stock on the date that
the Series A Preferred is issued,
divided by the original purchase price
of the Series A Preferred. The
cumulative 2% per annum dividend is also
payable on the conversion date. The bid
price on the date of funding of the
Series A Preferred covered by this
Prospectus ranges from $4.00 to $4.75
per share. See "THE COMPANY - Issuance
of Convertible Preferred Stock."
Issuance of Shares . . . . . . . . The unissued Shares (not including the
Underlying Shares which are reserved for
issuance upon the exercise of Warrants
and the conversion of Series A
Preferred) are reserved for issuance
from time to time through the
Underwriter in open market transactions
in accordance with Rule 415, or upon the
conversion of Series A Preferred, if
necessary. The amount of net proceeds
to be received by the Company from the
sale of the Shares, if any, is not known
at this time because it depends on the
number of unissued Shares remaining
after the conversion of Series A
Preferred, the prevailing market price
of the Company's Common Stock on the
dates that it elects to sell the Shares,
if any, and the amount of the
Underwriter's discounts and commissions.
Shares of Common Stock to be
Outstanding After Issuance of
Shares, Conversion of Series
A Preferred and Exercise of
Warrants . . . . . . . . . . . . . 14,999,288(2)
Voting Rights. . . . . . . . . . . Each Share and Underlying Share of
Common Stock will have one vote per
share, if and when issued, and each
Outstanding Share has one vote. The
Warrants and Series A Preferred do not
have any voting rights associated with
them.
Use of Proceeds. . . . . . . . . . The Company would receive net proceeds
of $1,386,750 from the exercise of all
372,500
(2) The total number of shares of the Company's Common Stock to be
outstanding after the offering and conversion of the Series A Preferred
assumes an average conversion price of $4.44 per share, which is the
maximum average conversion price under the terms and conditions of the
Series A Preferred. If the average conversion price of the Series A
Preferred is less than $4.44 per share, then the number of shares
outstanding after the offering and the conversion of the Series A
Preferred would be higher. See "THE COMPANY - Issuance of Convertible
Preferred Stock."
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Warrants. The Company has received net
proceeds of $36,000 from the issuance of
the Warrants and $1,990,000 from the
issuance of the Series A Preferred
covered by this Prospectus. The amount
of net proceeds to be received by the
Company from the sale of the Shares, if
any, is not known at this time. The
Company will not receive any proceeds
from the sale of the Outstanding Shares
or the Underlying Shares. The Company
expects to use the net proceeds from the
exercise of the Warrants and sale of
Shares, if any, for general working
capital purposes. There is no assurance
that the Warrants will be exercised or
that any Shares will be sold by the
Company through the Underwriter. See
"USE OF PROCEEDS."
NASDAQ Symbol. . . . . . . . . . . ICNT
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SUMMARY CONSOLIDATED FINANCIAL DATA
INCOMNET, INC., NATIONAL TELEPHONE COMMUNICATIONS, INC. AND RAPID CAST, INC.
THREE MONTHS ENDED MARCH 31 YEAR ENDED DECEMBER 31
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1997 1996 1996 1995 1994 1993 1992
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STATEMENT OF
REVENUES
Revenues $31,169,000 $24,399,000 $106,905,000 $86,564,917 $46,815,057 $11,298,972 $5,534,874
Income (Loss) before
income taxes and
extraordinary items
and minority interest 1,019,000 31,309 (43,705,000) 856,543 4,000,242 (1,606,844) (2,264,597)
Income (Loss)
before extraordinary
items 1,019,000 417,574 (36,799,000) 1,366,025 3,999,187 (1,606,844) (2,461,697)
Net Income
(Loss) 1,010,000 417,574 (37,676,000) 1,366,025 4,071,194 948,769 (2,021,333)
PER COMMON SHARE DATA
Net Income (Loss) .07 .03 (2.82) .11 .42 (.12) (.28)
Cash Dividends 0 0 0 0 0 0 0
Book Value .72 3.24 .65 3.21 1.58 .48 .13
Number of Shares 13,268,050 13,294,024 13,369,681 13,262,648 10,482,854 8,183,877 7,189,671
BALANCE SHEET DATA
Total Assets 38,222,000 74,697,126 40,587,000 74,105,629 26,158,346 8,665,839 6,744,994
Long-Term
Debt 0 8,317,887(1) 1,040,000 8,459,772(1) 900 20,000 176,000
Shareholders'
Equity 9,772,000 43,113,102 8,626,000 42,548,056 16,535,153 3,929,148 1,047,125
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(1) Long term liabilities include approximately $8,459,772 of deferred tax
liability at December 31, 1995 and $8,317,887 of deferred tax liability at
March 31, 1996 arising from the nondeductibility of the RCI patent rights.
The deferred tax liability was eliminated when the RCI patent amortization
schedule was accelerated and the related intangible asset was written off
entirely.
-8-
RISK FACTORS
Prospective investors should consider carefully, in addition to the other
information contained in this Prospectus, the following factors before
purchasing the Shares, the Outstanding Shares or the Underlying Shares.
OVERVIEW - CAUTIONARY STATEMENTS
The following are cautionary statements made pursuant to the Private
Securities Litigation Reform Act of 1995 in order for the Company to avail
itself of the "safe harbor" provisions of the Reform Act. The discussions and
information in this Prospectus may contain both historical and forward-looking
statements. To the extent that the Prospectus contains forward-looking
statements regarding the financial condition, operating results, business
prospects or any other aspect of the Company and its subsidiaries, please be
advised that the Company's and its subsidiaries' actual financial condition,
operating results and business performance may differ materially from that
projected or estimated by the Company in forward-looking statements. The
differences may be caused by a variety of factors, including but not limited to
adverse economic conditions, intense competition, including intensification of
price competition and entry of new competitors and products, adverse federal,
state and local government regulation, inadequate capital, unexpected costs and
operating deficits, increases in general and administrative costs, lower sales
and revenues than forecast, loss of customers, disadvantageous currency exchange
rates, termination of contracts, loss of supplies, technological obsolescence of
the Company's products, price increases for supplies and components, inability
to raise prices, failure to obtain new customers, litigation and administrative
proceedings involving the Company, including the pending class action and
related lawsuits and SEC investigation, the possible acquisition of new
businesses that result in operating losses or that do not perform as
anticipated, resulting in unanticipated losses, the possible fluctuation and
volatility of the Company's operating results, financial condition and stock
price, losses incurred in litigating and settling cases, dilution in the
Company's ownership of its subsidiaries and businesses, adverse publicity and
news coverage, inability to carry out marketing and sales plans, challenges to
the Company's patents, loss or retirement of key executives, changes in interest
rates, inflationary factors, and other specific risks that may be alluded to in
this Prospectus or in other reports issued by the Company.
RISKS RELATING TO INCOMNET, INC. AND NTC
POSSIBLE DEFICIENCIES IN CARRIER SERVICE. The telecommunications business
is extremely competitive and its success depends upon several factors, including
high quality technology, effective marketing, accurate billing and responsive
customer service. As a "switchless" reseller of long distance telephone service
registered with the Federal Communications Commission and state public utility
commissions, the Company provides billing and customer service directly. The
Company is, however, dependent upon services provided to it and its customers by
telecommunications carriers. The Company has the right to provide long distance
telephone service to its customers through any telecommunications carriers that
it chooses. At present, the Company has contracts with several carriers. The
two main carriers which provide service to the Company are Wiltel, which handles
most calls in the mainland United States, and U.S. Sprint, which handles calls
from Hawaii to the United States. The Company is subject to the risk that its
carriers may not provide high quality telephone service to the Company's
customers, along with accurate, timely billing records of that service to the
Company.
RISK OF TERMINATION OF CARRIER SERVICE. The Company's newest contract with
Wiltel commenced on June 17, 1996 as an amendment to the contract entered into
on September 15, 1995 (service had been provided under a prior arrangement since
July 1992). The Wiltel Carrier Switched Services Agreement expires by its terms
on June 15, 2001. Wiltel may terminate its carrier agreement with the Company
or modify the charges upon 60 days prior written notice to the Company. The
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Company may not terminate the new Wiltel contract without a cancellation
charge (the cancellation charge would be 100% of the minimum purchase
requirement for the remaining term of the agreement) unless Wiltel increases
its rates under the agreement by an amount the effect of which would be to
cause total charges for the three months immediately preceding the rate
increase to be 5% greater than they were with the original discounts. The
Sprint contract commenced on April 7, 1993 and is terminable by either party
upon 30 days prior notice. The termination of the contracts with either of
these carriers or an increase in rates would have an adverse impact on the
Company's financial condition and operating results if the Company could not
replace either carrier with similar service at an equivalent price. The
Company could lose its carrier contracts for reasons beyond its control.
While the Company has the right to switch its customers to other carriers in
its discretion, there is no assurance that the Company could replace its
carrier contracts on substantially similar terms if its current contracts
were terminated or were not renewed upon their expiration. Should the Company
lose its contracts and not be able to replace them, it would have a
significant adverse impact on both the Company's telephone and marketing
related revenues because the Company would not be able to sign on new
customers. There is also no assurance that the Company will continue to have
the capital available and retain the qualified personnel that are required to
maintain a satisfactory level of services to its customers. See "THE
COMPANY" and "Item 1. Business" in the Company's 1996 Form 10-K.
MINIMUM PURCHASE REQUIREMENT. Pursuant to its new Carrier Service
Agreement with Wiltel, the Company is obligated to purchase a minimum amount of
telephone time on a "take-or-pay" basis. If the Company is not able to use the
minimum amount of telephone time under the new agreement, then it must pay to
Wiltel the difference between the actual usage and the minimum usage requirement
in cash. The Company could experience operating losses as the result of the
minimum purchase requirement in the new carrier contract. The Company currently
relies on purchases by an unaffiliated party under the Wiltel agreement (at no
profit to the Company) in order to meet the minimum purchase requirement. If
the unaffiliated co-purchaser ceases to purchase telephone time under the
agreement, the Company could experience significant operating losses. See "Item
1. Business - Contract with Wiltel" in the Company's 1996 Form 10-K."
SEC INVESTIGATION AND RELATED LAWSUITS. In August 1994, the Company was
notified by the Pacific regional office of the Securities and Exchange
Commission that the Commission had initiated a confidential investigation of
the Company. In September 1994 the Commission issued a formal order of
private investigation. The Commission stated in its correspondence to the
Company that the investigation "should not be construed as an adverse
reflection on any person, entity or security, or as an indication by the
Commission or its staff that any violation of law has occurred." In August
and September 1994, the Company supplied copies of its books and records to
the Commission, and the Company's present and prior independent certified
public accounting firms submitted their working papers pursuant to the
Commission's subpoena. In February 1995, the Company provided to the
Commission pursuant to its subpoena additional documents associated with
NTC's regulatory authorizations and with the Company's recent acquisition of
a controlling interest in RCI. The Company continues to fully cooperate with
the Commission. While the Company believes that the outcome of the fact
finding investigation will not have a material adverse effect on the
financial condition or operating results of the Company, no assurance can be
given on this matter until the investigation is concluded. See "Item 3. Legal
Proceedings - Securities and Exchange Commission Investigation" in the
Company's 1996 Form 10-K, as updated in the Company's Form 10-Q for the
quarter ended March 31, 1997 under "Item 1. Legal Proceedings - Securities and
Exchange Commission Investigation."
On January 20, 1995, a class action lawsuit was filed in the United
States District Court of the Central District of California against Incomnet,
Inc. and Sam D. Schwartz, known as SAUNDRA GAYLES VS. INCOMNET, INC AND SAM
D. SCHWARTZ, alleging violations of federal securities laws. In particular,
the suit alleges that the defendants violated Section 10(b) and Rule 10b-5 of
the Securities Exchange Act of 1934, as amended, by not disclosing in August
1994 that the Securities and Exchange Commission had
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initiated a confidential investigation of the Company. The suit also alleges
that the Company issued false and misleading press releases on January 17,
1995 and January 18, 1995. On October 17, 1995, the complaint was amended to
add claims that the Company and its former Chairman, Sam D. Schwartz,
violated federal and state securities laws because Mr. Schwartz did not
disclose purchases and sales of the Company's stock made in the open market
by him and his affiliates. Two additional civil lawsuits were filed in
federal district court in Georgia making similar claims and allegations, both
of which have been transferred to the same California court as the SAUNDRA
GAYLES case. On July 22, 1996, the Company was served with a complaint in
the lawsuit CHARLES STEVENS VS. SAM D. SCHWARTZ AND INCOMNET, INC., Civil
Action No. 96-4906 RMT (VAPx), filed in the United States District Court for
the Central District of California, Western Division. The complaint alleges
that the Company and its former Chairman, Sam D. Schwartz, violated Section
10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, as amended, and
Section 25400 of the California Corporations Code, as a result of false and
misleading statements made by defendants and undisclosed trading in the
Company's stock engaged in by Mr. Schwartz and his affiliates. The claims are
similar to those made in the pending class action lawsuit. The Company has
settled the two Georgia lawsuits and the STEVENS case. See "THE COMPANY -
Settlement of The Atlanta Lawsuits" and THE COMPANY-Settlement of the Stevens
Lawsuit." The Company is in settlement discussions with the plaintiffs in
the SAUNDRA GAYLES class action lawsuit, but there is no assurance that a
settlement agreement will be made. See "THE COMPANY - Proposed
Settlement of Class Action Lawsuit." In July 1996, the Company became aware
of a complaint in the lawsuit entitled SILVA RUN WORLDWIDE LIMITED VS.
INCOMNET, INC., SAM D. SCHWARTZ, BEAR STEARNS & CO., INC., LESLIE SOLMONSON,
RONALD F. SEALE, MARINER RESERVE FUND, COMPANIA DI INVESTIMENTO ANTILLIANO,
COUTTS & CO. AG, SALVATORE M. FRANZELLA, PETER G. EMBIRICOS, AND JOS SCHUETZ,
filed in the United States District Court for the Southern District of New
York. The complaint states that the plaintiff was a purchaser of the
Company's stock in July 1995. The complaint alleges that the Company and its
former Chairman violated Sections 10(b) and 20(a) and Rule 10b-5 of the
Securities Exchange Act of 1934, as amended, as a result of false and
misleading statements made by the defendants and undisclosed trading in the
Company's stock engaged in by Mr. Schwartz and his affiliate. The plaintiff
also alleges that Mr. Schwartz and his affiliate owed a fiduciary duty to the
plaintiff and breached it by their conduct, and that these defendants
committed common law fraud. The complaint also alleges other causes of
action against other unrelated defendants. The suits seek recision and
damages on behalf of the plaintiffs. The Company was served with the
complaint in the SILVA RUN lawsuit in October 1996. Litigation has been
threatened by other potential claimants, including by certain members of the
class in the SAUNDRA GAYLES class action lawsuit who have elected to leave the
class and file their own separate lawsuit. There is no assurance that these
pending and threatened lawsuits will not have a material adverse effect on
the Company and its financial condition and operating results. See "Item 3.
Legal Proceedings" in the Company's 1996 Form 10-K, as updated under "Item 1.
Legal Proceedings - Class Action and Related Lawsuits" in the Company's Form
10-Q for the quarter ended March 31, 1997.
RISKS INHERENT IN NETWORK MARKETING PROGRAMS. The Company sells its
telephone service through a network marketing program in which independent sales
representatives sign up both new independent sales representatives and
telecommunications customers. The independent sales representatives pay all
their own expenses and are treated by the Company as independent contractors.
New independent representatives purchase sales materials, training and limited
product inventories from the Company. As the representatives sign up new
representatives, who themselves also sign up new representatives, the initial
representative builds a "downline" of representatives that can reach through
multiple levels. The Company's marketing plan allows a representative to build a
network down to seven levels. Representatives do not receive commissions for
bringing in new representatives. Representatives only receive commissions,
overrides and bonuses based on bringing telephone customers and revenues to the
Company. While the development of a strong network marketing program can result
in a stable base of independent sales representatives who generate revenues from
signing up both new customers and new representatives, there are risks inherent
in network marketing. Because the representatives are structured in downlines,
there is a much higher risk associated with competitive programs designed to
attract the Company's existing base of representatives. If representatives
decide to leave the Company's
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program for a competitive program, there is a strong incentive for those
representatives to bring other representatives in their downlines to the new
program, all of whom will also try to move their telephone customers to the new
program. As the momentum of representatives switching to new programs builds,
the Company would experience a substantial loss of both representatives and
customers. As a result, a sales force based upon network marketing has the
inherent risk of eroding more rapidly than would otherwise occur if the Company
operated through a base of representatives who worked directly for the Company.
There are no assurances that the Company can keep its marketing plan competitive
against competitive plans. Consequently, there is a risk that the Company's
base of representatives and customers could decline in a manner that would have
a serious impact on the Company's revenues and earnings.
LOSS OF INDEPENDENT SALES REPRESENTATIVES. In February 1994, a group of
approximately ten independent sales representatives in Northern California left
the Company to market a competitive telephone service using a multi-level
marketing approach. These representatives attempted to recruit other
representatives and telephone customers away from the Company to their
competitive program. The Company believes that these representatives took
proprietary lists of the Company's representatives and customers with the
intention of soliciting them to join their program, which was in direct
violation of contracts that these representatives signed when they joined the
Company's marketing program. As a result, the Company has filed suit against the
representatives for damages of $500,000 for the loss of customers who were
obtained through the taking of proprietary lists from the Company. The Company
also sought and received a temporary restraining order against the
representatives from continuing to use the Company's proprietary materials to
solicit customers from the Company. The Company estimates that it has lost
under 100 representatives and under 1,000 customers as a result of actions by
the former marketing representatives. The Company's request for a permanent
injunction was denied by the court on the grounds that the Company had not
sustained enough continuing damages to warrant a permanent injunction. There
are no assurances that the losses will remain at the current level. The
defendants have filed a cross-complaint against NTC and the Company claiming
that NTC failed to meet its contractual obligations to the defendants, and that
the actions taken by the defendants were legal. The cross-complaint seeks
compensatory and special damages, along with general and punitive damages.
There is no assurance that the Company will prevail in its lawsuit to recover
damages or that it may not lose more representatives and customers in the
future, or that the defendants will not be successful with their cross-
complaint. See "Item 3. Legal Proceedings - Legal Action Against Prior
Representatives" in the Company's 1996 Form 10-K, as updated under "Item 1.
Legal Proceedings - Legal Action Against Prior Representatives" in the Company's
Form 10-Q for the quarter ended March 31, 1997.
RISKS OF BILLING THROUGH LOCAL EXCHANGE CARRIERS. NTC is offering a long
distance telephone service called Easy-1 pursuant to which customers receive a
single bill from their local telephone company for both local and long distance
telephone service (NTC offers only long distance service). As a result, the
local exchange carriers handle NTC's long distance billings and collections.
Theoretically, billing through the local exchange carrier is supposed to enhance
collection rates and lower NTC's billing costs, while offering a convenience for
customers. The local exchange carriers charge a fee for their billing and
collection services. There is no assurance that the cost savings and
collections from the services provided by local exchange carriers will justify
the charges being incurred by NTC for those services. The amount of cost
savings to NTC will depend on how successful and expeditious local exchange
carriers are in collecting for NTC. See "MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS."
CONTENTS OF PRIOR AUDIT REPORTS. The reports of the independent certified
public accountants with respect to the Company's financial statements for the
fiscal year ending December 31, 1995 include an "emphasis of the matter"
paragraph with respect to uncertainties related to the pending shareholders'
class action matter. The reports of the independent certified public
accountants with respect to the Company's financial statements for the fiscal
years ending December 31, 1992 and 1993 raised substantial
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doubts regarding the Company's ability to continue as going concerns because the
current liabilities of the Company exceeded current assets by a significant
margin. In addition, the scope of Grant Thornton's audit report with respect to
Incomnet for the fiscal year ending December 31, 1990 was limited to the extent
that it was not able to verify certain amounts with respect to Incomnet's
investment in Incomnet, India, Ltd. In 1991 Incomnet wrote-off its entire
investment in Incomnet India, Ltd.
POSSIBLE NEED FOR ADDITIONAL FINANCING - DILUTION OF OWNERSHIP IN
RCI. The Company may need additional capital in order to finance its
anticipated growth, especially the growth of its subsidiaries, NTC and RCI.
NTC is constructing a conference center in Honolulu, Hawaii for the
independent sales representatives to conduct marketing meetings and seminars.
Unforeseen events such as the unexpected loss of customers or expenditures
which were not budgeted could also require the Company to seek additional
capital. In 1996 and early 1997, the Company and certain of its affiliates
made substantial loans to RCI, most of which were repaid in January 1997, and
a portion of which were converted into RCI common stock. If RCI needs
additional financing and the Company does not have the funds available to
make its pro rata share of the advances, the Company's percentage ownership
in RCI could be significantly diluted. Furthermore, if RCI needs additional
financing or capital and cannot obtain it, its operations could be severely
hampered, resulting in a material adverse impact on the operating results and
financial condition of the Company. There is no assurance that the Company
or its subsidiaries can obtain additional capital or financing, if necessary,
or obtain it on acceptable terms. The shareholders of the Company may
experience substantial dilution in their ownership of the Company as a result
of financings or capitalizations done by the Company in order to obtain
necessary funding. See "RISK FACTORS - Adverse Effects of Issuance of
Preferred Stock." Furthermore, as a result of the issuance of convertible
preferred stock, warrants and stock options by RCI since the acquisition of a
controlling interest in it by the Company on February 8, 1995, partially to
raise capital, the Company's ownership interest in RCI has been reduced to
approximately 35% on a current basis and approximately 29% on a fully diluted
basis. Recent investors in RCI have an option to purchase more of RCI's 7%
convertible preferred stock, which would further dilute the Company's
ownership of RCI. See "THE COMPANY - Recent Capitalization of RCI."
NO ASSURANCE OF PROFITABILITY - RECENT LOSSES. In the past the Company
and its wholly owned subsidiary, NTC, have incurred substantial operating
losses and have only recently achieved profitability. RCI and its wholly
owned subsidiary, Q2100, have only recently emerged from the development
stage and have incurred substantial operating losses since their inception.
See "RISK FACTORS - Risks Relating to RCI - Recent Emergence From Development
Stage." There is no assurance that the Company's consolidated revenues will
continue to grow or be earned at current levels, or that the Company will be
profitable. For the fiscal year ending December 31, 1996 the Company had a
net loss of approximately $37,676,000 on a consolidated basis and NTC had a
net after tax income of approximately $2,895,000. As of December 31, 1996,
NTC had an accumulated shareholders' deficit of approximately $2,710,000 and
RCI had an accumulated shareholders' deficit of approximately $19,048,000.
There is no assurance that RCI will ever be profitable, or that NTC will
continue to be profitable. There is no assurance that the Company will not
incur operating deficits in the future. See "SELECTED CONSOLIDATED FINANCIAL
INFORMATION", "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS", and "Item 14. Financial Statements" in the
Company's 1996 Form 10-K, and the Company's Form 10-Q for the quarter ended
March 31, 1997.
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COMPETITION. The telephone and telecommunications industries are extremely
competitive, especially the provision of long distance telephone services. In
its long distance telephone business, the Company competes with several long
distance carriers such as AT&T, MCI, Sprint and others, which have substantially
greater financial, marketing and other resources than the Company. The Company
depends on independent marketing representatives in order to obtain customers
for its long distance telephone services. Several other network marketing firms
also utilize independent marketing representatives to sell long distance
telephone services, and may compete with the Company for marketing
representatives. Independent marketing representatives may leave the Company to
work for competitors from time to time, adversely affecting the Company's
business. The Company's network telecommunications business is also subject to
competition, and both business segments may experience competition from new
competitors in the future. Many of the Company's competitors have higher
national, regional and local recognition than the Company. There is no assurance
that the Company will be able to continue to successfully compete in the long
distance telephone or network telecommunications businesses. See "THE COMPANY"
and "Item 1. Business - Operations" in the Company's 1996 Form 10-K.
ADVERSE IMPACT OF GOVERNMENT REGULATION. The Company's businesses are
subject to government regulation in several respects which could cause
additional operating costs and which must be monitored for compliance. NTC,
the Company's wholly owned subsidiary, must comply with advertising and
disclosure rules relating to its sale of long distance telephone services to
the public. Its retail marketing program utilizing independent
representatives to recruit retail customers and additional representatives is
subject to state laws regulating network marketing programs. NTC must be
registered with the public utility commissions of most states in order to
provide telephone service in those states. While NTC's registrations are
effective in most of those states, it continues to operate through agency
contracts in certain states where its registrations are pending.
Furthermore, federal and state law prohibits the practice known as
"slamming," whereby telephone companies switch a customer's carrier without
the customer's permission. While NTC has an absolute policy prohibiting
slamming applicable to its independent sales representatives and employees,
NTC's sales representatives and employees may commit slamming in
contravention of NTC's policy. NTC is responsible for the conduct of its
independent sales representatives and employees, and could be penalized if
its marketing personnel are determined to have committed "slamming," even in
light of NTC's stated policy and its efforts to enforce it. In June 1997 NTC
voluntarily approached the California Public Utility Commission with possible
"slamming" incidents by its independent marketing personnel, and the fact
that NTC will immediately terminate any person who is found to have committed
slamming. NTC is fully cooperating with the Public Utilities Commission.
Nevertheless, there is no assurance that NTC will not be penalized by the
Public Utilities Commission for possible "slamming" practices by its
independent marketing representatives, and that such penalty, whether in the
form of a fine or a suspension of its right to conduct business, will not
have a material adverse impact on the Company's and NTC's financial
condition, operating results and business performance.
NO DIVIDENDS ON COMMON STOCK. The Company has not paid dividends on its
Common Stock in the past and does not anticipate the payment of any cash
dividends in the near future. The payment of cash dividends on the Common Stock
is restricted pursuant to the terms and conditions of the outstanding Series A
Preferred. See "THE COMPANY - Issuance of Convertible Preferred Stock" and
"PRICE RANGE OF COMMON STOCK AND DIVIDENDS."
CONTROL BY THE PRINCIPAL STOCKHOLDERS. The principal stockholders own in
the aggregate approximately 8.4% of the combined voting power of the Company's
Common Stock, not including those shares owned by its prior Chairman and
President, Sam D. Schwartz (who owns approximately 6.6% of the outstanding
shares). Accordingly, the principal stockholders are able to exercise
significant control of the vote on matters submitted to a vote of the Company's
stockholders. Such control by the principal stockholders may have the effect of
discouraging certain types of transactions involving an actual or potential
change of control of the Company, including transactions in which the holders of
Common Stock might otherwise receive a premium for their shares over then
current market prices. See "PRINCIPAL STOCKHOLDERS."
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RISKS RELATING TO RCI
RECENT EMERGENCE FROM DEVELOPMENT STAGE. RCI recently emerged from its
development stage. RCI was incorporated in February 1994 and did not
commence marketing its products until after a controlling interest in it was
acquired by the Company on February 8, 1995. RCI has a limited operating
history and only began shipping its products in April 1995. RCI and Q2100
have incurred substantial operating losses since their inception. As of
December 31, 1996, they had a consolidated shareholders' deficiency
accumulated during their development stage of $19,048,000. The likelihood of
RCI's success must be considered in light of the foregoing facts, together
with the expenses, difficulties, uncertainties and delays frequently
encountered in connection with the early phases of a new business.
Unanticipated difficulties relating to marketing, manufacturing or
competition, for instance, could materially adversely affect RCI's ability to
achieve its business objectives. Certain of RCI's customers have experienced
technical and mechanical difficulties with the casting machines. RCI has had
to make service calls on those machines and is making design modifications to
its equipment and components. There is no assurance that design
modifications will solve problems that have arisen and that may arise in the
future. Furthermore, there is no assurance that RCI will not experience a
high number of returns which would adversely affect the operating results,
financial condition and business performance of RCI and the Company. See
"Item 1. Business - Rapid Cast, Inc" in the Company's 1996 Form 10-K.
RISK OF UNCERTAIN MARKET ACCEPTANCE; COST OF LENSYSTEM. RCI's success
depends substantially upon the acceptance of the LenSystem as an alternative to
traditional methods of purchasing and fabricating eyeglass lenses. Factors that
may adversely affect market acceptance include potential customers'
unfamiliarity with the Company's relatively new technology, lens making
processes, products, lens designs and materials, their reluctance to change
current methods of purchasing and fabricating lenses, and the initial capital
investment in purchasing the LenSystem. Furthermore, potential customers may be
reluctant to purchase the LenSystem because it cannot currently manufacture all
possible prescriptions and lens types. In addition, lens dispensers can obtain
single vision lenses (approximately 50% of the lens type dispensed) at prices
competitive with or lower than the cost of producing such lenses utilizing the
LenSystem. After LenSystems are purchased, there can be no assurance that
customers will continue to use their LenSystem to fabricate lenses.
Consequently, there can be no assurance that customers will accept RCI's
products as an alternative to traditional methods of purchasing and fabricating
optical lenses. Moreover, market acceptance of the LenSystem will depend, in
large part, upon its pricing (of both the LenSystem and the Rapid Cast Liquid
Monomer) and RCI's ability to demonstrate the advantages of the LenSystem over
competing products, technologies, and current distribution channels. See "Item
1. Business - Rapid Cast, Inc." in the Company's 1996 Form 10-K.
OPERATING LOSSES; NEED FOR ADDITIONAL FINANCING; UNCERTAINTY OF ADDITIONAL
FINANCING. RCI's operations to date have consumed substantial amounts of
capital, and RCI expects its capital and operating expenditures to increase in
the next few years. Such operating expenses are currently, and may continue to,
exceed RCI's revenues. RCI has not been profitable since its inception. While
RCI recently received a substantial capital investment from a group of private
institutional investors, these investors are not obligated to invest additional
capital in RCI and there is no assurance that the capital invested to date will
be adequate for RCI's needs. See "THE COMPANY - Recent Capitalization of RCI."
There is no assurance that RCI will be able to obtain additional financing or
capital from any other source. RCI's need for additional financing will depend
upon numerous factors, including, but not limited to, the extent that and
duration of RCI's future operating losses, the level and timing of future
revenues and expenditures, market acceptance of new products, the results of
ongoing research and development projects, competing technologies, market
developments, and the ability of RCI to maintain and develop additional
collaborative arrangements and international distribution agreements. To the
extent that existing resources are insufficient to fund RCI's activities, RCI
may seek to raise additional funds through public or private financings. There
can be no assurances that additional financing will be available or, if
available, that it will be available on acceptable terms. If additional funds
are raised by issuing equity securities, further dilution to the existing
stockholders may result. If adequate funds are not available, RCI's results of
operation may be adversely affected. See "Item 1. Business - Rapid Cast, Inc."
in the Company's 1996 Form 10-K.
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COMPETITION. The vision care industry is subject to intense competition
from a variety of sources. RCI competes with conventional channels of
distribution, including lens manufacturers and wholesale lens laboratories and,
to a lesser extent, with manufacturers of point of sale lens fabrication
systems, manufacturers of contact lenses and providers of equipment related to
medical treatments to correct refractive disorders. Many of RCI's competitors
have significantly greater financial, technological, marketing and other
resources than RCI, which could enable such competitors to develop new processes
or products that could render RCI's products obsolete or less competitive. In
addition, many of RCI's competitors have significantly greater experience than
RCI in developing new lenses, lens materials and fabrication technologies, and
there can be no assurance that RCI will be able to compete effectively with such
competitors. The effects of such competition could have a material adverse
effect on RCI's financial condition and results of operations.
RAPID TECHNOLOGICAL CHANGE. The potential market for the LenSystem is one
characterized by rapidly changing technology, and many of RCI's competitors have
substantially greater resources for the research and development of new
technologies than RCI will have for such purposes. There can be no assurance
that technologies or medical advances, including, without limitation, laser
vision correction, Radial Keratotomy (RK) and new ophthalmic drugs which could
obviate the need for prescription lenses, will not render the LenSystem
uncompetitive or obsolete. RCI's ability to anticipate changes in technology,
and then to improve the Technology or development or acquire new technologies in
response to such changes, will therefore be a critical factor affecting RCI's
ability to grow and become profitable. There accordingly can be no assurance
that the Technology will not be subject to the development or widespread
acceptance of any new processes or products that cause the Technology to become
noncompetitive, incompatible, or result in early product obsolescence, or that
RCI's business will not be materially adversely affected as a result.
Substantial research and development is being conducted by competitors and
others with respect to lens fabrication systems that could enable eyewear
dispensers to fabricate plastic eyeglass lenses at the point of sale. RCI
believes that this research and development will continue and may intensify and
accelerate. The development or widespread acceptance of any new process or
products, including new lens shapes, sizes, coatings and materials that cause
RCI's products to become obsolete, noncompetitive or incompatible, would have a
material adverse effect on RCI's financial condition and results of operations.
THE OPTICAL MARKETPLACE. RCI's success will depend, in significant part,
on its ability to anticipate trends and changes in the optical marketplace and
to develop or acquire technology capable of satisfying the demands of the
marketplace in connection with such trends and changes. Among the factors RCI
must be aware of are fashion, lens material, lens coatings and treatments. Some
or all of the changes required to be made in response to these factors may not
be adaptable to an onsite lens manufacturing environment and could have a
material adverse effect on RCI's financial condition and results of operations.
PATENTS AND PROPRIETARY RIGHTS. In February 1995, RCI acquired all of the
capital stock of Q2100 and thus all of Q2100's issued patents and patent
applications that relate to the Technology. As of the date of this Prospectus,
five United States patents have issued, eight United States patent applications
are pending, and over 20 foreign applications are pending. RCI's success
depends, in significant part, on its ability to obtain patent protection for its
products, both in the United States and in other countries, to preserve its
intellectual property rights and to operate without infringing on the rights of
third parties. There can be no assurances that RCI will be able to protect its
intellectual property rights adequately, that competitors will not be able to
develop similar technology independently, that the claims allowed on any patents
held by RCI will be sufficiently broad to protect RCI's technology or that RCI's
patents will provide a significant competitive advantage for its products.
Moreover, RCI believes that obtaining foreign patents may be more difficult than
obtaining domestic patents because of differences in patent laws. In addition,
the protection provided by foreign patents, once they are obtained, may be
weaker than the protection provided by United States patents. The failure by
RCI to
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protect adequately its intellectual property rights could have a material
adverse effect on RCI's financial condition and results of operations. RCI
has been the subject certain legal disputes involving the intellectual
property rights of others. See "Item 3. Legal Proceedings - Patent
Infringement Lawsuit" in the Company's 1996 Form 10-K. The patent
infringement suit entitled RONALD BLUM O.D. VS. RAPID CAST, INC., ET AL. has
been settled. See "THE COMPANY - Settlement of Patent Infringement Lawsuit
by RCI." Any litigation in the future to enforce patents issued to RCI, to
protect trade secrets or know-how possessed by RCI or to defend RCI against
claimed infringement of the rights of others would be time-consuming and
costly, and could have a material adverse effect on RCI's financial condition
and results of operations. Additionally, the manufacture and sale of
products that RCI develops or markets may involve the use of processes,
products or information, the rights to which may be held by others. There can
be no assurance that RCI will be able, for financial reasons or otherwise, to
obtain ownership or license rights with regard to the use of such processes,
products or information or, if obtained, that the use of such rights will be
on terms favorable to RCI. Failure to obtain such rights, if any, could have
a material adverse effect upon the financial condition and results of
operations of RCI. RCI also relies, and will continue to rely, on trade
secrets and proprietary know-how which it seeks to protect, in part, by
secrecy agreements with its employees, consultants, licensees, potential
strategic partners and others. There can be no assurance that any such
agreements will not be breached, that RCI would have adequate remedies for
any such breach, or that RCI's trade secrets are not already known to, or
will not otherwise become known to, or be independently developed by, RCI's
competitors. To the extent that consultants, licensees or other third
parties (such as prospective joint venture partners or subcontractors engaged
to manufacture the LenSystem) participate in RCI's projects, technological
information independently developed by them or by others may be the subject
of disputes as to the proprietary rights to such information, which disputes
may not be resolved in favor of RCI. The LenSystem uses as its raw material
the Rapid Cast Liquid Monomer, which is injected into a lens mold and then
cured (i.e., hardened) into a finished lens. The Rapid Cast Liquid Monomer is
a proprietary trade secret which is not protected by any issued patents nor
the subject of any patent applications. RCI does not currently intend to
seek patent protection for the Rapid Cast Liquid Monomer. See "Item 1.
Business - Rapid Cast, Inc. - Technical Overview of the Rapid Cast LenSystem"
in the Company's 1996 Form 10-K.
MANUFACTURING UNCERTAINTIES. RCI currently does not have the facilities to
manufacture the LenSystem's equipment components and raw materials (i.e., the
Rapid Cast Liquid Monomer) and has no plans to develop its own manufacturing
capabilities. RCI engages subcontractors and licensees to produce such
components and raw materials. RCI is at present substantially dependent upon
four suppliers from which it purchases different components and the Rapid Cast
Liquid Monomer. RCI believes that it could take in excess of six months to
secure alternatives for its suppliers in the event of the loss of RCI's current
suppliers. The glass molds utilized by the LenSystem to produce a specific
progressive multifocal design are available from only one supplier. Alternative
suppliers for those glass molds or any other component of the LenSystem may not
be available. RCI has certain of its components and tooling manufactured abroad
and may have additional components provided by foreign suppliers in the future.
The loss of a supplier for any material or component used by RCI or the
inability of a supplier to fulfill RCI's requirements might cause significant
delays in deliveries and the incurrence of additional costs. Such delays or
increased costs could have a material adverse effect on RCI's financial
condition and results of operations.
MARKETING UNCERTAINTIES, DOMESTIC. RCI's marketing efforts in the United
States have relied primarily on trade journals, trade shows and conventions to
present its products to the marketplace. RCI has not expended significant funds
on direct or other marketing campaigns and has a dedicated sales and marketing
staff of four persons. There can be no assurance that the implementation of
RCI's future marketing plans will be effective or that RCI will not be required
to expend more than it currently anticipates in order to market its products.
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MARKETING UNCERTAINTIES; INTERNATIONAL. RCI generally markets its
LenSystem internationally through exclusive local distributors and has entered
into several exclusive distribution agreements worldwide. There can be no
assurance that the purchase commitments and other obligations contained in these
agreements will be honored. Nor can there be any assurance that suitable
distributors for other countries to which RCI is not currently distributing will
be found. Laws and regulations imposed by foreign countries may also adversely
affect the marketing or commercial viability of the LenSystem and the Rapid Cast
Liquid Monomer. Additionally, significant fluctuations in the value of the
United States dollar could adversely affect future demand for the LenSystem in
foreign countries.
PRODUCT LIABILITY CLAIMS AND UNINSURED RISKS. The manufacturing, marketing
and sale of prescription ophthalmic lenses entail the inherent risk of exposure
to product liability claims. These claims might be made by, among others,
consumers who purchase lenses manufactured by, or businesses that utilize, the
Lensystem. Currently, RCI maintains product liability insurance which provides
coverage of $6,000,000 per occurrence and $7,000,000 in the aggregate. There
can be no assurance that RCI will be able to maintain such insurance at
commercially reasonable rates, if at all, or that the coverage provided thereby
is sufficient to fully protect RCI against liability. RCI's inability or
failure to protect itself adequately against such liabilities could have a
material adverse effect upon its prospects, financial condition and results of
operations.
EQUIPMENT INSTALLATION AND SERVICE. RCI does not presently have any
contracts or arrangements with qualified companies to install and service the
LenSystem, currently relying on its staff of installers and technicians.
Furthermore, equipment malfunctions have caused and may in the future cause RCI
to incur unanticipated operating expenses that may not be covered by component
manufacturers' warranties. See "RISK FACTORS - Risks Relating to RCI - Recent
Emergence From Development Stage."
DEPENDENCE UPON KEY PERSONNEL. The success of RCI will be largely
dependent upon the continuing services and efforts of certain of its directors
and executive officers. The loss of the services of Frank Pipp, John Vidovich,
Jeffrey Rubin, Galen Powers or Dr. Omar Buazza could have a material adverse
effect upon RCI's ability to achieve its business objectives. RCI has entered
into employment agreements with certain of its officers, including Jeffrey
Rubin, Dr. Omar Buazza, Galen Powers, Steve Luetke and Thomas Freedman. RCI may
enter into employment agreements with some of its other existing officers. RCI
expects that its ability to achieve its business objectives will also depend in
large part upon its ability to attract and retain highly qualified management
personnel in the future, including sales, marketing and scientific staff. There
can be no assurance that RCI will be able to attract and retain personnel with
the requisite skills and experience necessary to successfully manage RCI's
business and operations.
REGULATORY CONSIDERATIONS. The lenses produced by the LenSystem are
regarded by the United States Food and Drug Administration (the "FDA") as
medical "devices" within the meaning of the Federal Food, Drug, and Cosmetic Act
(the "Food and Drug Act"), but the lenses may be marketed without pre-market
notification, review, approval or clearance by the FDA. Other requirements,
principally those concerning impact resistance, current good manufacturing
practices, labeling and reporting of certain allegedly device-related adverse
effects will apply. RCI believes that the LenSystem, as manufacturing
equipment, is itself not a "medical device" under the Food and Drug Act. If the
LenSystem is itself a medical device, RCI believes that LenSystem may be
marketed without premarket notification, review, approval, or clearance by the
FDA, although other requirements, principally those concerning current good
manufacturing practices, labeling, and reporting of certain allegedly device-
related adverse affects, and of device malfunctions in certain circumstances,
would apply. In any event, certain state and local government authorities (such
as the State of California) also regulate medical device manufacturers.
Depending upon where LenSystem equipment is manufactured, RCI may be subject to
such additional state regulations. Although there can be no assurance in this
regard, RCI does not anticipate that compliance with such governmental
regulation will have an adverse effect upon its
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business. Failure to comply with FDA, and in some cases, the state
requirements, could result in civil sanctions, e.g., product seizure, injunction
versus product manufacturing or distribution, or criminal prosecution and
conviction. In addition, certain legal impediments and foreign regulatory
restrictions may affect the sale and exportation of the LenSystem to countries
other than the United States.
PAYMENT OF ACQUISITION PRICE OF RCI. The Company issued 600,000 shares of
restricted Common Stock to the founding shareholders of RCI to complete the
payment of the purchase price of 51% of RCI in lieu of issuing up to 750,000
shares of performance based stock. RCI's financial performance during the
twelve month period ending March 31, 1996 indicates that the founding
shareholders of RCI would not have been issued any additional shares of the
Company's common stock under the original stock purchase agreement. See "Item
1. Business -Acquisition of Rapid Cast, Inc." in the Company's 1996 Form 10-K.
NO ANTICIPATED DIVIDENDS. Since inception, RCI has not declared or paid
any cash dividends on its common stock and does not anticipate paying any cash
or other dividends on its common stock in the foreseeable future. The
declaration and payment of any cash dividends in the future will be determined
solely by the Board of Directors of RCI (which will, for the foreseeable future,
be elected by RCI's current stockholders, including the Company).
AUTHORIZATION AND ISSUANCE OF ADDITIONAL SECURITIES. RCI's Certificate of
Incorporation authorizes the issuance of up to 30,000,000 shares of common stock
and 5,000,000 shares of preferred stock. RCI's Board of Directors has the power
to issue any and all of such shares without stockholder approval. RCI may issue
a substantial number of additional shares in the future including additional
shares of convertible preferred stock to existing investors, not including the
Company, who have an option to purchase more shares of RCI's preferred stock.
See "THE COMPANY - Recent Capitalization of RCI.". Furthermore, there are
outstanding a substantial number of warrants and options to purchase a
substantial number of additional shares of the common stock of RCI, the exercise
of which would result in a significant dilution of the Company's ownership in
RCI. To the extent that additional shares of common or preferred stock are
issued, dilution of the interests of RCI's stockholders, including the Company,
will occur.
OPTION PLAN. Pursuant to its stock option plan, RCI may grant options to
purchase up to 4,514,732 shares of its common stock to directors, officers and
employees of, and consultants to, RCI. RCI has issued options to purchase
3,260,000 shares of common stock under the option plan. During the respective
exercise periods of the above-mentioned options, the holders thereof are given
an opportunity to profit from a rise in the market price of the common stock (if
RCI's stock becomes publicly traded), with a resultant dilution of the interests
of the then existing stockholders. As a result, the terms upon which RCI may
obtain additional equity financing during such periods could be adversely
affected. These holders may be expected to exercise their rights to acquire
common stock at a time when RCI would, in all likelihood, be able to obtain
needed capital through a new offering of securities on terms more favorable than
those provided by these options. See "THE COMPANY - Recent Capitalization of
RCI."
GENERAL RISKS
BUSINESS DEPENDENT ON KEY PERSONNEL. The Company's
business is partially dependent upon the performance of certain key
individuals, including its President and Chief Executive Officer, certain
executives of its wholly-owned subsidiary, NTC, and certain executives of its
minority owned subsidiary, RCI. The Company has entered into an employment
agreement (expiring on June 30, 2002) with Melvyn Reznick, its President and
Chief Executive Officer, and an employment agreement expiring on December 31,
1999 with Stephen A. Caswell, its Secretary and Vice-President. NTC has
entered into three year employment agreements with Edward R. Jacobs, the
Chief Executive Officer of NTC (i.e. expiring on July 25, 1997), and James R.
Quandt, a new President of NTC (i.e. expiring January 6, 2000). RCI has
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entered into employment agreements with several of its executives. The Company
and its subsidiaries do not anticipate a termination of their employment
relationships with any of their key executives. RCI does not yet have a
permanent Chief Executive Officer and is utilizing the services of an
independent consultant and its newly appointed Chairman of the Board to fill
that role until a permanent Chief Executive Officer is hired. While the
independent consultant to RCI is currently its acting Chief Executive Officer,
there is no assurance that RCI will be able to hire a permanent Chief Executive
Officer, or that the absence of a permanent Chief Executive Officer will not
have a material adverse effect on RCI's financial condition or results of
operation. Furthermore, the loss of one or more key executives of the Company,
NTC or RCI could have an adverse impact on the Company's and its subsidiaries'
business. See "Item 1. Business - Employees" in the Company's 1996 Form 10-K.
DILUTION CAUSED BY FUTURE SALES OF SHARES. As of June 30, 1997, the
Company has approximately 3,707,200 shares of Common Stock (not including the
Shares, the Underlying Shares or outstanding shares of Series A Preferred Stock
in addition to the ones covered by this Prospectus) issued and outstanding which
may be deemed "restricted securities" as that term is defined under Rule 144 of
the Securities Act of 1933, as amended (the "Securities Act"). The restricted
securities may be sold in the future in compliance with Rule 144 or Regulation S
of the Securities Act. Ordinarily, under Rule 144 a person who is an affiliate
of the Company (as that term is defined in Rule 144) and has beneficially owned
restricted securities for a period of two years may, every three months, sell in
brokerage transactions an amount that does not exceed the greater of (i) 1% of
the outstanding class of such securities or (ii) the average weekly trading
volume in such securities on all national exchanges or reported through the
automated quotation system of a registered securities association during the
four weeks prior to the filing of a notice of sale by a securities holder. A
person who is not an affiliate of the Company who beneficially owns restricted
securities is also subject to the foregoing volume limitations but may, after
the expiration of three years, sell unlimited amounts of such securities under
certain circumstances. Pursuant to Regulation S, foreign shareholders may
resell their shares without restriction after the expiration of 40 days from the
date of the sale of the stock to them. The Company can make no prediction as
to the effect, if any, that sales of shares of Common Stock, or the availability
of shares for future sale, will have on the market price of the Common Stock
prevailing from time to time. Sales of substantial amounts of Common Stock
(including the Shares and the Underlying Shares) in the public market, or the
perception that such sales could occur, could depress prevailing market prices
for the Company's Common Stock. Such sales may also make it more difficult for
the Company to sell equity securities or equity-related securities in the future
at a time and price which it deems appropriate.
DILUTION CAUSED BY FUTURE ISSUANCES OF STOCK BY THE COMPANY. The
Company's Certificate of Incorporation, as amended, authorizes the issuance
of 20,000,000 shares of Common Stock and 100,000 shares of preferred stock.
The Company currently has approximately 13,553,229 shares of Common Stock
outstanding and 2,075 shares of the Series A Preferred Stock outstanding.
Assuming the issuance of all of the Shares covered by this Prospectus and the
issuance of the number of Underlying Shares based on the exercise of all
Warrants and the conversion of Series A Preferred at the maximum average
conversion price of $4.44 per share, the Company would have 14,999,288 shares
of its Common Stock outstanding, not including shares issuable upon the
exercise of other outstanding options and warrants. The remaining shares of
Common Stock not issued or reserved for specific purposes may be issued
without any action or approval of the Company's stockholders. Although there
are no present plans, agreements or undertakings involving the issuance of
such shares, except as disclosed in this Prospectus, any such issuance could
be used as a method of discouraging, delaying or preventing a change in
control of the Company or could dilute the public ownership of the Company.
There can be no assurance that the Company will not undertake to issue such
shares if it deems it appropriate to do so. See "DESCRIPTION OF CAPITAL
STOCK."
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POSSIBLE ADVERSE EFFECTS OF ISSUANCE OF PREFERRED STOCK. The Company's
Certificate of Incorporation, as amended, authorizes the issuance of a maximum
of 100,000 shares of Preferred Stock on terms that may be established by the
Company's Board of Directors without further stockholder action. In September
and October 1996 the Company issued $2,440,000 of Series A 2% Convertible
Preferred Stock which is convertible into the Company's Common Stock based on a
price equal to the lesser of the bid price of the Company's Common Stock on the
date of funding (i.e. ranging from $4.125 to $4.75 per share), or 80% of the
average bid price during the five trading days immediately preceding the date of
the conversion. Consequently, the Common Stockholders will experience dilution
from the conversion of the Preferred Stock. The dilution will be greater to the
extent that the bid price of the Company's Common Stock is lower at the time of
conversion, since more shares of Common Stock will be issued for each share of
outstanding Series A Preferred. Furthermore, while the Preferred Stock remains
outstanding, the Company is subject to certain restrictive covenants. See "THE
COMPANY - Issuance of Convertible Preferred Stock." The terms of any other
series of Preferred Stock, which may include priority claims to assets and
dividends and special voting rights, could also adversely affect the rights of
holders of the Common Stock. To date, no Preferred Stock other than the Series A
2% Convertible Preferred Stock has been issued by the Company, although the
Company may issue more Series A 2% Convertible Preferred Stock in the future.
The issuance of Preferred Stock could make the possible takeover of the Company
or the removal of the Company's management more difficult, or otherwise dilute
the rights of holders of Common Stock and the market price of the Common Stock.
See "DESCRIPTION OF CAPITAL STOCK - Preferred Stock."
THE COMPANY
GENERAL
The Company, its wholly-owned subsidiary, NTC, and its minority owned
subsidiary, RCI, are engaged in three businesses: (i) interactive communications
networking services by the Company, (ii) the provision of long distance
telephone services by NTC, and (iii) the manufacture and marketing of the Fast
CastTM Lensystem that allows retail optical stores and wholesale optical lens
manufacturing laboratories to produce single vision, flat-top bifocal and
progressive bifocal and multifocal lenses rapidly on demand.
The Company provides interactive communications networking services using
its proprietary communications software, a central message switching computer
and front-end network processor. All subscribers to Incomnet's communications
network can simultaneously access the information on the system, can communicate
on the system on a real-time basis and can leave electronic messages. The
technology is particularly well suited to networks of buyers and sellers because
requests for quotes can be broadcast to all participants simultaneously, while
responses and subsequent negotiations associated with the quote can be done
privately.
The Company's major network is the Auto Dismantler Network, known under the
tradename "AutoNETWORK," which currently links several hundred licensed
automobile dismantlers in California, Colorado, Nevada, Arizona, Oregon and
Washington. AutoNETWORK is a monthly subscription service that automobile
dismantlers utilize to buy, sell and trade used parts that have been salvaged
from automobiles damaged in traffic collisions. The Company continually
evaluates other applications for its telecommunications networking technology,
including other industries where electronic broadcast and point-to-point
communications would add value to the conduct of their business. See "Item 1.
Business - AutoNETWORK" and "Item 1. Business - Network Services" in the
Company's 1996 Form 10-K.
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The Company was incorporated under the laws of the State of California in
1974. Its principal place of business is located at 21031 Ventura Boulevard,
Suite 1100, Woodland Hills, California 91364. Its telephone number is (818) 887-
3400. Additional information about the Company is included in documents
incorporated by reference in this Prospectus. See "AVAILABLE INFORMATION" and
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
The Company's wholly owned subsidiary, NTC, is an inter-exchange carrier
and reseller of long distance telephone services and provides nationwide long
distance telephone access to commercial and residential customers across the
United States. Customers of NTC purchase and pay for specific amounts of time
either through direct billing from NTC, billing from the customer's local
telephone company, or by prepaying for the use of NTC calling cards. NTC's
primary products are its Call $aver Calling Card, its Sure $aver Calling Card,
its Dial-1 Telephone Service and its Easy-1 Telephone Service. In order to
provide these NTC services, NTC purchases large amounts of long distance time
from national and regional carriers at rates based upon high volume usage. NTC
then resells this time to customers at discounted retail rates. Its calling
cards also eliminate the calling card surcharges generally imposed by AT&T, MCI
and Sprint. NTC utilizes a multi-level marketing network of independent sales
representatives to market its long distance telephone services to retail
customers. NTC was incorporated under the laws of the State of Nevada on
September 6, 1984. Its principal offices are located at 2801 North Main Street,
Irvine, California 92714 and its telephone number is (714) 251-8000. See "Item
1. Business - Acquisition of National Telephone Communications, Inc. -
Operations." See also "AVAILABLE INFORMATION" and "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE."
The Company's minority owned subsidiary, RCI, manufactures and markets the
Fast Cast-TM- LenSystem that allows retail optical stores and wholesale optical
lens manufacturing laboratories to produce single vision, flat-top bifocal and
progressive bifocal lenses on demand, and in minutes. The Fast Cast-TM-
LenSystem uses a series of high-accuracy prescription glass molds that are
filled with a proprietary liquid monomer (plastic). When exposed to ultraviolet
light within the system's curing chamber, the monomer undergoes a chemical
reaction that rapidly "cures" or hardens the lens in 15 minutes. RCI commenced
assembling and marketing the Rapid Cast equipment, molds and liquid monomer for
the Fast Cast-TM- LenSystem in February 1995, when it acquired 100% of the
outstanding stock of Q2100, Inc. from Pearle, Inc., and when the Company
acquired its ownership interest in RCI. See "Item 1. Business - Acquisition of
Rapid Cast, Inc." and "Item 1. Business - Rapid Cast, Inc." in the Company's
1996 Form 10-K.
APPOINTMENT OF NEW DIRECTOR BY THE COMPANY
On January 20, 1997, the Company's Board of Directors appointed Dr. Howard
Silverman to fill a vacancy and become a member of the Board of Directors.
Since March 1996, Dr. Silverman has been consulting for various companies in the
optical and financial areas, including Andrew, Alexander, Wise & Company in New
York, and Rapid Cast, Inc. From August 1995 to March 1996, Dr. Silverman
served as a Vice-President of Corporate Finance for Rickel & Associates, an
investment banking firm. From 1991 until he joined Rickel & Associates in 1995,
Dr. Silverman was an independent business consultant specializing in early stage
and mid-size operating companies. From 1985 to 1991, Dr. Silverman was the
founder and Chairman of the Board of Directors of Vision Sciences, Inc., a
company that developed, manufactured and sold in-office lens casting systems,
which enabled the optical retailer to cast his own finished plastic optical
lenses. Dr. Silverman was a member of the Board of Directors and the director
of business development for Staar Surgical Co., Inc., a publicly owned company,
from 1984 to 1990. He was the co-founder and Chief Operating Officer of Hydro-
Optics, Inc., a manufacturer of hydrophilic contact lens, from 1974 until 1984.
Dr. Silverman has also been the Vice President and Chief Operating Officer of
Diversified Health Industries, Inc. and the President and Chief Executive
Officer of Precision Contact Lens, Inc. Dr. Silverman had a private optometric
practice in New York City from 1968 to 1972, specializing in contact lenses.
Dr. Silverman earned a Bachelor of Science in Chemical Engineering from the
college of the City of New York in 1965 and a Doctor of Optometry from Illinois
College of Optometry in 1968. See the Company's Report on Form 8-K, dated
January 20, 1997.
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APPOINTMENT OF NEW EXECUTIVE OFFICER OF NTC
On January 6, 1997, NTC entered into an employment agreement with James R.
Quandt pursuant to which Mr. Quandt is serving as the President of NTC's newly
formed operating division, and will be nominated to become a member of NTC's
Board of Directors. The employment agreement contemplates that Mr. Quandt will
eventually become the Chief Executive Officer of NTC upon the retirement of
Edward Jacobs, the current Chief Executive Officer, which is presently scheduled
for January 1, 1999.
Mr. Quandt's employment agreement commenced on January 6, 1997 and has a
term of three years. The employment agreement provides for Mr. Quandt to
implement a separation of the functions of the Company into an operating
division, with primary responsibility for the telephone business, and a
marketing division, with primary responsibility for the independent sales
representatives. Until Mr. Quandt becomes the Chief Executive Officer of NTC
(which is contemplated but not guaranteed), he and the President of the newly
formed marketing division will report to Mr. Jacobs. The employment agreement
recites that Mr. Jacobs also contemplates retiring as the Chairman of the Board
of Directors of NTC on July 25, 1999, although such retirement is not
contractually mandated. The employment agreement contemplates that Mr. Quandt
may be nominated to become the Chairman of the Board of Directors of NTC upon
Mr. Jacobs' retirement from that position.
Pursuant to the employment agreement, Mr. Quandt is entitled to the
following compensation: (1) A base salary of $40,000 per month, (2) an
incentive bonus equal to one and one-half (1.5%) of the quarterly net profit
earned by NTC, provided that the quarterly net profit is at least $1,250,000,
the payment of the bonus does not cause the quarterly net profit of NTC to be
less than $1,250,000, and NTC's pretax profit for the succeeding calendar
quarter is reasonably expected to exceed the minimum quarterly net profit of
$1,250,000, and (3) nonqualified stock options to purchase 600,000 shares of the
common stock of NTC. The stock options will have an exercise price determined
by the Board of Directors of NTC in accordance with the NTC Stock Option Plan,
but in no event greater than the higher of $5.00 per share or the fair market
value of NTC's stock at the time of the grant. See "THE COMPANY - Amendment to
NTC Management Incentive Agreement." The stock options will have an exercise
period of five years from the date of grant. The stock options will vest as
follows: (1) 250,000 stock options will vest upon Mr. Quandt completing 15
months of employment for NTC under the employment agreement, and (2) 350,000
stock options will vest only in the event NTC achieves cumulative pretax profits
which total a minimum of $10,000,000 in any four contiguous calendar quarters
prior to January 1, 1998.
In addition to the base salary, regular bonus and stock options, Mr. Quandt
will earn a hiring bonus equal to $225,000, payable if NTC's quarterly net
profits exceed $1,250,000, but in any event no later than December 31, 1997 with
respect to $150,000 of the guaranteed hiring bonus, and the balance by no later
than June 30, 1998. The hiring bonus will be paid at the rate of 1.5% of
quarterly pre-tax profits of NTC in excess of $1,250,000, and if not earned in
that manner, will be paid in full in two installments as follows: $150,000 by
December 31, 1997 and the balance by June 30, 1998. To the extent that the
regular bonus and guaranteed hiring bonuses are paid to Mr. Quandt pursuant to
his employment agreement, Mr. Jacobs has agreed to waive any remaining portion
of the quarterly incentive bonus payable by NTC to Mr. Jacobs (i.e. 1.5% of the
pre-tax net profits in excess of $1,250,000 of net profits of NTC per calendar
quarter) pursuant to Mr. Jacobs' current employment agreement with NTC.
Under the employment agreement, Mr. Quandt is entitled to a significant
severance payment if his employment terminates prior to the agreement's
termination date because of his death, disability, or for a reason other than
cause, or because of a voluntary resignation by Mr. Quandt for "good cause", as
defined in the employment agreement. Mr. Quandt has agreed not to compete with
NTC during the term of his employment agreement and for a period of one year
after the agreement terminates for any
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reason. The effectiveness of Mr. Quandt's employment agreement is conditioned
on its approval by the NTC Board of Directors, which is expected to be given in
the near future.
Prior to assuming his executive position with NTC, Mr. Quandt was the
Chairman of the Board of Directors of Global Financial Information Corporation,
a privately held group of companies in the financial information and technology
industry. Global Financial Information Corporation operates from a base of 27
offices internationally, with a staff of approximately 840 professionals. From
1991 to 1995, Mr. Quandt was the President and Chief Executive Officer of
Standard & Poors Financial Information Services, a subsidiary of McGraw Hill
Corporation in New York, New York. At Standard & Poors, Mr. Quandt was
responsible for all executive, administrative and operational functions of nine
domestic and international companies that comprised the Standard & Poors Group.
From 1980 to 1991, Mr. Quandt was an executive officer in various capacities
with Security Pacific Bank in Los Angeles, California. Mr. Quandt was the
Senior Vice President and Group Division Head of Security Pacific Bank's
Financial Management & Trust Services Group from 1988 to 1991. From 1983 to
1990, Mr. Quandt was the President and Chief Executive Officer of Security
Pacific Brokerage, Inc., a subsidiary of Security Pacific Bank, for which he
negotiated the sale in 1990 to Fidelity Investments. Mr. Quandt was Group Vice
President of Security Pacific Financial Management Centers from 1980 to 1983.
From 1976 to 1980, Mr. Quandt was a Second Vice President with Smith, Barney,
Harris, Upham & Co. in Los Angeles, California, and from 1972 to 1976, he was a
Senior Account Executive with the Bank of America. Mr. Quandt earned a Bachelor
of Science in Economic and Business Administration from Saint Mary's College of
California in 1971 and completed the program at the Graduate School of Business,
Management Policy Institute, at the University of Southern California. Mr.
Quandt is a member of the Board of Regents of Saint Mary's College of California
and the Alumni Council Board of the American Bankers Association. Mr. Quandt is
also a member of the New York Municipal Forum.
REINCORPORATION OF NTC AND RESIGNATION OF DIRECTOR
On March 20, 1997, NTC reincorporated under the laws of the State of
Delaware. On March 21, 1997, Jerry Ballah resigned as an officer and director
of NTC, which was accepted by the NTC Board of Directors. The Board of
Directors of NTC authorized NTC to enter into a consulting agreement with Mr.
Ballah pursuant to which he would provide marketing consulting services to
NTC for $150,000 per year in consulting fees. The NTC Board of Directors
also authorized NTC to make a one year loan of up to $600,000 to Mr. Ballah
bearing interest at the applicable federal rate, evidenced by a promissory
note payable to NTC. The outstanding balance of the loan is approximately
$550,000 as of June 27, 1997.
AMENDMENT TO BYLAWS
On June 8, 1997, the Board of Directors of the Company adopted an amendment
to the Company's Bylaws relating to the procedures for nominating candidates for
election as directors of the Company. The amendment states as follows:
"Section 3.A. NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the procedures set forth in this Section 3A shall be eligible
for election as, and to serve as, directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of the stockholders
at which directors are to be elected (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of the giving of such stockholder's notice provided for in
this Section 3A, who shall be entitled to vote at such meeting in the election
of directors and who complies with the requirements of this Section 3A. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be preceded by timely advance notice in writing to the
Secretary of the Corporation. To be timely, a stockholders' notice shall be
delivered to, or mailed and received at, the principal executive offices of the
Corporation (i) with respect to an election to be held at the annual meeting of
the stockholders of the Corporation, not later than the close of business on the
90th day prior to the first anniversary of the preceding year's annual meeting;
PROVIDED, HOWEVER, that with respect to the annual meeting of stockholders to be
held in 1997 or in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not later than the close of
business on the later of the 90th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of such meeting
is first made by the Corporation; and (ii) with respect to an election to be
held at a special meeting of stockholders of the Corporation for the election of
directors, not later than the close of business on the tenth day following the
day on which notice of the date of the special meeting was mailed to
stockholders of the Corporation or public disclosure of the date of the special
meeting was made, whichever first occurs.
Any such stockholder's notice to the Secretary of the Corporation shall set
forth (x) as to each person whom the stockholder proposes to nominate for
election or re-election as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the number of shares of each class of capital stock of the
Corporation beneficially owned by such person, (iv) the written consent of such
person to having such person's name placed in nomination at the meeting and to
serve as a director if elected and (v) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (y) as to
the stockholder giving the notice, (i) the name and address, as they appear on
the Corporation's books, of such stockholder and (ii) the number of shares of
each class of voting stock of the Corporation which is then beneficially owned
by such stockholder. The presiding officer of the meeting of stockholders shall
determine whether the requirements of this Section 3A have been met with respect
to any nomination or intended nomination. If the presiding officer determines
that any nomination was not made in accordance with the requirements of this
Section 3A, he shall so declare at the meeting and the defective nomination
shall be disregarded. Notwithstanding the foregoing provisions of this Section
3A, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 3A."
GRANT OF STOCK OPTIONS AND OTHER COMPENSATION BY THE COMPANY
The Company's Board of Directors approved the following executive
compensation for the President and Secretary of the Company at its Board meeting
on January 21, 1997, pursuant to the recommendation of the Company's
Compensation Committee:
(1) Melvyn Reznick's annual salary for the twelve month period
commencing on December 1, 1996 and ending on December 1, 1997 was increased
to $250,000. Mr. Reznick was granted a cash bonus of $40,000. He was also
granted options to purchase a certain number of shares of NTC common stock
from the Company. The number of options to purchase NTC stock would have
been equal to $135,000 divided by the fair market value of each share of NTC
stock on December 31, 1996. The exercise price would have been equal to the
fair market value of NTC stock and the term of the options would have been
three years. In June 1997, Mr. Reznick elected to accept his bonus in cash
in lieu of options to purchase NTC stock from the Company. The Company's
Compensation Committee also recommended that Mr. Reznick's bonus for 1997 be
$100,000, subject to the approval of the Company's Board of Directors early
next year, provided that the Board determines that Mr. Reznick satisfies the
following criteria: The Company completes the spin-off of 10% of the common
stock of NTC that it owns, the pending investigation of the Company by the
Securities and Exchange Commission is settled and terminated, the Company's
legal and regulatory issues are under control and, if possible, resolved, the
Company expands its corporate communications activities so that its stock is
presented properly to the investment community, the Company develops a new
source of revenues and profits so that Incomnet, Inc. has a clear potential
to cover its costs independent of NTC and RCI, and there is significant
appreciation in the value of the Company's stock.
-24-
(2) Stephen A. Caswell's annual salary for the twelve month period
commencing on January 1, 1997 was increased to $115,000. Mr. Caswell was
granted a cash bonus of $10,000. He was also granted options to purchase a
certain number of shares of NTC common stock from the Company, which would
have been calculated in the same manner as for Mr. Reznick, except that the
dollar amount of options is $40,000 rather than $135,000. In June 1997, Mr.
Caswell elected to accept his bonus in cash in lieu of options to purchase
NTC stock from the Company. The Compensation Committee recommended and the
Board of Directors approved a potential cash bonus of $35,000 for Mr. Caswell
for 1997, provided that the Company achieves the same goals as are applicable
to Mr. Reznick's potential 1997 bonus.
On January 21, 1997, the Board of Directors granted the following stock
options to the following officers, directors and consultants to the Company.
These options were not granted pursuant to and are not covered by the
provisions of Incomnet, Inc.'s 1996 Stock Option Plan:
Number Potential Realizable Value
of Stock Exercise at Assumed Annual Rates of Stock
Name Options Price Date of Expiration Price Appreciation for Term (3)
- ---- -------- -------- ------------------ --------------------------------
5% 10%
---- -------
Howard Silverman 35,000 $4.25 1/21/2002 $ 63,700 $113,400
Albert Milstein 35,000 $4.25 1/21/2002 $ 63,700 $113,400
Nancy Zivitz 35,000 $4.25 1/21/2002 $ 63,700 $113,400
Stephen Caswell 40,000(1) $4.25 1/21/2002 $ 72,800 $129,600
Mark Richardson(2) 20,000 $4.25 1/21/2002 $ 35,400 $ 64,800
- ------------------------------
(1) These stock options are pledged to the Company as additional collateral to
secure the nonrecourse loan by the Company to Mr. Caswell made on November
15, 1995, which is also secured by 20,000 shares of the Company's Common
Stock owned by Mr. Caswell. The current outstanding balance of the loan is
approximately $340,000.
(2) Mr. Richardson is corporate legal counsel to the Company. See "LEGAL
MATTERS."
(3) The assumed appreciation is calculated from the last sale price of the
Company's Common Stock on the NASDAQ over-the-counter market on June 27,
1997, which was $4.87 per share.
The members of the Compensation Committee are Albert Milstein, Nancy
Zivitz and Dr. Howard Silverman. Dr. Silverman joined the Compensation
Committee upon his appointment as a director on January 20, 1997. He did not
participate in the issuance of the report by the Compensation Committee
relating to the recommendations for compensation for Mr. Reznick and Mr.
Caswell, as described above, which were adopted by the full Board of
Directors on January 21, 1997. Mr. Caswell was a member of the Compensation
Committee until he resigned from it on June 27, 1997. Mr. Caswell did not
vote on the recommendations of the Compensation Committee relating to his
compensation from the Company. In approving the recommendations to the Board
of Directors for Mr. Reznick's and Mr. Caswell's compensation, the
Compensation Committee in its report noted extraordinary work performed by
these executives under difficult conditions. Mr. Reznick performed an
important role in financing and procuring the equity financing for Rapid
Cast, Inc., one of the Company's subsidiaries. Mr. Reznick personally made
and guaranteed bridge loans to Rapid Cast, Inc. as well as coordinating
negotiations with J.P. Morgan and The Clipper Group to complete the
institutional financing of Rapid Cast, Inc. Mr. Reznick is serving a key role
on the Board of Directors, Audit
-25-
Committee and Compensation Committee for Rapid Cast, Inc. He also works
extensively with the research and development department of Rapid Cast, Inc.
The Compensation Committee and the Board of Directors believes that the
institutional financing of Rapid Cast, Inc. may not have been accomplished
without the financial and managerial involvement of Mr. Reznick.
The Compensation Committee noted that Mr. Reznick was also instrumental in
resolving the issues with National Telephone & Communications, Inc., the
Company's 100% owned subsidiary, including initiating the procedures necessary
to accomplish the eventual spin-off of a portion of the Company's NTC shares.
The current management incentive agreement with NTC provides Incomnet, Inc. with
a reliable source of working capital in 1997. The Compensation Committee also
noted that Mr. Reznick served as an effective leader in resolving and making
progress in resolving difficult legal and regulatory issues affecting the
Company. The Compensation Committee made a comparative analysis of Mr.
Reznick's annual salary in relation to the salaries of chief executive officers
of public companies of approximately the same size, as well as the salaries of
the chief executive officers of NTC and RCI, and determined that the
recommendation for Mr. Reznick's compensation was fair and reasonable.
The Compensation Committee also issued a report with respect to Mr. Caswell
which noted his valuable work in providing support for the Company's litigation
tasks, including his assistance in the pending legal action for the recovery of
short swing profits for the Company in MORALES VS. INCOMNET, INC. AND SAM D.
SCHWARTZ. Mr. Caswell performed critical tasks in connection with the Company
raising $2,440,000 in the private placement of the Series A 2% Convertible
Preferred Stock. Mr. Caswell was also instrumental in establishing an investor
relations program for the Company including the hiring of Fi.Comm, Ltd., the
Company's investor relations firm. The Compensation Committee made a
comparative analysis of Mr. Caswell's annual salary in relation to the salaries
of corporate secretaries of public companies of approximately the same size, and
determined that the recommendation for Mr. Caswell's compensation was fair and
reasonable.
APPOINTMENT OF COMMITTEE MEMBERS
The current members of the Audit Committee of the Company's Board of
Directors are Albert Milstein, Nancy Zivitz and Dr. Howard Silverman. The
current members of the Compliance Committee of the Company's Board of Directors
are Melvyn Reznick, Mark Richardson, Albert Milstein and Nancy Zivitz. The
current members of the Compensation Committee of the Company's Board of
Directors are Albert Milstein, Nancy Zivitz, and Dr. Howard Silverman.
EMPLOYMENT AGREEMENTS WITH COMPANY MANAGEMENT
On June 8, 1997, the Company's Board of Directors approved an extension
of the employment agreement with Melvyn Reznick, the President and Chairman
of the Board of the Company, and a new employment agreement with Stephen A.
Caswell, the Company's Secretary and Vice-President. The existing employment
agreement with Mr. Reznick was extended until the earlier of (i) June 30,
2002, or (ii) six months after the date that 100% of the Company's holdings
of NTC stock are sold, conveyed or otherwise distributed but no sooner than
December 31, 1999 ("Early Termination Date"). The annual salary was
established to be $250,000 for the term of the contract. In the event of an
improper termination of the agreement by the Company for any reason, Mr.
Reznick is entitled (i) to be paid a lump sum amount equal to his annual
salary during the remaining term of his agreement plus his annual salary for
three additional years, plus accrued bonus, if any, (ii) to receive all of
his benefits during such period, and (iii) to exercise all of his vested
stock options at any time during the remaining term of the options. In the
event of an early termination because of the disposition of 100% of the
Company's NTC stock, then the Company has agreed to pay Mr. Reznick a lump
sum amount equal to the sum of the annual compensation and accrued but unpaid
bonus (if any, with respect to the bonus) which would be payable to him for
one additional year after the Early Termination Date, but not beyond June 30,
2002, as well as to provide his benefits during that period and to permit him
to exercise his vested stock options during the remaining term of the
options.
Mr. Caswell's employment agreement has a term which expires on the
earlier of (i) December 31, 1999, or (ii) six months after the date that 100%
of the Company's holdings of NTC stock are sold, conveyed or otherwise
distributed. His annual salary is $115,000 during the term of the contract.
In the event of an improper termination of Mr. Caswell's employment agreement
by the Company for any reason, Mr. Caswell is entitled (i) to be paid a lump
sum amount equal to his annual salary during the remaining term of his
agreement plus his annual salary for 15 additional months, (ii) to receive
all of his benefits during that period, and (iii) to exercise all of his
vested stock options at any time during the remaining term of the options.
In the event of an early termination because of the disposition of 100% of
the Company's NTC stock, then the Company has agreed to pay Mr. Caswell a
lump sum amount equal to the sum of the annual compensation and accrued bonus
(if any, with respect to the bonus) which would be payable to him for one
additional year after the Early Termination Date, but not beyond December 31,
1999, as well as to provide his benefits during such period and to permit him
to exercise his vested stock options during the remaining term of the options.
FILING OF SCHEDULE 13D
On May 5, 1997, four shareholders representing to own a total of 1,119,094
shares of the Company's Common Stock filed a Schedule 13D with the Securities
and Exchange Commission. The shareholders are David Wilstein, his brother,
Leonard Wilstein, Richard M. Horowitz and Jack Gilbert. The shareholders,
acting in concert, state that they are considering various courses of action
including but not limited to acquiring additional shares of the Company's stock
and seeking representation on the Company's Board of Directors by proposing
nominees for election to the Board at the Company's annual meeting of the
shareholders or otherwise.
ACQUISITION OF CALIFORNIA INTERACTIVE COMPUTING, INC.
On May 2, 1997, the Company acquired 100% of the issued and outstanding
capital stock of California Interactive Computing, Inc. ("CIC"), a private
California corporation engaged in the business of developing and marketing
computer software that is used to process insurance related claims, including
workers compensation, disability, general medical, and property and casualty
claims. CIC's computer software is leased to companies which provide their own
insurance and claims administration, to insurance companies, and to third party
administrators who process claims for either self-insured companies or insurance
companies. CIC was incorporated in 1977 and has provided software for claims
processing for 20 years. The total purchase price for CIC was $2,176,829
payable over a five year period, comprised of a total of $1,758,302 payable in
cash to the shareholders of CIC for their stock and the assumption of
approximately $418,527 of loans payable by CIC to two of its prior shareholders.
In addition, CIC entered into a two year employment agreement with Jerry
Buckley, CIC's prior President and Chairman of the Board of Directors, pursuant
to which CIC is paying Mr. Buckley $10,000 per month in consideration for his
services as the Director of Strategic Planning for CIC. See "Item 13 - Certain
Relationships and Related Transactions - Acquisition of California Interactive
Computing, Inc." in the Company's 1997 Form 10-KA. See also the Company's
Report on Form 8-K, dated May 2, 1997, and "Item 5 - Other Information -
Acquisition of California Interactive Computing, Inc." in the Company's Form
10-Q for the quarter ended March 31, 1997.
AGREEMENTS WITH NTC AND ITS MANAGEMENT
In November 1996 the Company entered into a new management incentive
agreement with NTC pursuant to which the Company agreed to spin-off 10% of
the shares it owns in NTC, to establish stock option programs for the senior
executives, employees and key independent sales representatives of NTC, and
to vote its shares for NTC management's slate of director nominees. The new
management incentive agreement entirely superseded the incentive agreement
entered into by the Company with NTC in February 1996. See "Item 5. Other
Information - Agreement with NTC Management" in the Company's Form 10-Q for
the quarter ended September 30, 1996 as updated under "Item 1. Business -
National Telephone and Communications Inc. - Management Incentive Agreement"
in the Company's 1996 Form 10-K. The Company also entered into settlement
agreements with Edward Jacobs, the Chairman of the Board Directors and
President of NTC, and Jerry Ballah, the Executive Vice President and a
director of NTC, pursuant to which mutual general releases were given. The
Company agreed to assume certain debt obligations of Mr. Jacobs and Mr.
Ballah to NTC, as well as to make a cash payment to them to cover their tax
liabilities from the debt forgiveness. See "Item 5. Other Information -
Settlement Agreement with NTC Directors" in the Company's Form 10-Q for the
quarter ended September 30, 1996 as updated under "Item 1. Business -
National Telephone and Communications Inc. - Management Incentive Agreement"
in the Company's 1996 Form 10-K.
-26-
On January 28, 1997, the Company entered into an amended and restated
management incentive agreement with NTC which entirely supersedes the agreement
entered into in November 1996. The amended and restated management incentive
agreement essentially contains the same terms and conditions as the agreement
entered into in November 1996, except as follows: The Company and NTC agree
that the Company, as the owner of 100% of the total issued and outstanding stock
of NTC, owns ten million shares of NTC. The three NTC stock option plans
previously agreed to have been revised. The Company and NTC have now agreed
that there will be three stock option plans and one convertible debt plan. The
exercise price of all stock options issued under the option plans will not be
less than the fair market value of NTC common stock on the date of the grant,
and the conversion price of the convertible debt issued under the convertible
debt plan will not be less than the fair market value of NTC common stock on the
date of the issuance of the convertible debenture. Shares issuable pursuant to
the plans are expected to be registered with the Securities and Exchange
Commission no later than at the time of NTC's planned public offering. Upon the
creation of the plans and first grant of options and convertible debt units
pursuant to the plans, Edward Jacobs will waive his rights to all remaining
outstanding unexercised warrants and options issued to him by the Company
pursuant to his employment agreement, dated December 28, 1994. See "Item 1.
Business - National Telephone and Communications, Inc. - Management Incentive
Agreement" in the Company's 1996 Form 10-K.
The amended and restated management incentive agreement was amended on
April 7, 1997 to reflect minor adjustments in the terms and conditions of the
NTC stock option and convertible debt plans. Those adjustments are reflected
in the discussion in the following paragraphs.
The first stock option plan is the one for key independent sales
representatives. A total of 2,884,615 shares are reserved for issuance under
this plan. Options to purchase 961,538 shares of NTC common stock were
granted to key independent sales representatives who are Corporate Team
members, 480,769 of which will vest on June 30, 1998, subject to acceleration
if NTC's public offering occurs prior to January 1, 1998. Options to
purchase the other 480,769 shares will vest on June 30, 1999. In connection
with this grant, NTC expects to recognize approximately $150,000 of
compensation expense in the period March 1997 to June 1999, assuming all
961,538 options granted vest. The exercise price of these options is $3.50
per share and the exercise term is five years from the date of grant (i.e.
they expire on March 20, 2002). The remaining 1,923,077 shares reserved for
issuance pursuant to stock options granted under this plan may be granted to
key independent sales representatives after each of June 30, 1997, December
31, 1997, June 30, 1998 and December 31, 1998 if NTC's gross revenues for the
three month periods ending on each of such dates exceed NTC's gross revenues
for the corresponding three month periods ending December 31, 1996, June 30,
1997, December 31, 1997 and June 30, 1998, by the percentage amounts
indicated on the following table:
Percentage Increase in NTC Gross Revenues Number of Options Available For Grant
In Comparative Three Month Periods At End of Each Period(1)
- ----------------------------------------- -------------------------------------
30% 125,000
40% 250,000
50% 500,000(1)
- ------------------------------
(1) Stock options in the amount indicated may be granted at the end of each of
the four comparative three month periods. If the percentage increase for all
four of the comparative periods is 50% or more, then the total stock options
available for grant in the fourth period would be 423,077 instead of 500,000
because there are 1,923,077 (not 2,000,000) options available for grant under
this portion of the key independent sales representatives' stock option plan.
These stock options, once granted, will vest in four equal annual
installments on each anniversary date after the stock option grant date. The
exercise price for these stock options will equal the greater of $3.50 per
share or the fair market value of NTC common stock on the date of grant. The
NTC Board of Directors will determine when and to whom these stock options will
be granted.
-27-
The second stock option plan is the one for NTC executives, employees
and key consultants. A total of 3,705,001 shares are reserved for issuance
under this plan. Options representing 1,446,026 of these reserved shares
will be subject only to a time-in-service vesting requirement, but in no
event will such options vest prior to January 1, 1998. Options representing
1,682,051 of the reserved shares will vest in four equal annual installments
on each anniversary date of the option grant date, subject to the
acceleration of vesting in the event that NTC achieves certain income targets
in 1997, to be determined by the NTC Board of Directors. An amount equal to
480,770 of the 1,682,051 shares issuable pursuant to options granted under
this plan are reserved for issuance to Edward Jacobs and Jerry Ballah,
allocated 240,385 to Mr. Jacobs and 240,385 to Mr. Ballah. An amount equal to
576,924 of the 3,705,001 shares issuable pursuant to options granted under
this plan are also reserved for issuance to Mr. Jacobs and Mr. Ballah,
allocated 288,462 to Mr. Jacobs and 288,462 to Mr. Ballah. These stock
options have been granted but will not vest until January 31, 2002, except
that the vesting of these stock options will accelerate if NTC achieves
certain revenue goals prior to January 1, 2000.
On March 20, 1997, options to purchase 2,437,094 shares of NTC common
stock were granted under the second option plan to a total of 263 employees
and consultants of NTC, including the aboved described 480,770 and 567,924
stock options granted to Mr. Jacobs and Mr. Ballah. On April 11, 1997,
options to purchase an additional 735,000 shares of NTC common stock were
granted to a total of 18 key consultants of NTC. The exercise price of the
2,437,094 stock options is $3.50 per share and the exercise price of the
735,000 stock options is $3.75 per share. The exercise period is ten years
from the date of grant, regardless of when they vest. In the future, and
prior to NTC becoming a publicly traded company, the exercise price of any
new options granted under this plan will be the higher of the latest Duff &
Phelps appraisal of each share of NTC common stock or $3.50 per share. After
NTC becomes a publicly traded company, the exercise price of any stock
options granted under this plan will not be less than the fair market value
of NTC's stock on the date of the grant or, in the case of stock options
granted to affiliates of NTC, 110% of the fair market value of NTC's stock.
The third stock option plan is the one for members of NTC's Board of
Directors. A total of 300,000 shares are reserved for issuance under this plan.
Each director of NTC will receive an option to purchase 25,000 shares of NTC
common stock which will vest in four equal annual installments on each
anniversary date of the option grant date.
The fourth option plan is the Senior Executive and Consultant
Convertible Debt Plan for Edward Jacobs and Jerry Ballah. A total of
2,664,231 shares are reserved for issuance under this plan. Mr. Jacobs and
Mr. Ballah have collectively received convertible debt units which may be
converted into 2,664,231 shares of NTC common stock, allocated 1,407,115 to
Mr. Jacobs and 1,257,116 to Mr. Ballah. These convertible debt units were
issued by NTC on April 11, 1997. In connection with the issuance of the
convertible debt units, Mr. Jacobs and Mr. Ballah issued convertible
debentures to NTC at the rate of $3.00 per conversion share (i.e. an
aggregate of $7,992,693 in debentures payable to NTC), bearing fixed simple
interest at the rate of 6.49% per annum and payable in full on the earlier of
(a) the date five years from the date of grant (i.e. April 11, 2002), or (b)
the conversion date. The convertible debentures are full recourse
obligations of Mr. Jacobs and Mr. Ballah. Each convertible debt unit is
convertible into one share of NTC common stock at a conversion price equal to
the outstanding principal and interest balance of the convertible debentures
plus $.01 per share. A portion of the convertible debt units granted under
this plan may be assignable.
The vesting of all stock options and convertible debt units is dependent
upon the grantee being a director, officer, employee or key consultant of NTC at
the time of vesting. All nonvested stock options expire automatically upon the
termination or severance of a grantee from employment or service with NTC.
Furthermore, grantees of the stock options generally have a period of 90 days
(30 days in the case of consultants) after a severance from NTC in which to
exercise vested stock options (this provision is not applicable to convertible
debt units). The following table lists the stock options and convertible debt
units issued to the directors and executive officers of NTC as of June 27, 1997.
These stock options do not include any that have been granted to the independent
sales representatives of NTC or other employees or consultants of NTC.
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Grantee Type Number Exercise or Date of Value at Assumed Annual
Conversion Expiration Rates of Stock Price
Price Appreciation For Term(10)
5% 10%
--- ---
Edward R. Jacobs(1) Stock Options 240,385 $3.50 3/20/2007(8) $ 333,338 $1,029,143
Stock Options 288,462 $3.50 3/20/2007(9) $ 400,004 $1,234,617
Convertible
Debt Units 1,407,115 $3.01 4/11/2002 $1,170,167 $2,585,764
James R. Quandt(2) Stock Options 300,000 $3.50 3/20/2007(7) $ 416,000 $1,284,000
Stock Options 300,000 $3.50 3/20/2007(8) $ 416,000 $1,284,000
Michael Keebaugh(3) Stock Options 50,000 $3.50 3/20/2007(7) $ 69,334 $ 214,000
Stock Options 50,000 $3.50 3/20/2007(8) $ 69,334 $ 214,000
Victor C. Streufert(4) Stock Options 75,000 $3.50 3/20/2007(7) $ 104,001 $ 321,000
Stock Options 50,000 $3.50 3/20/2007(8) $ 69,334 $ 214,000
Deborah Chuckas(5) Stock Options 50,000 $3.50 3/20/2007(7) $ 69,334 $ 214,000
Stock Options 50,000 $3.50 3/20/2007(8) $ 69,334 $ 214,000
Louis Cheng(6) Stock Options 50,000 $3.50 3/20/2007(7) $ 69,334 $ 214,000
Stock Options 50,000 $3.50 3/20/2007(8) $ 69,334 $ 214,000
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
(1) Mr. Jacobs is the Chief Executive Officer and Chairman of the Board of
Directors of NTC. The conversion price of $3.01 per share for the
convertible debt units does not include accrued interest on the
outstanding debentures. The terms of Jerry Ballah's stock options
and convertible debt units are the same as Mr. Jacobs'. Mr. Ballah
resigined as an officer and director of NTC on March 21, 1997.
(2) Mr. Quandt is the President and a director of NTC.
(3) Mr. Keebaugh is the Vice-President of Operations of NTC.
(4) Mr. Streufert is the Chief Financial Officer of NTC.
(5) Ms. Chuckas is the Vice President of Marketing Support for NTC.
(6) Mr. Cheng is the Vice President of Information Systems for NTC.
(7) These stock options vest and are exercisable on the later of (i) 15
months after the employee's date of hire or 15 months after the
employee's date of promotion to the employee's current position,
whichever is later, or (ii) 180 days after the first sale by NTC of
common stock shares in a bona fide underwriting pursuant to a
registration statement under the Securities Act of 1933, as amended
(an "Underwriting").
(8) These stock options vest and are exercisable in accordance with the
following schedule, subject to acceleration as described after the
vesting schedule: (a) 25% on the later of the first anniversary of
each employee' date of grant or 180 days after an Underwriting, (b)
25% on the second anniversary of each employee's date of grant, (c)
25% on the third anniversary of each employee's date of grant, and (d)
25% on the fourth anniversary of each employee's date of grant. In
the event that the total of NTC's net income plus income and franchise
taxes paid or accrued during each fiscal quarter exceeds $10,000,000
in any four consecutive calendar quarters up to and including the
fourth calendar quarter of 1997, the vesting of these outstanding
stock options would accelerate so that all shares subject to such
options would vest on the later to occur of (i) 45 days after the last
day of the fourth consecutive calendar quarter on which the total of
NTC's net income plus income and franchise taxes exceeded $10,000,000,
or (ii) 180 days after an Underwriting. In the event that the total
net income plus income and franchise taxes paid or accrued during each
fiscal quarter of 1997 does not exceed $10,000,000 but total net
income plus income and franchise taxes paid or accrued during 1998 is
more than twice NTC's total net income plus income and franchise taxes
paid or accrued during 1997, the vesting of these stock options would
accelerate so that all shares subject to such options would vest on
the later of (i) February 15, 1999, or (ii) 180 days after an
Underwriting.
(9) These stock options vest on January 31, 2002, subject to acceleration
according to the following schedule: In the event that the sales of
NTC exceed the amounts set forth below in any calendar quarter up to
and including the fourth calendar quarter of 1999, the vesting of
these stock options would accelerate so that the following number of
shares subject to such options would vest:
SALES IN CALENDAR QUARTER NUMBER OF SHARES VESTING
------------------------- ------------------------
$100,000,000 192,308
$125,000,000 384,616
$180,000,000 576,924
(10) Assumes a current value of $3.00 per share for each share of NTC
common stock.
The amended and restated NTC management incentive agreement provides
that, until four additional independent directors are appointed to the NTC
Board of Directors, if a vacancy is created on the NTC Board of Directors by
reason of the death, resignation or removal, with or without cause, of Mr.
Jacobs, then the Company has agreed to vote its shares for the individual
nominated by the remaining NTC management director. In addition to the
regular members of the NTC Board of Directors, a key independent sales
representative may be nominated and elected to the NTC Board of Directors on
a rotating basis, such that the same sales representative cannot serve
consecutive terms. NTC has agreed to make total cash payments to the Company
on or before December 31, 1997 equal to $2,200,000, of which a net total of
$775,000 has already been paid as of June 27, 1997. The cash payments of up
to $2,200,000 by NTC to Incomnet, Inc. will be treated as a return of capital
to the
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Company. NTC may make advances to Incomnet, Inc. in excess of its cash payment
obligation of $2,200,000, which Incomnet, Inc. will be obligated to repay with
interest upon demand. Any charge to earnings or taxable income associated with
advances made by NTC to Incomnet, Inc. or costs incurred in the spin-off of NTC
shares will be incurred by Incomnet, Inc. for financial reporting purposes,
rather than by NTC.
SETTLEMENT WITH RCI PARTIES
As of December 9, 1996, the Company entered into a Settlement and Mutual
Release Agreement with Robert Cohen, Alan Cohen, Jeff Rubin, Jeff Cohen,
Broadway Partners, a partnership comprised of the children of Alan and Robert
Cohen, and Lenore Katz (the "RCI Parties"). Robert Cohen is a director and
shareholder of Rapid Cast, Inc. and Jeff Rubin is a director, shareholder and
executive officer of Rapid Cast, Inc. Jeff Cohen is the son-in-law of Robert
Cohen. See "SELLING SECURITY HOLDERS." Pursuant to the settlement agreement,
the RCI Parties purchased 360,000 Warrants entitling them to purchase 360,000
shares of the Common Stock of the Company for an exercise price of $3.75 per
share at any time until December 9, 1999. The RCI Parties paid a total of
$36,000 in cash to the Company for the Warrants. Certain of the RCI Parties
also purchased a total of 33,000 shares of the Common Stock of the Company for
an aggregate purchase price of $100,000. The Company is registering those
shares and the shares issuable upon the exercise of the Warrants pursuant to the
registration statement encompassing this Prospectus in accordance with its
agreement to do so in the Settlement and Mutual Release Agreement. See "SELLING
SECURITY HOLDERS." The Company and the RCI Parties also mutually released each
other from all claims, if any, which they may have had against each other, and
the RCI Parties assigned all of the claims which they may have against Sam and
Rita Schwartz, prior directors of the Company, to the Company.
STATUS OF THE CLASS ACTION LAWSUIT
The plaintiffs in the class action lawsuit SAUNDRA GAYLES VS.
INCOMNET, INC. AND SAM D. SCHWARTZ have conducted written discovery and taken
the deposition of the Company's custodian of records. In June 1997, the
Company entered into negotiations with the plaintiffs to settle the class
action lawsuit. The Company believes that the negotiations are progressing
and is hopeful that a settlement can be reached. There can be no assurance,
however, that a definitive settlement agreement will be entered into by the
Company and the class plaintiffs. See "RISK FACTORS - Risks Relating to
Incomnet, Inc. and NTC - SEC Investigation and Related Lawsuits."
In May 1997 the court in the class action lawsuit ruled that approximately
20 former shareholders of the Company referred to as the Everest plaintiffs are
permitted to "opt-out" of the class and file a separate lawsuit against the
Company, Sam Schwartz and other defendants which they may name. The Company
expects the Everest plaintiffs to file a separate lawsuit against it and other
defendants in the near future. The Everest plaintiffs are expected to assert
many of the same claims as the plaintiffs in the class action lawsuit, except
that the claims are expected to be based on direct communication between Mr.
Schwartz and representatives of the Everest plaintiffs. The Company intends to
vigorously defend the claims if they are asserted against it. There is no
assurance regarding whether or not the case will have a material adverse impact
on the financial condition, operating results or business performance of the
Company or its subsidiaries. See "Part II. Item 1. Legal Proceedings - Class
Action and Related Lawsuits" in the Company's Form 10-Q for the quarter ended
March 31, 1997.
STATUS OF SECTION 16(b) ACTION
On February 21, 1997, the plaintiffs and Sam Schwartz in the pending
lawsuit entitled RICHARD MORALES VS. INCOMNET, INC. AND SAM D. SCHWARTZ,
entered into a stipulated settlement pursuant to which Mr. Schwartz agreed to
pay $4,250,000 to the Company as full payment of his short swing profit
obligation to the Company. Under the stipulated settlement, the disgorgement
of short-swing profits would be payable $600,000 in cash and the balance by
cancellation of shares of the Company's Common Stock owned by Mr. Schwartz,
based on 90% of the average between the bid and the asked price of the
Company's Common Stock on the NASDAQ market during the 30 calendar days
immediately preceding the date that the court enters an order approving the
settlement. On June 9, 1997, the court entered an order approving the
settlement and awarded attorneys' fees and costs of $600,000 and $26,450,
respectively, payable by the Company from the award. The number of shares
transferable by Mr. Schwartz to the Company pursuant to the settlement has
been calculated to be 1,047,966, to be released from the two escrow accounts
currently holding a total of 1,050,000 shares. The remaining 2,034 shares
from the escrow accounts are being returned to Mr. Schwartz. The award of
attorneys' fees is being released to plaintiff's counsel from the $600,000 in
cash in the escrow accounts, and the Company is obligated to pay the expense
reimbursements of $26,450. Plaintiff's counsel has filed a motion for the
payment of interest on the entire award of $626,450, accruing from June 9,
1997, which the Company is vigorously defending. All fund and cash transfers
from the escrow account are suspended pending resolution of the claim for
interest by the plaintiff's counsel.
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LAWSUIT AGAINST SAM D. SCHWARTZ
On April 25, 1997, the Company filed a lawsuit against Sam D. Schwartz, its
prior President and Chairman of the Board, alleging fraud, breach of fiduciary
duty, negligence, and breach of contract, and seeking declaratory relief and the
imposition of a constructive trust. The lawsuit was filed in the Superior Court
of California in the County of Los Angeles. In the lawsuit, the Company alleges
that Mr. Schwartz failed to disclose to the Company or its Board of Directors
that he would obtain a direct financial benefit in connection with certain
transactions considered and/or entered into by the Company during the period
from 1993 to 1995. The Company further alleges that Mr. Schwartz fraudulently
induced the Company to enter into a Severance Agreement between him and the
Company on November 27, 1995, and that he breached his fiduciary duty to the
Company by self dealing, acting in bad faith and concealing material facts. The
Company seeks payment from Mr. Schwartz of the actual damages incurred by it as
a result of Mr. Schwartz's conduct, as well as interest, punitive damages,
attorney's fees and costs, and reimbursement of all payments previously made to
Mr. Schwartz pursuant to the Severance Agreement. Furthermore, the Company
seeks a declaratory order that Mr. Schwartz committed acts or omissions
involving known misconduct, the absence of good faith, an improper personal
benefit, a reckless disregard of his duties to the Company and its shareholders,
an unexcused pattern of inattention, and a violation of Sections 310 and 316 of
the California Corporations Code.
On June 24, 1997, Mr. Schwartz answered the Company's lawsuit against him
denying the allegations and counterclaiming for (i) enforcement of any payments
due under his Severance Agreement with the Company, (ii) indemnification
against third party claims, and (iii) payment of the same settlement to him as
was paid to the prior noteholders who purchased convertible notes from the
Company on February 8, 1995 (Mr. Schwartz also purchased convertible notes from
the Company on February 8, 1995), even though the Company's settlement with
those prior noteholders was based on the misconduct of Mr. Schwartz. See "THE
COMPANY - Settlement with Prior Noteholders." The Company intends to vigorously
assert its claims against Mr. Schwartz, including possible contribution claims
with respect to the Company's proposed settlement payments to the plaintiffs in
the class action lawsuit, and to vigorously defend against Mr. Schwartz's
counterclaims. The lawsuit against Mr. Schwartz has entered the discovery phase
and there is no assurance regarding its outcome. There is no assurance that the
case will not have a material adverse impact on the financial condition,
operating results and business performance of the Company or its subsidiaries.
See "Item 1. Legal Proceedings - INCOMNET, INC. VS. SAM D. SCHWARTZ" in the
Company's Form 10-Q for the quarter ended March 31, 1997, and "Item 3. Legal
Proceedings - Settlement with Prior Noteholders" in the Company's 1996 Form
10-K.
SETTLEMENT OF THE ATLANTA LAWSUITS
In February 1997, the Company completed a settlement and release agreement
with the plaintiffs in the pending lawsuits entitled HERBERT M. SCHWARTZ ET AL.
VS. INCOMNET, INC., SAM D. SCHWARTZ AND KALIBER MANAGEMENT CORP. and BRENT
ABRAHM ET AL. VS. INCOMNET, INC., SAM D. SCHWARTZ AND KALIBER MANAGEMENT CORP.
pursuant to which the lawsuit against the Company is being dismissed and an
order is being entered barring indemnification or contribution between the
Company and Sam D. Schwartz. In consideration for the payment of $400,000 in
cash and the issuance of a note in the principal amount of $400,000 to the
plaintiffs, the plaintiffs have released the Company from all claims and
dismissed their lawsuits against the Company with prejudice. The $400,000 note
was issued as of January 1, 1997 and bears interest at the rate of 12% per annum
from January 1, 1997 to January 22, 1997, and 8% per annum thereafter until
December 31, 1997, when the note is due and payable in full. The note is
secured by a certificate of deposit in the amount of $415,000 purchased by the
Company, which the Company has the right to replace with a number of registered
shares of its Common Stock equivalent in value to the certificate of deposit as
collateral for the note. The Company may use a portion of the shelf shares
covered by this Prospectus to pledge as collateral for the note in place of the
$415,000 certificate of deposit. The Company believes that Mr. Schwartz is in
separate settlement discussions with the plaintiffs.
SETTLEMENT OF THE STEVENS LAWSUIT
In January 1997, the Company entered into a Settlement Agreement and Mutual
Release of all claims in the pending lawsuit entitled CHARLES STEVENS VS. SAM D.
SCHWARTZ AND INCOMNET, INC. Pursuant to the settlement, the Company paid $7,500
in cash to the plaintiff and issued 12,500 Warrants to purchase 12,500 shares of
the Company's Common Stock at an exercise price of $2.94 per share, exercisable
at any time until December 17, 2001. The Company agreed to register the shares
underlying the 12,500 Warrants issued to Mr. Stevens and his legal counsel. In
consideration for the issuance of Warrants and payment of cash, the plaintiff
released the Company from all claims and dismissed the lawsuit against the
Company with prejudice. The settlement did not include Sam D. Schwartz.
SETTLEMENT WITH PRIOR NOTEHOLDERS
Commencing in January 1996 the Company entered into a series of settlement
agreements with certain prior holders of 8% convertible promissory notes issued
by the Company on February 8, 1995 to finance the acquisition of 51% of RCI.
See "Item 1. Business - Acquisition of RCI" in the Company's 1995 Form 10-K.
Settlement agreements have been executed by all seven of the prior noteholders
who held $825,000 of convertible notes. The registration statement covering the
prior noteholders' outstanding shares and newly issued settlement shares issued
pursuant to the settlement agreements was declared effective by the Securities
and Exchange Commission on October 31, 1996. See also "Item 3. Legal
Proceedings - Claims by Prior Noteholders" in the Company's 1996 Form 10-K.
SETTLEMENT WITH PRICE INTERNATIONAL
In August 1996, the Company entered into a settlement agreement with Price
International pursuant to which the Company agreed to lower the exercise price
of Price International's 75,000 warrants from $11.25 per share to $4.50 per
share, and to extend the expiration date of the warrants from
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November 15, 1997 until December 31, 1998. The Company also agreed to register
the 75,000 shares issuable upon the exercise of the warrants. Those shares were
registered by the Company in the registration statement which was declared
effective by the Securities and Exchange Commission on October 31, 1996. In
consideration for the modification to the terms and conditions of the warrants,
Price International agreed that (a) it would be required to exercise at least
25,000 of the warrants once the trading price of the Company's stock averages
$5.30 per share during any 30 day period, and (b) it releases and forever
discharges the Company from all claims it may have had against the Company for
events occurring prior to the date of the settlement agreement. Price
International has not yet exercised any of the warrants issued to it in its
settlement agreement with the Company.
ISSUANCE OF CONVERTIBLE PREFERRED STOCK
From September 20, 1996 to October 25, 1996, the Company issued 2,440
shares of Series A 2% Convertible Preferred Stock to 12 accredited investors in
a private placement pursuant to Regulation D of the Securities Act of 1933, as
amended. The shares of Series A 2% Convertible Preferred Stock were purchased
by four affiliated individuals and eight unaffiliated investors. The Company
raised $2,440,000 in capital from the issuance of the Preferred Stock, a portion
of which it utilized to repay advances made to it by Melvyn Reznick, the
Company's Chairman and Chief Executive Officer, who in turn owed approximately
$723,000 to a bank on a loan with a maturity date of September 16, 1996. Mr.
Reznick had borrowed these funds from the bank in order to make a substantial
portion of his loan to the Company, which enabled the Company to make its pro
rata share of loans to RCI. See "Item 5. Other Information - Loan to Company
By Melvyn Reznick" in the Company's Form 10-Q for the fiscal quarter ending
September 30, 1996. The balance of the proceeds is being utilized and is
expected to be utilized for general working capital and to pay the costs of
settling pending litigation. The Company paid a referral fee to Newport Capital
Partners, an unaffiliated financial consultant, equal to 5% of the capital
raised through its referrals, which was $1,700,000. The Company has therefore
paid $85,000 of referral fees to Newport Capital Partners. See "Item 1.
Business - Issuance of Convertible Preferred Stock" in the Company's 1996
Form 10-K. The basic terms and conditions of the Series A 2% Convertible
Preferred Stock are described in the following paragraphs:
VOTING. The Series A 2% Convertible Preferred Stock does not have voting
rights.
DIVIDEND. The Series A 2% Convertible Preferred Stock has a cumulative
noncompounded annual dividend of 2% payable in cash or stock at the Company's
option upon conversion of the Preferred Stock into Common Stock, and prior to
the payment of any dividends on the Common Stock.
LIQUIDATION PREFERENCE. The Series A 2% Convertible Preferred Stock has a
liquidation preference of $1,000 per share plus all cumulative unpaid dividends,
whether or not declared by the Company's Board of Directors. Upon any
liquidation or change of control of the Company (i.e. transfer of more than 50%
of its voting stock), the Preferred Stockholders are entitled to the first
priority in payment from the Company's assets, before any payments are made on
the Company's Common Stock, until the liquidation preference is paid in full.
CONVERSION. The Preferred Stockholders may convert each share of Series A
2% Convertible Preferred Stock into the number of shares of the Company's Common
Stock calculated as follows, at any time upon the earlier of (i) 90 days after
the issuance of the Preferred Stock, or (ii) 60 days after the shares of Common
Stock underlying the Preferred Stock are registered with the Securities and
Exchange Commission: The conversion price (the "Conversion Price") for each
share of Series A 2% Convertible Preferred Stock is equal to the lesser of (a)
80% of the average bid price for the Company's Common Stock on the public
trading market for the five trading days immediately preceding the conversion
date, as specified by the Preferred Stockholder, or (b) the bid price of the
Company's Common Stock on the funding date (i.e. the issuance date of the
Preferred Stock). To calculate the number of shares of Common Stock issuable
upon the conversion of the Preferred Stock, the Conversion Price is multiplied
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by a ratio, the numerator of which is the sum of 1,000 and the accrued but
unpaid dividends, and the denominator of which is the Conversion Price. If for
any reason a registration statement covering the shares of Common Stock issuable
upon the conversion of the Preferred Stock is not in effect with the Securities
and Exchange Commission at the time of a valid conversion by a Preferred
Stockholder, then the Conversion Price is reduced by 3% per month for each of
the first three months that the effectiveness of the registration is late. The
Company has the right to cause a conversion of the Preferred Stock into Common
Stock on the same terms at any time after one year after the Preferred Stock is
issued.
REDEMPTION. The Company has the right to redeem the Preferred Stock for
its issuance price plus cumulative unpaid dividends if the Company's stock
trades at a price which averages $2.00 per share or less for any period of five
consecutive trading days after the Preferred Stock is issued.
REGISTRATION RIGHTS. Pursuant to a Registration Rights Agreement entered
into by the Company with each purchaser of the Series A 2% Convertible Preferred
Stock, the Company is obligated to file a registration statement with the
Securities and Exchange Commission covering the shares of Common Stock
underlying the Preferred Stock within 30 days after the Preferred Stock is
issued, and to have the registration statement declared effective within 75 days
after it is filed. The Underlying Shares issuable upon the conversion of the
first 365 shares of Series A 2% Convertible Preferred Stock were covered by a
prior registration statement declared effective by the Securities and Exchange
Commission on October 31, 1996. The balance of the shares of Common Stock
issuable upon the conversion of outstanding Series A 2% Convertible Preferred
Stock are covered by this Prospectus.
ANTIDILUTION PROVISION. The Certificate of Determination for the Series A
2% Convertible Preferred Stock contains comprehensive provisions for adjustments
to the Conversion Price and the conversion ratio of the Preferred Stock in the
event of stock dividends, asset distributions, reorganizations,
recapitalizations, mergers, stock splits or similar transactions by the Company,
in order to protect the Preferred Stock from dilution as a result of such
transactions.
RESTRICTIVE COVENANTS. During the first 90 days after the Series A 2%
Convertible Preferred Stock is issued, the Company is not permitted to issue any
other securities, except in limited circumstances, including pursuant to the
exercise of outstanding options or warrants or pursuant to existing settlement
agreements, without first notifying the Preferred Stockholders and giving them a
right of first refusal to purchase the securities themselves. While the Series
A 2% Convertible Preferred Stock is outstanding or until it is converted into
Common Stock, the Company is not permitted to engage in certain transactions,
such as the redemption or purchase of its own Common Stock (except in connection
with the collection of Section 16(b) short-swing profits), without the prior
consent of the Preferred Stockholders. Furthermore, the Company is not
permitted to pay cash dividends on its Common Stock unless all cumulative unpaid
dividends on the Series A 2% Convertible Preferred Stock is paid. The Company
cannot take any action which would modify the rights of the Preferred
Stockholders under the Certificate of Determination without the prior consent of
the Preferred Stockholder being affected by the modification.
RECENT CAPITALIZATION OF RCI
On January 16, 1997, Rapid Cast, Inc., a minority owned subsidiary of the
Company, issued 8,000,000 shares of Series A and Series B 7% Convertible
Preferred Stock to institutional investors in a private placement pursuant to
Regulation D of the Securities Act of 1933, as amended. The investors
contributed $12,000,000 in capital in consideration for the issuance of
7,275,000 shares of voting Series A 7% Convertible Preferred Stock and 725,000
shares of nonvoting Series B 7% Convertible Preferred Stock. The investors also
have the option to purchase up to an additional 6,666,666 shares of voting or
nonvoting 7% Convertible Preferred Stock from RCI for a purchase price $1.50 per
share, exercisable with respect to 3,333,333 of the shares upon the sooner to
occur of (i) the appointment of a permanent
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Chief Executive Officer of RCI, or (ii) July 16, 1997, or the option relating to
those shares will expire unexercised. The option with respect to the remaining
3,333,333 shares must be exercised on or before July 16, 1998, or the option
with respect to those shares will expire unexercised. Frank Pipp, the new
Chairman of the Board of Directors of RCI, also has an option to purchase up to
1,333,333 shares of Series A 7% Preferred Stock at any time until July 16, 1998
for a price of $1.50 per share.
The proceeds of the issuance of the Series A and Series B 7% Convertible
Preferred Stock were utilized by RCI (i) to repay short-term bridge loans made
to RCI by its shareholders, including Incomnet, Inc., in the approximate total
amount of $3,705,430; (ii) to repurchase 1,200,000 shares of RCI common stock
from Dr. Larry Joel for a redemption price of $1.28 per share; (iii) to make the
final settlement payment of $325,000 on the patent infringement lawsuit known as
RONALD BLUM, O.D. VS. RAPID CAST, INC., ET AL., which has been dismissed; (iv)
to repay the bank line of credit with Bank Leumi in the approximate outstanding
amount of $500,000 plus interest; (v) to pay placement costs of approximately
$500,000; (vi) to pay all trade payables in the approximate outstanding amount
of $2,000,000, and (vii) the balance for working capital. The outstanding RCI
founder loans in the approximate outstanding balance of $1,680,000 on the date
of the closing, the other RCI shareholder bridge loans which were not repaid
from the proceeds of the private placement of the Series A and Series B 7%
Convertible Preferred Stock, and the outstanding 8% convertible notes in the
approximate outstanding balance of $648,000 (which were convertible into RCI
common stock at a price of $.80 per share), were all converted into newly issued
RCI common stock and Series C 7% Convertible Preferred Stock as follows:
No. of Shares of
Series C No. of Shares
Name of RCI Shareholder Preferred Stock(1) of Common Stock (2)
- ----------------------- ------------------ -------------------
Robert Cohen 121,543 260,708(3)
Alan Cohen 120,194 260,708(5)
Jeff Rubin 122,260 45,752
Sean Zimberg 111,781 135,252
Dr. Larry Joel(6) 0 255,099
Huberfeld Bodner Partnership 0 543,390
Martin Price 27,485 53,856
Incomnet, Inc. 0 428,570
- ------------------------------
(1) Issued at a price of $1.50 per share.
(2) Issued at a price of $.80 per share with respect to the conversion of the
outstanding principal balance of the 8% convertible promissory notes, and
$1.28 with respect to the conversion of the RCI founder loans and the
accrued but unpaid interest on the 8% convertible promissory notes.
(3) Includes 36,602 shares issued in the name of Robert Cohen's children.
(4) Includes 120,194 shares issued in the name of Alan Cohen's children.
(5) Includes 36,602 shares issued in the name of Alan Cohen's children.
(6) In September 1996 Dr. Joel surrendered 142,222 shares of RCI common stock
to RCI as the settlement payment for $448,000 of liabilities owed by Dr.
Joel to RCI.
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From the proceeds of the capitalization of RCI on January 16, 1997,
Incomnet, Inc. was repaid $2,647,348 of principal and accrued interest on its
short term bridge loans which it made to RCI during the period from April 1996
through January 1997. RCI also issued 428,570 shares of its common stock to
Incomnet, Inc. in exchange for the conversion by Incomnet, Inc. of $326,400 of
8% convertible promissory notes purchased by it from RCI in January 1996.
Incomnet, Inc. now owns 10,628,570 shares of RCI common stock. Melvyn Reznick
was repaid $80,000 plus interest at the rate of 10% per annum for the loan he
made to RCI in late December 1996, and Stephen Caswell was repaid $12,500 plus
interest at the rate of 10% per annum for the loan he made to RCI in early
January 1997.
Pursuant to its Amended and Restated Certificate of Incorporation filed on
January 16, 1997, RCI is authorized to issue a total of 60,000,000 shares of
common stock, 22,000,000 shares of which are nonvoting common stock, and
42,500,000 shares of preferred stock, all having a par value of $.001 per share.
As of March 17, 1997, RCI has a total of 22,091,113 shares of common stock
issued and outstanding, 10,628,570 of which are owned by Incomnet, Inc.,
7,275,000 shares of voting Series A 7% Convertible Preferred Stock, 725,000
shares of nonvoting Series B 7% Convertible Preferred Stock, and 503,264 voting
Series C 7% Convertible Preferred Stock. Incomnet, Inc. does not own any
outstanding RCI preferred stock. Each share of issued and outstanding Series A,
Series B and Series C Preferred Stock is convertible into one share of RCI
common stock (subject to adjustment) at any time at the option of the preferred
stockholder, and automatically upon the occurrence of a "qualified public
offering" by RCI, as that term is defined in the Certificate of Determination of
Rights, References and Privileges for all outstanding series of RCI preferred
stock. The terms of conversion and other rights of the outstanding RCI
preferred stock are all subject to customary adjustments and antidilution
provisions in the event of stock splits, certain stock dividends, stock
combinations, reorganizations, recapitalizations and similar events. A
"qualified public offering" by RCI occurs when RCI makes a public offering of
its securities having gross proceeds of at least $20,000,000 and an offering
price of at least $1.90 per share if it occurs on or prior to December 31, 1997,
$2.14 per share if it occurs on or prior to June 30, 1998, $2.40 per share if it
occurs on or prior to December 31, 1998, $2.69 per share if it occurs on or
prior to June 30, 1999, $3.02 per share if it occurs on or prior to December 31,
1999, $3.40 per share it occurs on or prior to June 30, 2000, $3.81 per share if
it occurs on or prior to December 31, 2000, $4.29 per share if it occurs on or
prior to June 30, 2001, $4.82 per share if it occurs on or prior to December 31,
2001, $5.41 per share it if occurs on or prior to June 30, 2002, and $6.08 per
share if it occurs after June 30, 2002, in each case as adjusted for stock
splits, certain stock dividends, stock combinations and similar events.
The Series A, Series B and Series C 7% Convertible Preferred Stock have a
liquidation preference of $1.50 per share. All outstanding RCI preferred stock
have a cumulative noncompounded dividend of 7% per annum which must be declared
and paid in full before any dividends may be declared or paid on the RCI common
stock. All dividends on outstanding RCI preferred stock, regardless of whether
Series A, Series B or Series C, must be declared and paid ratably on all such
outstanding preferred stock. Each holder of outstanding RCI preferred stock has
the right to be paid the 7% dividend, when declared, either in cash, in shares
of Series A, Series B or Series C Preferred Stock (at a price of $1.50 per
preferred share, subject to adjustment), or in a combination of cash and
preferred stock. The cumulative unpaid dividend on the outstanding RCI
preferred stock must be paid in full in shares of RCI common stock (at a price
of $1.50 per common share, subject to adjustment) or in cash, at the option of
the preferred stockholder, upon the conversion of the preferred stock into
common stock. The preferred stockholder may require RCI to redeem the
outstanding preferred stock beginning after January 1, 2003 if the preferred
stock has not otherwise been converted. The redemption price would equal the
original issue price plus cumulative unpaid dividends. The Certificate of
Determination for the outstanding RCI preferred stock contains numerous
restrictive covenants applicable to RCI with respect to the incurrence of debt,
sale of assets, issuance of shares, mergers, reorganizations, recapitalizations,
affiliate transactions, and similar transactions by RCI.
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In connection with the issuance of the preferred stock by RCI, RCI and its
shareholders entered into a Registration Rights Agreement, a Shareholders
Agreement and related agreements governing the outstanding RCI shares and the
management of RCI.
Pursuant to the Registration Rights Agreements, the Series A and Series B
Preferred Stockholders have priority demand and piggyback registration rights
with respect to the shares of RCI common stock issuable upon the conversion of
the preferred stock, and issuable upon the exercise of warrants held by them.
The Series A and Series B Preferred Stockholders are the only RCI shareholders
with demand registration rights, of which they have three for less than
$5,000,000 of proposed sales and an unlimited number of proposed sales in excess
of $5,000,000. With respect to piggyback registration rights, the holders of
Series A and Series B Preferred Stock are entitled to 80% of the available
registration of shares for selling security holders on a pro rata basis, and the
other existing RCI shareholders are entitled to 20% of the available share
registration for selling security holders on a pro rata basis, subject to other
conditions and limitations.
Pursuant to the RCI Shareholders Agreement, the RCI shareholders and RCI
are granted certain first rights of refusal to purchase RCI stock proposed for
sale by other RCI shareholders. The RCI Shareholders Agreement imposes certain
other restrictions on the transferability of RCI shares, except for Rule 144
sales, a sale of shares in a public offering pursuant to the Registration Rights
Agreement, and a transfer to RCI. The RCI shareholders also agree to vote their
shares so that (i) the RCI Board of Directors will consist of nine members, (ii)
subject to certain conditions, the RCI Board of Directors will consist of two
members designated by J.P.Morgan Investment Corporation and its related
investors, two members designated by Clipper Capital Associates, L.P. and its
related investors, one member designated by Incomnet, Inc., provided, that if
Incomnet, Inc. undergoes a "change of control" (defined as the cessation of
Melvyn Reznick's service on the RCI Board of Directors for any reason or certain
other changes in the Incomnet, Inc. Board of Directors or the stock ownership of
Incomnet, Inc.), then the Incomnet designee must be approved by a majority of
the other members of the RCI Board of Directors, one member designated by Jeff
Rubin, one member designated by Robert Cohen, one member (initially Frank Pipp)
designated by a majority of the RCI Board of Directors who qualify as outside
directors and approved by a majority of the RCI shareholders, and one member who
is the interim or permanent Chief Executive Officer of RCI. RCI has established
Executive, Audit and Compensation Committees.
The following persons are the current members of the RCI Board of Directors
and its Committees:
I. BOARD OF DIRECTORS(1)
Molly F., Ashby (J.P. Morgan Designee)
Robert Cohen
Patrick H. Ganett (J.P. Morgan Designee)
Kevin A. Macdonald (Clipper Designee)
Frank Pipp (Chairman and Interim Chief Executive Officer)(2)
Melvyn Reznick (Incomnet Designee)
Jeff Rubin
II. EXECUTIVE COMMITTEE
Molly F., Ashby (Chairman)
Kevin A. Macdonald
Frank Pipp
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III. COMPENSATION COMMITTEE
Patrick H. Ganett (Chairman)
Kevin A. Macdonald
Frank Pipp
Melvyn Reznick
IV. AUDIT COMMITTEE
Melvyn Reznick (Chairman)
Patrick H. Ganett
Kevin A. Macdonald
- ------------------------------
(1) The Board of Directors currently has one vacancy which is reserved for the
permanent Chief Executive Officer when he is hired.
(2) John L. Vidovich is currently a consultant and acting co-Chief Executive
Officer of RCI with Frank Pipp. Mr. Vidovich may become the permanent
Chief Executive Officer of RCI. The permanent Chief Executive Officer of
RCI is expected to join the RCI Board of Directors and may join one or more
of its Committees.
Upon the completion of a "qualified public offering" by RCI, as that term
is defined in the Certificate of Determination for the outstanding RCI preferred
stock and as described above, the voting and transferability restrictions in the
RCI Shareholders Agreement generally terminate, except that the RCI shareholders
agree to vote for one director designee each for J.P. Morgan and Clipper after
the "qualified public offering" as long as their investors hold a specified
minimum number of shares of RCI. The RCI Shareholders Agreement grants the RCI
shareholders pro rata preemptive rights to purchase new securities proposed to
be issued by RCI, except in circumstances such as when RCI makes a public
offering, issues stock to acquire another company in a purchase, merger or other
reorganization, issues stock pursuant to outstanding conversion rights, options
or warrants, issues up to 120,000 shares to John L. Vidovich or 450,000 shares
to Frank Pipp, implements a stock split or stock dividend, or issues stock after
a "qualified public offering" by RCI.
In connection with the short term bridge loans made to RCI from April 1996
to January 1997 and the issuance of the preferred stock by RCI on January 16,
1997, RCI issued options and warrants to purchase its common stock, and amended
and restated its 1994 Stock Option Plan. The RCI 1994 Stock Option Plan was
amended to authorize and reserve up to 4,514,732 shares of its common stock for
issuance upon the exercise of stock options granted and which may be granted by
the RCI Board of Directors in the future. Under the RCI 1994 Stock Option Plan,
a total of 3,260,000 stock options have been granted to various officers,
directors, employees and key consultants of RCI. The exercise price of 908,000
of the stock options is $2.25 per share and the exercise price of 1,842,000 of
the stock options is $2.00 per share. These stock options have vested (subject
to continued employment) and are exercisable at any time from the date of grant
until dates ranging from November 1, 2005 until July 31, 2006. Melvyn Reznick
was granted 100,000 of these options by RCI, having an exercise price of $2.25
per share and exercisable at any time until July 31, 2006. Frank Pipp was
granted 450,000 of these stock options to purchase a total of 450,000 shares of
RCI common stock at any time until January 20, 2007, 225,000 to which may be
purchased at an exercise price of $1.28 per share and 225,000 of which may be
purchased at an exercise price of $4.00 per share. RCI also granted to John L.
Vidovich 60,000 of these stock options to purchase 60,000 common stock at any
time until January 20, 2007 at an exercise price of $1.28 per share.
-36-
RCI issued to the purchasers of the Series A and Series B Preferred Stock
warrants to purchase 1,400,000 shares of RCI common stock at an exercise price
of $1.74 per share, exercisable at any time until January 16, 2004. The holders
of these warrants have certain registration rights under the Registration Rights
Agreement described above, and customary adjustment and antidilution protection.
In connection with short term bridge loans made to RCI by its shareholders
and others during the period from April 1996 until early January 1997, RCI
issued a total of 4,441,933 warrants to purchase 4,441,933 shares of RCI common
stock at any time until dates ranging from September 30, 2003 to December 31,
2003. The exercise price of 1,853,683 of the warrants is $2.25 per share, the
exercise price of 302,500 of the warrants is $1.28 per share, and the exercise
price of 2,285,750 of the warrants is $.75 per share. Incomnet, Inc. holds
841,416 of these warrants to purchase 841,416 shares of RCI common stock at an
exercise price of $2.25 per share at any time until September 30, 2003, 480,000
of these warrants to purchase 480,000 shares of RCI common stock at an exercise
price of $.75 per share at any time until December 30, 2003, 150,000 of these
warrants to purchase 150,000 shares of RCI common stock at an exercise price of
$1.28 per share at any time until December 31, 2003, and 1,090,000 of these
warrants to purchase 1,090,000 shares of RCI common stock at an exercise price
of $.75 per share at any time until November 30, 2003. In consideration for
personal loans and loan guarantees, Melvyn Reznick holds 175,000 of these
warrants to purchase 175,000 shares of RCI common stock from the Company at an
exercise price of $2.25 per share at any time until September 30, 2003, and
160,000 of these warrants to purchase 160,000 shares of RCI common stock from
RCI at an exercise price of $.75 per share at any time until December 31, 2003.
In consideration for personal loans to RCI, Albert Milstein was issued 25,000
warrants to purchase 25,000 shares of RCI common stock at an exercise price of
$1.28 per share at any time until December 31, 2003. In consideration for
personal loans to RCI, Steve Caswell was issued 12,500 of these warrants to
purchase 12,500 shares of RCI common stock at an exercise price of $1.28 per
share at any time until December 31, 2003.
RCI also has a total of 1,000,000 additional warrants outstanding which
entitle their holders to purchase a total of 1,000,000 shares of RCI common
stock at an exercise price equal to 50% of the average of the last reported
sales price of RCI shares during the first 30 business days after the shares of
RCI first become publicly traded, provided that they become publicly traded on
or before December 31, 1998. If RCI becomes publicly traded on or before
December 31, 1998, these warrants are then exercisable for a period of 180 days
after the public trading commencement date. These 1,000,000 RCI warrants were
issued on February 8, 1995 in connection with the issuance of 8% convertible
promissory notes by Incomnet, Inc. on that date to finance its acquisition of a
controlling interest in RCI. See "Item 1. Business - Acquisition of Rapid Cast,
Inc." in the Company's Form 10-K for the fiscal year ending December 31, 1995.
SETTLEMENT OF RCI PATENT INFRINGEMENT CASE
On January 16, 1997, RCI completed the settlement of the lawsuit entitled
RONALD BLUM, O.D. VS. RAPID CAST, INC., ET AL. and the lawsuit has been
dismissed. In consideration for a total cash payment of $525,000 in cash to Dr.
Blum and the release by RCI of all claims which it may have had against Dr.
Blum, RCI received a release of all claims by Dr. Blum. See "Item 1. Legal
Proceedings - Patent Infringement Lawsuit" in the Company's Form 10-Q for the
fiscal quarter ending September 30, 1996.
RCI - LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
As permitted by the Delaware General Corporation Law (the "Delaware Law"),
RCI's Certificate of Incorporation includes a provision that eliminates, to the
maximum extent permitted by the Delaware Law, any director's personal liability
to RCI or its stockholders for monetary damages in respect of any breach by such
director of his fiduciary duty. The Delaware Law does not permit a director's
personal liability to be eliminated (i) for any breach of a director's duty of
loyalty to RCI or
-37-
its stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions, as provided
in Section 174 of the Delaware Law, or (iv) for any transaction from which the
director derived an improper personal benefit. In addition, as permitted by
Section 145 of the Delaware Law, the By-Laws of RCI provide that RCI shall
indemnify its directors and executive officers to the fullest extent permitted
by the Delaware Law, including those circumstances in which indemnification
would otherwise be discretionary, subject to certain exceptions. The By-Laws
also provide that RCI will advance expenses to directors and executive officers
incurred in connection with an action or proceeding as to which they may be
entitled to indemnification, subject to certain exceptions. RCI currently
carries director and officer liability insurance.
RCI has entered or will enter into indemnity agreements with each of its
directors and executive officers that provide the maximum indemnity allowed to
directors and executive officers by the Delaware Law and RCI's By-Laws, subject
to certain exceptions, as well as certain additional procedural protection. In
addition, the indemnity agreements provide generally that RCI will advance
expenses incurred by directors and executive officers in any action or
proceeding as to which they may be entitled to indemnification, subject to
certain exceptions.
RCI currently carries director and officer liability insurance.
RCI - ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
RCI is a Delaware corporation and thus subject to Section 203 of the
Delaware General Corporation Law ("Section 203"), which is generally viewed as
an anti-takeover statute. In general, Section 203 prohibits a Delaware
corporation from engaging in any "business combination" (as defined) with any
"interested stockholder" (as defined) for a period of three years following the
date that such stockholder became an interested stockholder, unless (i) prior to
such date, the board of directors of the corporation approved either the
business combination or the transaction which resulted in the stockholder
becoming an interested stockholder; (ii) upon consummation of the transaction
which resulted in the stockholder becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding those shares owned (a) by persons
who are directors and also officers and (b) by employee stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer;
or (iii) on or subsequent to such date, the business combination is approved by
the board of directors and authorized at an annual or special meeting
stockholders, and not by written consent, by the affirmative vote of at least
66-2/3% of the outstanding voting stock which is not owned by the interested
stockholder.
In general, Section 203 defines a "business combination" to include: (i)
any merger or consolidation involving the corporation and the interested
stockholder; (ii) any sale, transfer, pledge or other disposition involving the
interested stockholder of 10% or more of the assets of the corporation; (iii)
(subject to certain exceptions) any transaction which results in the issuance or
transfer by the corporation of any stock of the corporation to the interested
stockholder; (iv) any transaction involving the corporation which has the effect
of increasing the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder; or (v) the receipt
by the interested stockholder of the benefit of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the corporation. In
general, Section 203 defines an "interested stockholder" as (a) any entity or
person beneficially owning 15% or more of the outstanding voting stock of the
corporation or (b) any entity or person affiliated with or controlling or
controlled by such entity or person.
The existence of Section 203 would be expected to have the effect of
discouraging takeover attempts involving RCI, including attempts that might
result in a premium over the market price of RCI's common stock (if it is then
publicly traded).
-38-
USE OF PROCEEDS
The Company will not receive any net proceeds from the sale of the
Outstanding Shares or the Underlying Shares, if and when issued. The Company
would receive $1,386,750 of net proceeds from the exercise of the Warrants, if
and when they are exercised, and has received net proceeds of $1,990,000 from
the issuance of the Series A Preferred covered by this Prospectus. The amount
of net proceeds to be received from the sale of Shares by the Company is
uncertain and depends on (i) whether any Shares are sold and if so, how many
Shares are sold, (ii) the price at which Shares are sold through the Underwriter
in the NASDAQ over-the-counter market from time to time, (iii) the conversion
price of the Series A Preferred and whether Shares are needed to cover
conversion, and (iv) the amount of commissions and discounts paid to the
Underwriter in connection with the sale of the Shares. The net proceeds
received from the sale of the Shares and the exercise of the Warrants, if any,
will be used by the Company for general working capital purposes. See
"DESCRIPTION OF CAPITAL STOCK."
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Company's Common Stock is quoted on the NASDAQ Small Capital Market
System under the symbol "ICNT." The following table sets forth, for the
calendar quarters indicated, the actual high and low sale prices of the
Company's Common Stock as reported on the NASDAQ/Small Capital Market commencing
for the first quarter of 1994. The approximate number of record holders of
Common Stock on June 27, 1997 was 797.
HIGH LOW LAST SALE
---- --- ---------
1994
First Quarter 7.25 6.00 6.75
Second Quarter 11.12 6.37 9.75
Third Quarter 12.50 8.00 11.37
Fourth Quarter 14.62 9.94 13.25
1995
First Quarter 16.25 12.25 14.25
Second Quarter 15.87 11.25 15.25
Third Quarter 23.50 15.25 22.25
Fourth Quarter 11.25 2.50 4.56
1996
First Quarter 6.20 4.25 5.12
Second Quarter 6.25 4.37 4.75
Third Quarter 5.31 4.50 4.75
Fourth Quarter 4.75 4.12 4.43
1997
First Quarter 5.06 2.87 3.00
Second Quarter(a) 5.37 2.81 4.87
- ------------------------------
(a) Through June 27, 1997.
-39-
A recent closing sale price for the Common Stock as reported in
published financial sources is set forth on the cover page of this Prospectus.
There is no public trading market for the Warrants or the Series A Preferred nor
is one expected to develop. The Company intends to retain future earnings for
use in its business and does not anticipate paying any dividends on shares of
its Common Stock in the foreseeable future. Furthermore, pursuant to the
Certificate of Determination for the Series A Preferred, no cash dividends or
cash distributions may be made on the Company's Common Stock unless all
cumulative unpaid dividends on the Series A Preferred are paid.
CAPITALIZATION
The following table sets forth the actual capitalization of the
Company at March 31, 1997 and the capitalization of the Company reflecting
(i) the issuance of 372,500 Underlying Shares assuming the exercise of all
372,500 Warrants, (ii) the issuance of 467,385 Underlying Shares pursuant to the
conversion of 2,075 outstanding shares the Series A Preferred, and (iii) no
issuance of Shares.
March 31, 1997
--------------------------
Actual As Adjusted(1)
------ --------------
Long-Term Debt:(1) $ 0 $ 0
Minority Interest $ 0 $ 0
Stockholders' Equity (Deficiency)
Preferred Stock, no par value; 100,000 shares
authorized, no shares issued and outstanding 1,990,000 1,990,000
(2,075 as adjusted)
Common Stock, no par value; 20,000,000 shares $61,785,000 $63,171,000
authorized, 13,553,229 shares issued and
outstanding (14,393,114 as adjusted)(2)
Additional paid in capital 36,000 36,000
Retained earnings (accumulated deficit) (48,547,000) (48,547,000)
Treasury Stock (5,491,845) (5,491,845)
------------ ------------
Total stockholders' equity (deficiency) 9,772,155 11,158,155
------------ ------------
Total capitalization $ 9,772,155 $ 11,158,155
------------ ------------
------------ ------------
- ------------------------------
(1) The "as adjusted" column does not reflect the sale of any Shares through
the Underwriter because the price and amount of such sales, and the
underwriting commissions and discounts applicable to such sales, are too
uncertain at this time. The "as adjusted" column also assumes that shares
are needed to be issued in excess of the 467,385 Underlying Shares
reserved for issuance upon the conversion of the 2,075 outstanding
shares of Series A Preferred. The sale of Shares through the
Underwriter would increase the amount of stockholders' equity by the net
proceeds received by the Company from the sale, after the deduction of
underwriting commissions and discounts. The issuance of additional
shares upon the conversion of Series A Preferred, if necessary, would
not increase stockholders' equity. See "THE COMPANY - Issuance of
Convertible Preferred Stock."
(2) Assumes a total of 372,500 Underlying Shares of the Company's Common Stock
is issued pursuant to the exercise of the Warrants, and a total of 467,385
Underlying Shares of the Company's Common Stock is issued pursuant to the
conversion of 2,075 shares of the outstanding Series A Preferred (including
payment
-40-
of the 2% cumulative dividend in Common Stock). Includes $36,000 paid for
the Warrants. See "THE COMPANY - Settlement with RCI Parties."
The adjusted shares of Common Stock assume that 2,075 shares of Series A
Preferred are converted into Common Stock at an average conversion price of
$4.44 per share. The average conversion price may be less, depending on
the average bid price of the Company's Common Stock prior to the conversion
date. If the average conversion price of the Series A Preferred is less
than $4.44 per share, more dilution would be incurred by the existing
Common Stockholders. See "THE COMPANY - Issuance of Convertible Preferred
Stock" and "RISK FACTORS - Possible Adverse Effects of Issuance of
Preferred Stock."
DILUTION
As of March 31, 1997, the net tangible book value of the Company was
approximately $9,772,000 or approximately $.72 per share of Common Stock. Net
tangible book value per share consists of total assets less intangible assets
and liabilities, divided by the total number of shares of Common Stock
outstanding. Without giving effect to any changes in such net tangible book
value after March 31, 1997, other than to give effect to the exercise of the
372,500 Warrants and the conversion of the 2,075 outstanding shares of Series A
Preferred at an average conversion price of $4.44 per Underlying Share, the PRO
FORMA net tangible book value at March 31, 1997 would have been $11,158,155 or
approximately $.78 per share. Thus, as of March 31, 1997, the net tangible book
value per share of Common Stock owned by the Company's current stockholders
would have increased by approximately $.06 without any additional investment on
their part. The holders of the 360,000 Warrants will incur an immediate
dilution of approximately $2.97 per share from their Warrant exercise price.
The holders of the 12,500 Warrants will incur an immediate dilution of
approximately $2.16 per share from their Warrant exercise price. The holders of
the Series A Preferred will incur an immediate average dilution of approximately
$3.66 per share from their average conversion price, assuming a maximum average
conversion price of $4.44 per share. "Dilution" means the difference between
the public offering price and the PRO FORMA net tangible book value per share
after giving effect to the offering. Holders of the Common Stock may be
subjected to additional dilution if any additional securities are issued as
compensation or to raise additional financing. The following table illustrates
the dilution which investors participating in this offering will incur and the
benefit to current stockholders as a result of this offering.
EXERCISE OF EXERCISE OF CONVERSION OF SERIES A
360,000 WARRANTS 12,500 WARRANTS PREFERRED SHARES
---------------- --------------- -----------------------
Price per share(1) $3.75 $2.94 $4.44
Net tangible book value per share $ .72 $ .72 $ .72
Increase in net tangible book
value per share attributable to
shares offered hereby $ .06 $ .06 $ .06
Pro forma net tangible book value
per share after offering $ .78 $ .78 $ .78
Dilution of net tangible book
value per share to purchasers in
this offering $2.97 $2.16 $3.66
(1) The price per share represents the exercise price of the Warrants in the
case of the Warrants, and the maximum average conversion price in the case
of the Series A 2% Convertible Preferred Stock. If the average conversion
price is less than $4.44 per share, then the average dilution to the
holders of the Series A Preferred would be less than $3.66 per share.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
The selected consolidated financial information for the Company
presented under the captions "Statement of Operations Data" and "Balance
Sheet Data" for, and as of the end of, each of the years in the five-year
period ended December 31, 1996, and the three months ended March 31, 1997, is
derived from the Company's Consolidated Financial Statements. The Company's
Consolidated Financial Statements as of December 31, 1994, 1995 and 1996 and
for each of the years in the three-year period ended December 31, 1996, and
the report thereon, and as of March 31, 1996 and March 31, 1997 and for the
three months ended March 31, 1996 and March 31, 1997, have been incorporated
in this Prospectus by reference. This selected consolidated financial
information should be read in conjunction with the Company's Consolidated
Financial Statements and the related notes thereto included in the Company's
1996 Form 10-K and the Company's Form 10-Q for the fiscal quarter ended March
31, 1997, incorporated herein by reference, and with "MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS" in this
Prospectus.
-41-
INCOMNET, INC.
STATEMENT OF OPERATIONS DATA:
Three Months Ended March 31 Year Ended December 31
------------------------------ ---------------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Revenues $31,169,000 $24,399,000 $106,905,000 $86,564,917 $46,815,057 $11,298,972 $5,534,874
Income (Loss) before
income taxes, extra-
ordinary items and
minority interest 1,019,000 31,309 (51,517,000) 957,044 4,000,242 (1,606,844) (2,264,597)
Income (Loss)
before extra-
ordinary item and
minority interest 1,019,000 62,771 (43,705,000) 856,543 3,999,187 (1,606,844) (2,461,697)
Minority Interest 0 480,345 6,906,000 509,482 - - -
Net Income
(Loss) 1,010,000 417,574 (37,676,000) 1,366,025 4,071,194 (948,769) (2,021,333)
Net Income (Loss)
per share before
extraordinary items .07 .03 (2.75) 0.11 0.42 (0.20) (0.34)
Net Income (Loss)
per share .07 .03 (2.82) 0.11 0.42 (0.12) (0.28)
Cash dividends per
common share 0 0 0 0 0 0 0
Weighted average
number of shares 13,550,000 13,294,024 13,370,000 12,706,401 9,593,207 8,183,877 7,189,671
BALANCE SHEET DATA:
At March 31 At December 31
-------------------------- --------------------------------------------------------
1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
Total assets $38,222,000 $40,587,000 $74,105,629 $26,158,346 $8,665,839 $6,744,944
Long-term obligations 0 1,040,000 8,459,772(1) 900 20,000 176,000
- ------------------------------
(1) These long term obligations related to the net deferred tax
liability arising from the nondeductibility of the RCI patent rights,
which were eliminated when the RCI patent amortization schedule was
accelerated and the related intangible asset was written off entirely.
-42-
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
CONSOLIDATED RESULTS OF OPERATIONS
GENERAL
Gross revenues from NTC's operations have been increasing steadily since
the Company acquired a controlling interest and commenced advancing working
capital to NTC in early 1992. Upon acquiring control of NTC, the Company
implemented a new marketing plan for NTC pursuant to which compensation payments
to the independent marketing representatives were calculated and paid on a more
timely basis. NTC uses a network marketing program of independent
representatives to sell its telecommunications-related services to retail
customers. The growth in NTC's telecommunications-related revenues is directly
tied to its network marketing program. NTC's independent representatives
typically purchase materials, training and services from NTC to assist them in
selling new retail customers and enrolling other representatives in the NTC
program. NTC pays the independent representatives a residual monthly commission
on the telecommunications revenue. In addition, the network marketing program
pays various bonuses and overrides when and if new representatives obtain a
minimum number of new telephone customers, typically 10, within a 30 to 60 day
period. This program has been designed to bring NTC new retail telephone
customers even if little or no growth occurs in the marketing program revenues
itself. The new telecommunications revenue generally lags the marketing program
revenues by one to six weeks. When the marketing program revenues increase, an
increase in NTC's telecommunications-related revenues is expected to follow.
As part of NTC's new management program, the billing system was enhanced to
allow for multiple billing cycles each month. An arrangement has also been made
to use local exchange carriers with the goal of reducing billing costs,
improving collections and terminating telephone service more rapidly when
invoices are in arrears. See "RISK FACTORS - Risk of Billing Through Local
Exchange Carriers." The expected savings from utilizing local exchange carriers
to bill and collect for NTC will be realized if the local exchange carriers
successfully and expeditiously collect the invoices on behalf of NTC. While a
modest improvement in collections has been experienced through local exchange
carriers, NTC still establishes significant reserves for its direct-billed Dial-
one receivables. NTC believes that the pre-paid calling card products now
offered by it significantly reduce losses due to uncollectible accounts
receivable.
NTC's long distance telephone services and marketing programs subject the
Company to the regulatory control of the Federal Communications Commission and
various state regulatory agencies, including but not necessarily limited to
state Public Utility Commissions or equivalent, state attorney general offices,
and state consumer relations and protection offices. From time-to-time in the
normal course of business, NTC receives inquiries, requests and demands from
such agencies for information and action. Management does not believe any such
inquiries, requests or demands received by the Company to date have had, or are
reasonably likely to have in the future, any material impact on NTC's business.
The Company's current emphasis with respect to NTC is to continue to ensure
that (i) processing capacity is maintained and increased to handle growing
sales, (ii) the independent marketing force continues to expand, resulting in a
growing base of telephone customers, and (iii) the business is operated
efficiently with reliable reporting. While the improved computer processing
system is expected to reduce operating expenses as a percentage of gross
revenues due in part to increased speed and decreased errors, on-going costs in
1997 for expansion of NTC's infrastructure and more emphasis on local exchange
carrier billing may result in expenses in 1997 which are comparable to or higher
than expenses in 1996 and 1995, as a percentage of gross revenues, depending
upon the rate of NTC's growth.
On May 2, 1997, the Company acquired 100% of the total issued and
outstanding capital stock of California Interactive Computing, Inc. The
financial condition and operating results of this 100% owned subsidiary will
commence being reflected in the consolidated financial condition and
operating results of the Company in its Form 10-Q to be filed for
the quarter ended June 30, 1997. See the Company's Report on Form 8-K, dated
May 2, 1997.
-43-
THREE MONTHS ENDED MARCH 31, 1997 COMPARED TO THREE MONTHS ENDED
MARCH 31, 1996
SALES. First quarter, 1997 sales of $31.2 million increased 28% over
the first quarter, 1996 sales of $24.4 million. The majority of this
increase was attributable to NTC's sales increase to $30.8 million from $23.0
million in the three months ending March 31, 1997 as compared to the same
period in 1996, respectively. The following table summarizes the Company's
sales performance by subsidiary and segment during the comparable first
quarters in 1997 and 1996:
Subsidiary Segment $ In Millions
1997 1996
------- -------
NTC Telephone (telecommunications services) $25.1 $20.3
NTC Telephone (marketing programs) 5.7 2.7
RCI Optical ---- 1.1
AutoNETWORK Network 0.4 0.3
------- -------
TOTAL COMPANY SALES $31.2 $24.4
------- -------
------- -------
COST OF SALES. Total Company cost of sales increased to $21.5 million or 69% of
sales during the quarter ending March 31, 1997 versus $15.9 million or 65% of
sales during the comparable prior year quarter. The quarter-to-quarter increase
in cost of sales resulted largely from increasing carrier costs associated with
increased telephone service sales by NTC.
The following table summarizes the Company's changes in three major cost
components for the first quarter of 1996 and 1997:
$ In Millions
1997 1996
---- ----
Commissions paid to NTC independent sales representatives $ 5.4 $ 3.5
Carrier costs for NTC's long distance telephone 15.9 12.2
AutoNETWORK .2 .2
------ ------
TOTAL COST OF SALES (excluding $0.7 million of ------ ------
costs relating to RCI in 1996) $ 21.5 $ 15.9
------ ------
------ ------
NTC's total commission expense increased to $5.4 million in the first
quarter of 1997 compared to $3.5 million in the same quarter of 1996. NTC's
carrier costs to deliver long distance telephone service to its telephone
customers increased to $15.9 million in the first quarter of 1997 compared to
$12.2 million in the first quarter of 1996. This increase in carrier costs
reflects the year-to-year growth in telephone sales, although these costs have
grown at a slower pace than sales, thus reflecting improvements in overall
telephone gross profits. The third cost component shown in the table above is
the AutoNETWORK division's costs of providing communications network products
and services.
GENERAL AND ADMINISTRATIVE. Total general and administrative costs decreased to
$6.2 million or 20% of sales in the quarter ending March 31, 1997 compared to
$6.3 million or $26% of sales in the same prior year quarter. General and
administrative costs generally include the costs of employee salaries, fringe
benefits, supplies, and related support costs which are required in order to
provide such operating functions as customer service, billing, marketing,
product development, information systems, collections of accounts receivable,
and accounting. The reduction in the current quarter primarily reflects the
elimination of Rapid Cast, Inc.
NTC's general and administrative costs decreased to 18% of sales in the first
quarter of 1997 from 21% of sales in the first quarter of 1996. This reduction
is caused largely by increases in sales volume without a corresponding increase
in the overhead structure. During 1996 NTC made significant expenditures in
building its infrastructure to support further sales growth.
DEPRECIATION AND AMORTIZATION. Total Company depreciation and amortization
expense was $665,000 in the first quarter of 1997 verses $429,000 in the first
quarter of 1996. This increase was caused by continuing investment by NTC in
computer hardware and software, furniture and equipment, and leasehold
improvements required to support its anticipated expansion in sales.
BAD DEBT EXPENSE. Total Company bad debt expense increased to $1.7 million in
the first quarter of 1997 compared to $1.1 million in the same prior year
quarter. The quarter-to-quarter increase in bad debt was caused primarily by
increases in sales volumes.
ACQUISITION COSTS AND EXPENSES. Acquisition costs decreased to $74,000 during
the first quarter of 1997 compared to $583,000 during the first quarter of 1996.
This decrease was primarily caused by writing off in the third and fourth
quarters of 1996 the total patent rights acquired when the Company acquired 51%
of RCI in 1995. Acquisition costs and expenses in the first quarter of 1997
were related to the acquisition of NTC in 1992.
MINORITY INTEREST. Beginning on July 1, 1995, the Company converted from the
equity method to the consolidated method of accounting for its 51% ownership in
RCI. As a result, $840,345, or 49% (the "minority interest") of RCI's losses
during the three months ending March 31, 1996, has been eliminated from the
Company's "Consolidated Statements of Operations" for 1996 and, therefore, no
RCI revenues or expenses are recognized after that date. On January 1, 1997,
the Company converted back to the equity method of accounting.
NET INCOME. Total Company net income increased to $1 million or 3.2% of sales
in the first quarter of 1997 as compared to net income of $417,000 or 1.7% of
sales in the first quarter ended March 31, 1996. The quarter-to-quarter
increase in net income resulted from no longer regarding losses incurred at
Rapid Cast, Inc.
-44-
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
AND YEAR ENDED DECEMBER 31, 1994
SALES. For 1996, 1995 and 1994, the Company's net sales totaled
approximately $106.9 million, $86.6 million and $46.8 million, respectively.
The increases in sales in 1996 compared with 1995 and 1995 compared with 1994
were attributable principally to increased sales at NTC. The following table
summarizes the Company's year-to-year sales performance by subsidiary and
segment:
Subsidiary Segment $ In Millions
1996 1995 1994
---- ---- ----
NTC Telephone (telecommunications services) $ 83.7 $70.0 $34.2
NTC Telephone (marketing programs) 17.1 13.1 11.4
RCI Optical 4.7 2.0 ---
AutoNETWORK Network 1.4 1.5 1.2
--------------------------
TOTAL COMPANY NET SALES $106.9 $86.6 $46.8
--------------------------
--------------------------
NTC's net sales increase was driven largely by continued expansion of the
customer base for its telecommunications services. As a result of this
continuing expansion, NTC's telecommunication service revenues represented
83.0%, 84.2% and 75.0% of NTC's total revenues for 1996, 1995 and 1994,
respectively, with the remaining 17.0%, 15.8% and 25.0% generated by sales of
NTC's marketing programs for 1996, 1995 and 1994, respectively. Revenues from
the optical segment may decline in 1997 because the Company's percentage
ownership in RCI is lower than in 1995 and 1996, and machine orders at RCI have
declined while RCI implements design modifications and improvements. See
"Item 1. Business - Rapid Cast, Inc. - Technical Overview of the Rapid Cast
LenSystem" in the Company's 1996 Form 10-K.
COST OF SALES. Total Company cost of sales for 1996, 1995 and 1994 were
approximately $68.6 million, $57.9 million and $31.2 million, respectively. The
increases in cost of sales were attributed principally to the increase in
carrier costs associated with increased telephone service sales by NTC and a
volume related rise in RCI cost of sales. Gross margin when stated as a
percentage of net sales was 35.9%, 33.1% and 33.3% for 1996, 1995 and 1994,
respectively. The increase in gross margin in 1996 was attributable principally
to reductions in NTC's telecommunication service cost of sales resulting from:
(1) lower long-distance transport costs charged by NTC's carriers, and (2)
continuing improvements in the mix of sales in the higher profit product lines.
The following table summarizes the Company's year-to-year changes in three major
cost components:
$ In Millions
1996 1995 1994
---- ---- ----
Carrier costs for NTC's long distance telephone service $44.7 $40.4 $21.3
Commissions paid to NTC independent sales representatives 18.0 14.2 7.7
All other costs of sales 5.9 3.3 2.2
-------------------
TOTAL COMPANY NET SALES $68.6 $57.9 $31.2
-------------------
-------------------
NTC's total commission expenses for 1996, 1995 and 1994 were $18.0 million,
$14.2 million and $7.7 million, respectively. The increases were attributed
principally to the residual monthly sales commissions and various bonuses and
overrides paid to sales representatives on increased marketing and telephone
service revenues.
The third cost component shown in the table above is "all other costs of
sales" which represents: (1) NTC's costs of producing sales materials for its
independent sales representatives, (2) RCI's costs of producing optical systems
and ancillary goods, and (3) AutoNETWORK's costs of providing communications
network products and services.
GENERAL AND ADMINISTRATIVE. Total general and administrative costs for 1996,
1995 and 1994 were approximately $36.9 million, $19.8 million and $9.4 million,
respectively. General and administrative expenses represented 34.57%, 22.9% and
20.2% of net sales in 1996, 1995 and 1994, respectively. General and
administrative costs generally include the costs of employee salaries, fringe
benefits, supplies, and related support costs which are required in order to
provide such operating functions as customer service, billing, marketing,
product development, information systems, collections of accounts receivable,
and accounting.
NTC's general and administrative costs increased to 24.5% of sales in 1996 from
20.3% of sales in 1995. This increase was due principally to: (1) increases in
fees paid to local exchange carriers (LECs) to process NTC's billing and
collection of its LEC-billed long distance telephone service, and (2) increases
in compensation and fringe benefits expended as NTC continues to build
infrastructure to support anticipated future sales growth. RCI's general and
administrative costs continue to reflect the startup nature of its operations.
DEPRECIATION AND AMORTIZATION. The Company's depreciation and amortization
expense totaled $2.0 million, $1.0 million and $0.4 million for 1996, 1995 and
1994, respectively. These increases were caused by the continuing investment by
NTC in computer hardware and software, furniture and equipment, and leasehold
improvements required to support its expansion in sales.
BAD DEBT EXPENSE. The Company's bad debt expense totaled $6.1 million, $4.1
million and $1.8 million for 1996, 1995 and 1994, respectively. Bad debt
expense represented 5.7%, 4.8% and 3.8% of net sales in 1996, 1995 and 1994,
respectively. The increase in bad debt was caused primarily by increased
provisioning of NTC's LEC billed receivables which currently carry a higher than
estimated bad debt provision, and direct billed collection agency write-offs.
OTHER (INCOME) AND EXPENSE. The Company's other (income) and expense totaled
$3.4 million, $1.0 million and $(0.3) million for 1996, 1995 and 1994,
respectively. The increase in 1996 was attributable in large part to settlement
costs of $2.0 million associated with claims by officers against the Company.
The increase in 1995 was attributed principally to: (1) a $0.4 million
settlement with convertible noteholders relating to the acquisition of RCI, (2)
a $0.2 million settlement with a former Company officer, and (3) a $0.3 million
write-off of marketable securities by NTC.
CHARGE FOR ASSET IMPAIRMENT. The charge for asset impairment totaled $39.1
million for 1996 for the devaluation of the Company's investment in RCI. There
was no impairment in 1995 and 1994.
MINORITY INTEREST. Beginning on July 1, 1995, the Company converted from the
equity method to the consolidated method of accounting for its 51% ownership in
RCI. As a result, 49% of RCI's losses from July 1 through December 31, 1995
(the "minority interest") were eliminated from the Company's "Consolidated
Statements of Operations" for 1995.
NET INCOME (LOSS). The Company's net income (loss) totaled ($37.7) million,
$1.4 million and $4.1 million for 1996, 1995 and 1994, respectively. Net income
(loss) represented (35.2%), 1.6% and 8.7% of net sales for 1996, 1995 and 1994,
respectively. The decreases were attributed principally to: (1) higher losses
at RCI in 1996 due to the devaluation of patent rights and significantly
increased operating costs incurred to build infrastructure for future potential
sales growth, and (2) higher losses at the Company's headquarters which were
caused by the establishment of reserves for devaluation of the Company's
investment in RCI and for settlement costs.
EMPLOYMENT. Employment of the Company totaled 288 at December 31, 1996, not
including independent sales representatives of NTC, who are classified as
independent contractors and not as employees of the Company.
LIQUIDITY AND CAPITAL RESOURCES
AS OF MARCH 31, 1997
GENERAL. Overall, the Company achieved slightly negative cash flows of
$50,000 during the first three months of 1997 resulting from negative cash
flows from operations of $971,000 which were almost entirely offset by
positive cash flows from investing of $4.6 million, less negative cash flow
from financing activities of $3.7 million as discussed below:
CASH FLOW FROM OPERATIONS. The Company generated $971,000 in negative cash flow
from operations during the first three months of 1997, compared to $1.6 million
in positive cash flow from operations during the prior year's comparable period.
This year-to-year decrease in cash flow from operations resulted primarily from:
(1) a $1.1 million increase in profits adjusted for non-cash expenses, offset by
(2) a $1.1 million increase in accounts receivable, and (3) a $2.3 million
decrease in accounts payable. Much of the changes in operating assets arise
from the change in accounting for the Rapid Cast subsidiary, which was presented
on the consolidated basis at December 31, 1996, but because the Company's
ownership diminished to approximately 35% during the first quarter of 1997, was
presented on the equity method of accounting at March 31, 1997.
CASH FLOW FROM INVESTING. The Company generated positive cash flows from
investing activities of $4.6 million in the first three months of 1997 and
negative cash flows of $2.2 million in the first three months of 1996.
CASH FLOW FROM FINANCING. Positive cash flows from investing activities of $4.6
million were offset by negative cash flow from financing activities of $3.7
million during the first three months of 1997, due principally from the change
in method of accounting for the Rapid Cast subsidiary.
The Company had material commitments for capital expenditures of $1.5
million in tenant improvements for its Honolulu, Hawaii office space at December
31, 1996, and expects to continue making improvements to the NTC headquarters
building and purchasing additional equipment commensurate with the expansion of
its business. During 1996, the Company had capital expenditures of $7.2 million
for plant and equipment.
LITIGATION. The Company is subject to pending litigation and an investigation
by the Securities and Exchange Commission. Management is not yet able to
predict the impact of the pending litigation on its financial condition and the
results of its operations. Management does not believe that the investigation
by the Securities and Exchange Commission will result in a material impact on
the Company's financial condition or results of operations. See "Part II. Item
1. Legal Proceedings" in the Company's Form 10-Q for the quarter ended March 31,
1997.
LIQUIDITY AND CAPITAL RESOURCES
AS OF DECEMBER 31, 1996
GENERAL. Overall, the Company achieved slightly positive cash flows of
$0.6 million during 1996 resulting from positive cash flows from operating
activities of $3.0 million and from financing activities of $5.2 million,
which were almost entirely offset by negative cash flows from investing
activities of $7.6 million. The Company may need to raise additional capital
in 1997 to fund settlement costs relating to pending litigation or to make a
business acquisition, although specific needs had not yet been identified as
of December 31, 1996. Pursuant to its management incentive agreement with
NTC, the Company receives cash distributions from NTC on a periodic basis,
which are scheduled to be made until December 31, 1997. See "Item 1.
Business - National Telephone & Communications, Inc. - Management Incentive
Agreement" in the Company's 1996 Form 10-K. The Company does not expect to
have to make loans to RCI in 1997, and RCI's capital needs in the short-term
have been met through its private placement of preferred stock and warrants
in January 1997. See "Item 1. Business - The Recent Capitalization of RCI"
in the Company's 1996 Form 10-K. The Company may, however, be presented with
an option to purchase additional convertible preferred stock in RCI in July
1997 if J.P. Morgan or The Clipper Group do not exercise their options to
purchase up to $5,000,000 of additional preferred stock. RCI is incurring
net operating deficits and will need additional capital to continue its
business. If the Company elects to contribute additional capital to RCI, it
will need to raise funds through the sale of stock or otherwise. There is no
assurance that it will be able to raise such capital or financing, or that
its ownership of RCI will not be further diluted. NTC is expected to have
sufficient capital or financing to fund its requirements in 1997, including
funds required for the establishment of its branch marketing offices, one of
which is currently being built in leased premises in Honolulu, Hawaii. There
is no assurance that the cash distributions by NTC to the Company or the
cash flow from AutoNETWEORK will be sufficient to meet the Company's future
funding requirements, or that RCI or NTC will have sufficient capital or
financing to meet their needs.
CASH FLOW FROM OPERATIONS. Net cash provided by operating activities of $3.0
million in 1996 was primarily attributable to the operating loss for 1996 of
$37.7 million and non-cash items, principally from a devaluation of the
Company's investment in RCI, of $39.1 million, as well as depreciation and
amortization of $4.3 million, and changes in operating assets and liabilities of
$11.7 million. With regard to the collection of accounts receivable, the
Company increased its allowance for doubtful accounts to 13.2% of gross
receivables as of December 31, 1996 compared to 8.0% of gross receivables as of
December 31, 1995. This increased provisioning reflects NTC's reserves for all
direct-billed Dial-one receivables which have been submitted to collection
agencies for collection, and a modest improvement in collection rates for
LEC-billed and calling card products.
CASH FLOW FROM INVESTING. Net cash used in investing activities of $7.6 million
in 1996 was attributable principally to the Company's additions to property,
plant and equipment of $7.2 million and additions to patents of $0.7 million.
CASH FLOW FROM FINANCING. Net cash provided by financing activities of $5.2
million in 1996 was attributable principally to changes in shorter-term debt of
$2.9 million, proceeds of $2.3 million from the issuance of preferred stock, and
additions to long-term debt of $1.3 million, partially offset by a reduction of
long term debt of $1.8 million. In addition, positive cash flow resulted
primarily from RCI entering into various loan agreements to finance the building
of infrastructure to support its anticipated future sales growth. In September
1996, the Company also raised $0.4 million from the sale of 365 shares of Series
A 2% Convertible Preferred Stock, and raised an additional $2.1 million in
October 1996 through the placement of additional shares of Series A 2%
Convertible Preferred Stock. The Company paid aggregate referral fees equal to
approximately 5% of the capital raised from the placement of the Series A 2%
Convertible Preferred Stock. Cash paid to reduce debt totaled $1.2 million,
$0.0 million and $0.3 million during 1996, 1995 and 1994, respectively.
The Company had material commitments for capital expenditures of $1.5
million in tenant improvements for its Honolulu, Hawaii office space at December
31, 1996, and expects to continue making improvements to the NTC headquarters
building and purchasing additional equipment commensurate with the expansion of
its business. During 1996, the company had capital expenditures of $7.2 million
for plant and equipment.
At December 31, 1996, the Company had net operating loss carryforwards for
federal income tax purposes of approximately $22.6 million, which are expected
to be available to offset taxable income for the next several years.
LITIGATION. The Company is subject to pending litigation and an investigation
by the Securities and Exchange Commission. Management is not yet able to
predict the impact of the pending litigation on its financial condition and
results of operations. Management does not believe that the investigation by
the Securities and Exchange Commission will result in a material impact on the
Company's financial condition or results of operations. See "Item 3. Legal
Proceedings" in the Company's 1996 Form 10-K.
-50-
LIQUIDITY AND CAPITAL RESOURCES
AS OF DECEMBER 31, 1995.
For the year ended December 31, 1995, the Company had a net profit
of $1,366,025 and, at that date, current assets exceeded current liabilities
by $1,440,515. Since the Company acquired a controlling interest in NTC in
early 1992, the Company's capital needs have primarily been satisfied from
outside sources such as the private placement of securities, the exercise of
warrants and options, and loans and bank credit lines guaranteed by its
principal shareholders. Cash flow from operations did not provide net
working capital to the Company during the period from February 1992 to May
1994. While cash flow from operations on a consolidated basis has generally
been positive since June 1994, the increasing capital needs of RCI and legal
costs may require the Company to raise additional capital from outside
sources in the future.
The Company had net working capital of $1,440,515 at December 31, 1995,
compared to net working capital of $8,798,793 at December 31, 1994. During
1995, net cash flow from operations was $1,378,839 compared to net cash flow
from operations of $3,083,887 in 1994.
During 1995, the Company's allowance for doubtful accounts increased to
20.6% of gross accounts receivable from 15.1% in the prior year. This increased
provisioning related primarily to slower collections of NTC's direct-billed and
LEC-billed Dial-one products which was partially offset by improved collections
of NTC's calling card business.
During 1995, the Company's cash requirements were met through a combination
of a cash flow from operations, exercise of warrants to purchase the Company's
common stock and private placements of its Common Stock. In 1995, the Company
raised $29,058,773 in either private placements or from the exercise of
warrants. On February 5, 1996, Melvyn Reznick, the President and a director of
the Company, personally guaranteed and arranged for a $500,000 bank line of
credit for the Company, which was eventually expanded to $700,000. Mr. Reznick
also loaned the Company an additional amount of approximately $320,000.
The Company had no material commitments for capital expenditures at
December 31, 1995, but does expect to continue expanding the NTC headquarters
building and purchasing additional equipment commensurate with the requirements
of its customer base. During 1995, the Company had capital expenditures of
$7,389,419 for plant and equipment.
At December 31, 1995, the Company had net operating loss carryforwards for
federal income tax purposes of approximately $16,800,000, which are expected to
be available to offset taxable income in future years. The Company and its
subsidiaries are engaged in legal proceedings where the ultimate outcome cannot
presently be determined. Furthermore, the Company is subject to an
investigation by the Securities & Exchange Commission. Management is not yet
able to predict the impact of the pending litigation on its financial condition
and results of operations. Management does not believe that the investigation
by the Securities & Exchange Commission will result in a material impact on the
Company's financial condition or results of operations. See "Item 3. Legal
Proceedings" in the Company's 1995 Form 10-K.
-51-
PRINCIPAL STOCKHOLDERS
The following table sets forth information concerning the beneficial
ownership of the Company's Common Stock as of June 27, 1997. Persons and
groups named in the table represent (i) each person known by the Company to own
beneficially more than 5% of the Company's Common Stock, (ii) each director of
the Company or its NTC subsidiary, (iii) each executive officer of the Company
or its NTC subsidiary, and (iv) all directors and executive officers of the
Company and its NTC subsidiary as a group.
NAME AND ADDRESS OF AMOUNT AND NATURE OF PERCENTAGE OF SHARES OF
BENEFICIAL OWNER BENEFICIAL OWNERSHIP(1) COMMON STOCK OUTSTANDING(8)
- ------------------- ----------------------- ---------------------------
Melvyn Reznick 305,300(2) 2.09%
21031 Ventura Boulevard
Suite 1100
Woodland Hills, CA 91364
Sam D. Schwartz 1,968,610(3) 13.51%
16032 Valley Meadow Place
Encino, CA 91364
Nancy Zivitz 729,300(4) 5.0%
7234 Silverbell Drive
Sarasota, Florida 34241
Albert Milstein 125,000(5) 0.86%
21031 Ventura Boulevard
Suite 1100
Woodland Hills, CA 91364
Howard Silverman 35,000(6) 0.24%
21031 Ventura Boulevard
Suite 1100
Woodland Hills, CA 91364
Edward R. Jacobs 0 0.0%
2801 Main Street
Irvine, CA 92715
Stephen A. Caswell 20,000(7) 0.14%
21031 Ventura Boulevard
Suite 1100
Woodland Hills, CA 91364
James R. Quandt 0 0%
2801 Main Street
Irvine, California 92715
Victor C. Streufert 0 0%
2801 Main Street
Irvine, California 92715
Michael J. Keebaugh 0 0%
2801 Main Street
Irvine, California 92715
Deborah A. L. Chuckas 0 0%
2801 Main Street
Irvine, California 92715
Louis W. Cheng 0 0%
2801 Main Street
Irvine, California 92715
Jerry C. Buckley
25572 Avenue Stanford
Valencia, California 91355 0 0%
Eric Hoffberg
25572 Avenue Stanford
Valencia, California 91355 0 0%
All directors and officers as 1,214,600 8.4%
a group (13 persons)
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- ------------------------------
(1) See the Company's Proxy Statement for the 1997 Annual Meeting of the
Shareholders for additional information regarding outstanding stock options
and warrants to purchase the Company's Common Stock.
(2) Includes stock options to purchase 25,000 shares at an exercise price of
$4.87 per share, exercisable at any time until February 28, 2001, stock
options to purchase 25,000 shares at an exercise price of $4.87 per share,
exercisable at any time until May 31, 2001, stock options to purchase
25,000 shares at an exercise price of $4.87 per share, exercisable at any
time until August 31, 2001, stock options to purchase 25,000 shares at an
exercise price of $4.87 per share exercisable at any time until November
30, 2001, and stock options to purchase 150,000 shares at an exercise price
of $4.37 per share, exercisable at any time until April 5, 2001 with
respect to 100,000 of those options, February 28, 2002 with respect
to 25,000 of those options, and May 31, 2002 with respect to 25,000
of those options. Does not include stock options to purchase 200,000
shares at an exercise price of $4.87 per share, which do not vest
until RCI achieves certain financial performance goals, and stock options
to purchase 50,000 shares at an exercise price of $4.37 per share, which
do not vest until RCI becomes a public company. See "Ratification of 1996
Stock Option Program for Directors, Officers and Key Consultants" in the
Company's Proxy Statement for its 1996 Annual Meeting of the Shareholders.
(3) Excludes 90,000 shares owned by Rita L. Schwartz, which are her sole and
separate property, in which Mr. Schwartz disclaims any beneficial interest.
Includes 90,000 shares acquired upon the conversion of 8% convertible
promissory notes. Does not reflect the anticipated tender by Mr. Schwartz
of 1,047,966 shares of the Company's Common Stock to the Company as part
of his disgorgement of short swims profits to the Company pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as amended, in
compliance with the court order issued on June 9, 1997 in the lawsuit
MORALES VS. INCOMNET, INC. AND SAM SCHWARTZ. See "THE COMPANY - Status
of Section 16(b) Action."
(4) Includes 644,300 shares owned by Clarence R. Zivitz, Nancy Zivitz' husband,
and stock options to purchase 85,000 shares owned by Nancy Zivitz, a member
of the Company's Board of Directors, 50,000 of which have an exercise price
of $4.37 per share and 35,000 of which have an exercise price of $4.25 per
share. The stock options are exercisable as follows: 25,000 at any time
until February 28, 2001, 25,000 at any time until January 1, 2002, and
35,000 at any time until January 22, 2002.
(5) Includes stock options to purchase 25,000 shares at an exercise price of
$4.37 per share exercisable at any time until April 5, 2001, stock options
to purchase 25,000 at an exercise price of $4.37 per share exercisable at
any time until January 1, 2002, and stock options to purchase 35,000 shares
at an exercise price of $4.25 per share exercisable at any time January 22,
2002.
(6) Reflects 35,000 stock options to purchase 35,000 shares of the Company's
Common Stock at an exercise price of $4.25 per share, exercisable at any
time until January 22, 2002.
(7) Does not include stock options to purchase 50,000 shares at an exercise
price of $4.37 per share, which do not vest until RCI achieves certain
financial performance goals, and stock options to purchase 40,000 shares at
an exercise price of $4.25 per share, exercisable at any time until January
22, 2002, which are pledged to the Company as additional collateral for a
nonrecourse loan previously made to Mr. Caswell. See "THE COMPANY - Grant
of Stock Options by the Company."
(8) Assumes 14,530,729 shares outstanding, including 1,150,000 shares issuable
upon the exercise of stock options and warrants which have vested, but
which do not include any Shares or Underlying Shares.
Based upon the Company's review of Forms 3, 4 and 5 and any amendments
thereto furnished to the Company in compliance with Section 16 of the
Securities Exchange Act of 1934, as amended, all of such Forms were filed on
a timely basis by such reporting persons, other than: (1) a report on Form 4
due from Joel W. Greenberg, the Company's former Chairman of the Board on or
before May 10, 1996 with respect to 25,000 stock options which vested on
April 5, 1996, (2) certain prior officers of National Telephone &
Communications, Inc. were late in their Form 3 filings when they became
executive officers
-53-
in February 1996, and a prior director of that subsidiary is late in Form 4
and Form 5 filings for 1995, but the Form 3 filings have been brought current,
and (3) reports on Form 4 and Form 5 of transactions occurring from January
1993 until July 1995 were reported late by Sam D. Schwartz, the Company's
former Chairman, President and Chief Executive Officer.
DESCRIPTION OF CAPITAL STOCK
The following summaries of certain provisions of the Articles of
Incorporation, as amended, and Bylaws of the Company do not purport to be
complete and are qualified in their entirety by reference to such instruments,
each of which is incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part. See "AVAILABLE INFORMATION."
GENERAL
The Company's authorized capital stock consists of 20,000,000 shares of
Common Stock and 100,000 shares of Preferred Stock, without par value. As of
June 27, 1997, there were 13,553,229 shares of the Company's Common Stock
outstanding, excluding any Shares or Underlying Shares issuable upon the
exercise of Warrants or the conversion of outstanding Series A Preferred. As
of June 27, 1997, 2,440 shares of the Company's Preferred Stock were issued and
outstanding and no Common Stock or Preferred Stock was held as treasury stock.
See "THE COMPANY - Issuance of Convertible Preferred Stock."
COMMON STOCK
DIVIDENDS. Subject to the rights of holders of the Company's Preferred
Stock, if any, to receive certain dividends prior to the declaration of
dividends on shares of the Company's Common Stock, when and as dividends are
declared by the Company's Board of Directors payable in cash, stock or other
property, the holders of the Company's Common Stock are entitled to share
ratably in such dividends.
VOTING RIGHTS. Each holder of the Company's Common Stock has one vote for
each share held on matters presented for consideration by the shareholders.
PREEMPTIVE RIGHTS. The holders of the Company's Common Stock have no
preemptive rights to acquire any additional shares of the Company.
ISSUANCE OF STOCK. Under California law the Company's Board of Directors
generally may issue authorized shares of the Company's Common Stock or Preferred
Stock without shareholder approval.
LIQUIDATION RIGHTS. In the event of the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, the holders of the
Company's Common Stock will be entitled to share ratably in any of its assets or
funds that are available for distribution to its shareholders after the
satisfaction of its liabilities (or after adequate provision is made therefor)
and after payment of the liquidation preferences of outstanding Preferred Stock,
if any.
PREFERRED STOCK
The Company's authorized Preferred Stock may be issued from time to time as
a class without series, or if so determined by the Board of Directors, in one or
more series. The voting rights, dividend rights, conversion rights, redemption
rights and liquidation preferences of any Preferred Stock, the number of shares
constituting any such series and the terms and conditions of the issue of the
Preferred Stock may be fixed by resolution of the Company's Board of Directors.
The Company's Preferred Stock,
-54-
as, if and when issued, has and will have a preference over the Company's Common
Stock with respect to the payment of dividends and the distribution of assets in
the event of the liquidation of the Company, and such other preferences as may
be fixed by the Board of Directors. See "THE COMPANY - Issuance of Convertible
Preferred Stock."
WARRANTS AND OPTIONS
In November 1994, the Company approved the Incomnet 1994 Stock Option Plan
for the directors, employees and key outside consultants of the Company and its
subsidiaries, which provided for the issuance of stock options covering up to
1,500,000 shares of the Company's Common Stock. In November 1994, options to
purchase 1,200,000 shares of the Company's Common Stock were granted at an
exercise price of $10 per share provided, that the stock options vest and become
exercisable only upon NTC earning at least $15 million in pre-tax profits during
any continuous four audited quarterly periods until December 31, 1997. See
footnote 6, "Shareholders' Equity - Stock Options" in the Consolidated Financial
Statements of the Company included in "Item 8. Financial Statements" in the
Company's 1995 Form 10-K. On February 6, 1996, the Company entered into a
Management Incentive Agreement pursuant to which Edward R. Jacobs, the grantee
of the 1,200,000 stock options issued under the 1994 Stock Option Plan, agreed
to cancel all of those options upon adoption of a new stock option plan for NTC,
to be effective once NTC becomes a publicly traded company. No additional stock
options are intended to be issued under the 1994 Stock Option Plan.
On November 30, 1995, the Company issued 300,000 stock options to Melvyn
Reznick, the President and Chief Executive Officer of the Company, pursuant to
the Employment Agreement entered into by the Company and Mr. Reznick on that
date. See "Item 1. Business -Employees, Officers and Directors - Officers" in
the Company's 1996 Form 10-K. On February 5, 1996, as modified on March 13,
1996, April 25, 1996 and June 11, 1996, the Company's Board of Directors adopted
the Incomnet 1996 Stock Option Plan for the directors, officers and key outside
consultants of the Company pursuant to which an aggregate of 1,500,000 stock
options are authorized to be granted, 780,000 of which have been granted
(480,000 of which are vested and 300,000 of which are not yet vested), including
the 300,000 stock options issued pursuant to Mr. Reznick's Employment Agreement.
The Company's 1996 Stock Option Plan was ratified by the Company's Shareholders
at their annual meeting on July 29, 1996. See "Ratification of 1996 Stock
Option Program for Directors, Officers and Key Consultants" in the Company's
Proxy Statement for the 1996 Annual Meeting of the Shareholders. On January
21, 1997, the Company granted a total of 165,000 additional stock options to
certain directors, officers, and consultants, which were not granted under the
Company's 1996 Stock Option Plan. See also "THE COMPANY - Grant of Stock
Options by the Company."
The holders of warrants and options do not have any voting rights until
they exercise the warrants or options and receive voting shares of Common Stock
pursuant to such exercise. The number of shares of Common Stock which can be
purchased upon the exercise of the warrants and options and the exercise price
are subject to adjustment in certain events, such as a stock split, reverse
stock split, stock dividend or similar event, in order to prevent dilution to
the warrant and option holders under those circumstances.
SIZE OF BOARD OF DIRECTORS
The Company's Bylaws provide that the Company's Board of Directors will
consist of no fewer than five and no more than nine members, with the number
currently fixed at six members. The Company's Board of Directors presently
has four directors and there are two vacancies.
CUMULATIVE VOTING
Pursuant to the Company's Bylaws and in accordance with the California
Corporations Code, each shareholder is entitled to one vote for each share of
the Company's Common Stock held, and such holders may be entitled to cumulative
voting rights in the election of directors. Under the California
-55-
Corporations Code, cumulative voting is not required unless, at the annual
meeting and prior to the voting, at least one shareholder gives notice of his
intention to cumulate his votes. If one shareholder give notice of an intention
to cumulate votes, then all shareholders have cumulative voting rights in the
election of directors. If no such notice is given, voting for directors is
noncumulative, which means that a simple majority of the shares voting may elect
all of the directors. Under cumulative voting, each shareholder entitled to vote
has the right to give one candidate a number of votes equal to the number of
authorized directors multiplied by the number of votes to which his shares are
entitled, or to distribute his votes on the same principle among as many
candidates as he desires. As a result, each share of the Company's Common Stock
has a number of votes equal to the number of authorized directors. The
California cumulative voting law applies only to the election of directors and
not to any other matters as to which shareholders may vote.
DIRECTOR'S LIABILITY
The California Corporations Code and the Company's Bylaws provide that a
director of the Company will have no personal liability to the Company or its
shareholders for monetary damages for breach of fiduciary duty as a director
except (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the corporation or its
shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the corporation or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of serious injury to the
corporation or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the corporation or its shareholders, or (vi) for an unlawful dividend,
distribution, stock repurchase or redemption. This provision would generally
absolve directors of personal liability for negligence in the performance of
duties, including gross negligence.
INDEMNIFICATION
The Company's Bylaws and Sections 204 and 317 of the California
Corporations Code contain comprehensive provisions for indemnification of
directors, officers and agents of California corporations against expenses,
judgments, fines and settlements in connection with litigation. The Company
has a policy of providing indemnification for its executive officers,
directors and members of its Committees, within the scope of the California
Corporations Code. It has entered into indemnification agreements with its
executive officers, directors and committee members. Under the California
Corporations Code, other than an action brought by or in the right of the
Company, such indemnification is available if it is determined that the
proposed indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and,
with respect to any criminal action or proceeding, has no reasonable cause to
believe his conduct was unlawful. In actions brought by or in the right of
the Company, such indemnification is limited to expenses (including
attorneys' fees) actually and reasonably incurred if the indemnitee acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. No indemnification may be made, however,
in respect of any claim, issue or matter as to which such person is adjudged
to be liable to the Company unless and only to the extent that the court in
which the action was brought determines that in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper. To the extent that the proposed
indemnitee has been successful in defense of any action, suit or proceeding,
he must be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the action. The Company's
Articles of Incorporation, as amended, provide for indemnification of the
directors and officers of the Company against liabilities to the maximum
extent provided by California law.
-56-
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
AMENDMENT OF CERTIFICATE OF INCORPORATION AND BYLAWS
Under the California Corporations Code, a corporation's certificate of
incorporation can be amended by the affirmative vote of the holders of a
majority of the outstanding shares entitled to vote, and a majority of the
outstanding stock of each class entitled to vote as a class, unless the
certificate requires the vote of a larger portion of the stock. The Company's
Articles of Incorporation, as amended, do not require a larger percentage
affirmative vote. As is permitted by the California Corporations Code, the
Company's Bylaws give its Board of Directors the power to adopt, amend or repeal
the Company's Bylaws. The Company's shareholders entitled to vote have
concurrent power to adopt, amend or repeal the Company's Bylaws.
DIVIDENDS
The California Corporations Code provides that, subject to any restrictions
in the corporation's articles of incorporation, dividends may be declared from
the corporation's surplus or, if there is no surplus, from its net profits for
the fiscal year in which the dividend is declared and the preceding fiscal year.
Dividends may not be declared, however, if the corporation's capital has been
diminished to an amount less than the aggregate amount of all capital
represented by the issued and outstanding stock of all classes having a
preference upon the distribution of assets.
TRANSFER AGENT
The Transfer Agent and Registrar for the capital stock of the Company is
American Stock Transfer Company.
SELLING SECURITY HOLDERS
THE WARRANTHOLDERS. The selling security holders include the individuals
and entities listed on the table below who purchased 360,000 Warrants for a
price of $.10 per Warrant in connection with a settlement agreement entered into
with the Company on December 9, 1996. See "THE COMPANY - Settlement with RCI
Parties." The selling security holders also include Charles Stevens and his
legal counsel, who were issued a total of 12,500 Warrants in connection with the
settlement of the lawsuit known as CHARLES STEVENS V. INCOMNET, INC. AND SAM D.
SCHWARTZ. See "THE COMPANY - Settlement of the Stevens Lawsuit." They are also
listed on the following table:
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NUMBER OF
NUMBER OF UNDERLYING
NAME OF WARRANTHOLDER WARRANTS SHARES EXERCISE PRICE EXERCISE PERIOD
Dr. Robert Cohen(1) 100,000 100,000 $3.75 12/9/96 - 12/9/99
Dr. Alan Cohen(3) 100,000 100,000 $3.75 12/9/96 - 12/9/99
Jeff Cohen(3) 50,000 50,000 $3.75 12/9/96 - 12/9/99
Jeff Rubin(2) 10,000 10,000 $3.75 12/9/96 - 12/9/99
Lenore Katz 10,000 10,000 $3.75 12/9/96 - 12/9/99
Allyson Cohen(4) 50,000 50,000 $3.75 12/9/96 - 12/9/99
Broadway Partners(5) 40,000 40,000 $3.75 12/9/96 - 12/9/99
Charles Stevens 9,375 9,375 $2.94 12/17/96 - 12/17/01
Peter Dion-Kindem(7) 3,125 3,125 $2.94 12/17/96 - 12/17/01
- ------------------------------
(1) Dr. Robert Cohen is a director of Rapid Cast, Inc., a subsidiary of the
Company.
(2) Jeff Rubin is a director and Executive Vice President of Rapid Cast, Inc.,
a subsidiary of the Company.
(3) Dr. Alan Cohen and Dr. Robert Cohen are brothers.
(4) Jeff Cohen is the son-in-law of Dr. Robert Cohen.
(5) Allyson Cohen is Dr. Robert Cohen's daughter.
(6) Broadway Partners is a partnership composed of the children of Drs. Robert
and Alan Cohen.
(7) Mr. Dion-Kindem is legal counsel to Charles Stevens.
These Underlying Shares are therefore being offered for resale by the
Warrantholders if and when they exercise their Warrants and not pursuant to an
initial issuance of stock by the Company.
THE SERIES A PREFERRED HOLDERS. The selling security holders include five
individuals and four entities which purchased a total of 2,075 shares of Series
A Preferred in October 1996. The following table sets forth the name of each
Series A Preferred holder, the number of shares of Series A Preferred owned by
the holder, the amount of their investment, and the number of shares of the
Company's Common Stock into which the Series A Preferred is convertible assuming
that the average bid price of the Company's Common Stock for the five trading
days immediately preceding the conversion date for each holder is at least 20%
higher than the bid price on the date of the issuance of the Series A Preferred
(i.e., the highest possible conversion price resulting in the minimum number of
shares of Common Stock issuable upon the conversion of the Series A Preferred).
If the average bid price prior to the conversion date is less than that amount,
then more shares of the Company's Common Stock would be issued upon the
conversion of the Series A Preferred, causing more dilution to the Company's
Common Stockholders. See "RISK FACTORS - General Risks - Possible Adverse
Effects of Issuance of Preferred Stock."
-58-
Minimum Number of
Number of Shares of Common
Name of Series A Series A Preferred Amount of Stock Issuable
Preferred Holder Shares Investment Upon Conversion
- -----------------------------------------------------------------------------------------
David and Susan Wilstein 100 $ 100,000 25,000
Charles Shapiro 25 25,000 5,882
Buchanan Partners 500 500,000 112,676
Buchanan Fund Ltd. 500 500,000 112,676
Wood Gundy 500 500,000 105,263
Dr. Robert Cohen(1) 125 125,000 30,303
Lenore Katz 25 25,000 6,060
Leonard Wilstein 100 100,000 23,175
Faisal Financial 200 200,000 46,350
---------- ---------- ----------
TOTAL 2,075 $2,075,000 467,385
---------- ---------- ----------
---------- ---------- ----------
- ------------------------------
(1) Robert Cohen is a director of Rapid Cast, Inc., a subsidiary of the Company.
THE OUTSTANDING SHAREHOLDERS. The selling shareholders include three
investors who purchased 365 shares of Series A Preferred Stock in September 1996
and converted them into a total of 150,826 shares of Common Stock on December
31, 1996, 140,000 of which were registered with the Securities and Exchange
Commission on October 31, 1996, and the balance of which are covered by this
Prospectus. The selling shareholders also include two investors who purchased
30,000 shares of the Company's Common Stock for $3.03 per share in January 1997
in connection with the settlement agreement made between the Company and certain
affiliates of Rapid Cast, Inc. See "THE COMPANY - Settlement with RCI Parties."
The following table lists the selling security holders who are Outstanding
Shareholders and the number of Outstanding Shares owned by them.
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NAME OF OUTSTANDING SHAREHOLDER NUMBER OF SHARES
------------------------------- ----------------
Stefanie Rubin(1) 9,157
Dr. Robert Cohen(2) 25,000
Jack Gilbert(3) 8,927
Mark Richardson(4) 742
- ------------------------------
(1) Stefanie Rubin is the wife of Jeff Rubin who is an officer and director of
RCI. Ms. Rubin purchased 40 shares of Series A Preferred and converted
them into 16,529 shares of the Company's Common Stock, 1,157 of which are
covered by this Prospectus. Stefanie also purchased 8,000 shares of the
Company's Common Stock in January 1997 in a private placement for $3.03 per
share. See "THE COMPANY - Settlement with RCI Parties."
(2) Dr. Robert Cohen is a director of RCI. These shares were purchased from
the Company for a price of $3.03 per share in a private placement in
January 1997. See "THE COMPANY - Settlement with RCI Parties."
(3) Jack Gilbert purchased 300 shares of Series A Preferred and converted them
into 123,967 shares of the Company's Common Stock, 8,927 of which are
covered by this Prospectus.
(4) Mark Richardson purchased 25 shares of Series A Preferred Stock and
converted them into 10,331 shares of the Company's Common Stock, 742 of
which are covered by this Prospectus. Mr. Richardson is corporate counsel
to the Company. See "LEGAL MATTERS."
SHARES ELIGIBLE FOR FUTURE SALE
As of June 27, 1997, the Company has approximately 3,707,200 shares of its
Common Stock (not including the Shares or the Underlying Shares issuable upon
the exercise of the Warrants or the Series A Preferred covered by this
Prospectus, but including all other shares of the Company's Common Stock which
can be acquired pursuant to the exercise of other vested outstanding warrants
and options) issued and outstanding which may be deemed to be "restricted
securities" as that term is defined in Rule 144 of the Securities Act. These
restricted securities may be sold in the future in compliance with Rule 144 or
Regulation S of the Securities Act. The Company can make no prediction as to the
effect, if any, that sales of shares of Common Stock, or the availability of
shares for future sale, will have on the market price of the Common Stock
prevailing from time to time. Sales of substantial amounts of Common Stock
(including shares issued upon the exercise of warrants or options) in the public
market, or the perception that such sales could occur, could depress the
prevailing market price for the Common Stock. Such sales may also make it more
difficult for the Company to sell equity securities or equity-related securities
in the future at a time and price which it deems appropriate. See "RISK FACTORS
- -General Risks - Dilution Caused by Future Sales of Shares."
-60-
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock covered by this
Prospectus will be passed upon for the Company by Mark J. Richardson, Esq.,
counsel to the Company, 1299 Ocean Avenue, Suite 900, Santa Monica, California,
90401. In consideration for certain legal services, the Company has issued to
Mr. Richardson options to purchase 50,000 shares of the Company's Common Stock,
30,000 of which are exercisable at a purchase price of $4.37 per share, and
20,000 of which are exercisable at a purchase price of $4.25 per share. The
stock options are exercisable as follows: 15,000 at any time until April 5,
2001, 15,000 at any time until January 1, 2002, and 20,000 at any time until
January 22, 2002. Mr. Richardson also purchased 25 shares of the Company's
Series A 2% Convertible Preferred Stock for $25,000 in cash on the same terms
and conditions as the other purchasers of the Preferred Stock. See "THE COMPANY
- - Issuance of Convertible Preferred Stock."
EXPERTS
The financial statements of the Company, included and incorporated by
reference from the Company's Annual Report (Form 10-K) for the years ended
December 31, 1996, 1995 and 1994, have been audited by Stonefield Josephson,
independent auditors, as set forth in their reports thereon and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority of such firms
as experts in accounting and auditing.
-61-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRE-SENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH IT RELATES OR AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO
ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
---------------
TABLE OF CONTENTS
AVAILABLE INFORMATION 2
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE 2
PROSPECTUS SUMMARY 4
RISK FACTORS 9
THE COMPANY 21
USE OF PROCEEDS 39
PRICE RANGE OF COMMON STOCK AND DIVIDENDS 39
CAPITALIZATION 40
DILUTION 41
SELECTED CONSOLIDATED FINANCIAL INFORMATION 41
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS 43
PRINCIPAL STOCKHOLDERS 52
DESCRIPTION OF CAPITAL STOCK 54
SELLING SECURITY HOLDERS 57
SHARES ELIGIBLE FOR FUTURE SALE 60
LEGAL MATTERS 61
EXPERTS 61
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1,972,500 SHARES
INCOMNET, INC.
COMMON STOCK
---------------
PROSPECTUS
JULY 9, 1997
---------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
-62-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
offering described in this Registration Statement. All amounts are estimated
except the registration fees.
Registration Fee $ 2,025.40
Printing Costs for Registration Statement,
Prospectus and related documents $ 5,000.00
Accounting Fees and Expenses $ 5,000.00
Legal Fees and Expenses $ 40,000.00
Blue Sky Fees and Expenses $ 5,000.00
-----------
Total $ 57,025.40
-----------
-----------
----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
See "DESCRIPTION OF CAPITAL STOCK - Indemnification" in the Prospectus.
ITEM 16. EXHIBITS.
Exhibit
No. Description
- --- -----------
3.1 The Articles of Incorporation, as amended, of Incomnet, Inc. (A)
3.2 The Bylaws of Incomnet, Inc. (A)
3.3 Certificate of Determination for Series A 2% Convertible Preferred Stock.
(M)
3.4 Amendment to Bylaws of Incomnet, Inc., dated June 8, 1997.
4.1 Warrant to Purchase 500,000 Shares of Incomnet, Inc., dated January 17,
1994. (C)
4.2 Warrant to Purchase 500,000 Shares of Incomnet, Inc., dated May 27, 1994.
(D)
4.3 Form of Warrant to Purchase 986,667 Shares of Incomnet, Inc. (E)
4.4 Form of Warrant to Purchase 75,000 Shares of Incomnet, Inc. (I)
4.5 Form of Warrant to Purchase 510,000 Shares of RCI Common Stock with
Registration Rights Agreement, dated April 19, 1996. (I)
4.6 Form of Warrant to Purchase RCI Common Stock, dated February 8, 1995. (I)
4.7 Form of Warrant to Purchase 360,000 Shares of Incomnet, Inc. (N)
4.8 Form of Warrant to Purchase 12,500 Shares of Incomnet, Inc. (N)
II-1
5.1 Form of Legal Opinion and Consent of Mark J. Richardson, Esq. with
respect to securities being registered.
10.1 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated February 14, 1994. (C)
10.2 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated May 10, 1994. (C)
10.3 Agreement and Plan of Exchange by and between Incomnet, Inc. and National
Telephone Communications, Inc., dated May 12, 1994. (B)
10.4 Consulting Agreement by and between Broad Capital Associates, Inc. and
Incomnet, Inc., dated January 17, 1994. (C)
10.5 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated August 17, 1994. (C)
10.6 Carrier Switched Services Agreement with Wiltel, Inc., dated September
30, 1993. (B)(1)
10.7 Network Wats Enrollment Form with U.S. Sprint, dated April 7, 1993. (B)
10.8 Carrier Switched Services Agreement with Wiltel, Inc., dated November 15,
1994. (D)(1)
10.9 The Stock Purchase Agreement for the acquisition of RCI, dated January
18, 1995. (F)
10.10 The Stock Purchase Agreement for the acquisition of Q2100, dated October
29, 1994. (F)
10.11 Stock Pledge Agreement, dated February 8, 1995. (F)
10.12 Form of 8% Convertible Secured Promissory Note, dated February 8, 1995.
(F)
10.13 Agreement for Promotion of Pagers between NTC and Page Prompt.(I)
10.14 Carrier Switched Services Agreement Wiltel, Inc, dated September 15,
1995. (I)(1)
10.15 Amendment to Stock Purchase Agreement Between Incomnet, Inc. and Rapid
Cast, Inc., Dated June 15, 1995. (I)
10.16 Agreement for Promotion of Internet Access Services Between NTC and
EarthLink Network. (I)
10.17 Severance Agreement Between Incomnet, Inc. and Sam D. Schwartz, dated
November 30, 1995. (G)
10.18 Employment Agreement Between Incomnet, Inc. and Melvyn Reznick, dated
November 30, 1995. (G)
10.19 Management Incentive Agreement, dated February 6, 1996, between Incomnet,
Inc. and National Telephone Communications, Inc. (H)
II-2
10.20 Settlement Agreements and Proposed Settlement Agreements With Prior
Noteholders. (I)
10.21 Form of 8% Convertible Note Issued By RCI in January 1996. (I)
10.22 Form of Short-Term 10% Note Issued By RCI in April 1996. (I)
10.23 Amended Carrier Switched Services Agreement with Wiltel, Inc., dated June
17, 1996.(K)(1)
10.24 Settlement Agreement Between Joel Greenberg and Incomnet, Inc., dated as
of May 9, 1996 and executed on June 6, 1996. (J)
10.25 Form of Registration Rights Agreement Between Incomnet, Inc. and
Purchasers of Series A Convertible Preferred Stock.(K)
10.26 Form of Purchase Agreement for the Series A 2% Convertible Preferred
Stock.(K)
10.27 Management Incentive Agreement With NTC, dated October 14, 1996.(M)
10.28 Settlement Agreements With Edward Jacobs and Jerry Ballah, dated November
14, 1996.(M)
10.29 Shareholders Agreement for Rapid Cast, Inc., dated January 16, 1997.(N)
10.30 Registration Rights Agreement for Rapid Cast, Inc., dated January 16,
1997.(N)
10.31 Amended and Restated Management Incentive Agreement Between NTC and
Incomnet, Inc., dated January 28, 1997.(N)
10.32 Employment Agreement Between NTC and James R. Quandt, dated January 6,
1997.(N)
10.33 Settlement Agreement and Mutual Release Between Incomnet, Inc. and the
RCI Parties, dated December 9, 1996.(N)
10.34 Stock Option and Convertible Debt Plans Adopted By National
Telephone & Communications, Inc.
10.35 Form of Stock Purchase Agreement for the acquisition of
California Interactive Computing, Inc., dated May 2, 1997(O)
10.36 Amendment to Employment Agreement Between Incomnet, Inc. and
Melvyn H. Reznick, dated June 8, 1997.
10.37 Employment Agreement Between Incomnet, Inc. and Stephen A.
Caswell, dated June 8, 1997.
13.1 The Annual Report on Form 10-K for the fiscal year ending December 31,
1996 for Incomnet, Inc. (P)
13.2 The Annual Report on Form 10-KA for the fiscal year ending December 31,
1996 for Incomnet, Inc., filed on May 23, 1997. (P)
13.3 The Annual Report on Form 10-KA for the fiscal year ending December 31,
1996, filed on July 9, 1997. (P)
13.4 The Quarterly Report on Form 10-Q for the fiscal quarter ending March
31, 1997 for Incomnet, Inc. (P)
13.5 The Quarterly Report on Form 10-QA for the fiscal quarter ending March
31, 1997 for Incomnet, Inc., filed on July 9, 1997 (P)
13.6 The Quarterly Report on Form 10-Q for the fiscal quarter ending September
30, 1996 for Incomnet, Inc. (L)
13.7 The Quarterly Report on Form 10-QA for the fiscal quarter ending
September 30, 1996 for Incomnet, Inc. (N)
13.8 The Quarterly Report on Form 10-Q for the fiscal quarter ending
June 30, 1996 for Incomnet, Inc.(K)
II-3
16. Letter re Change in Certifying Accountant. (B)
21. Subsidiaries of the Registrant. (A)
23.1 Consent of Stonefield Josephson, independent Certified Public
Accountants, relating to the financial statements.
23.2 Consent of Mark J. Richardson, Esq. is included in his opinion.
24. Power of Attorney is included on the signature page of this Registration
Statement.
- -------------------------
(1) Certain information has been deleted from this agreement pursuant to a
request for confidential treatment under Rule 406.
(A) Incorporated by reference from Incomnet, Inc.'s Annual Report on Form 10-
K for the year ending December 31, 1994.
(B) Incorporated by reference from Incomnet Inc.'s Registration Statement on
Form S-4 filed with the Securities and Exchange Commission on May 12,
1994, and declared effective on October 27, 1994.
(C) Incorporated by reference from the Registration Statement on Form S-3
filed with the Securities and Exchange Commission on June 17, 1994 and
declared effective on October 27, 1994.
(D) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on December 12,
1994 and declared effective on December 22, 1994.
(E) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on January 5, 1995
and declared effective on January 9, 1995.
(F) Incorporated by reference from the Company's Report on Form 8-K, dated
February 8, 1995, relating to the Company's acquisition of a controlling
interest in RCI.
(G) Incorporated by reference from the Company's Report on Form 8-K dated
November 30, 1995, relating to the resignation of Sam D. Schwartz and
employment of Melvyn Reznick.
(H) Incorporated by reference from the Company's Report on Form 8-K, dated
February 9, 1996, relating to the management incentive agreement between
Incomnet and NTC.
(I) Incorporated by reference from the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on May 10,
1996.
(J) Incorporated by reference from the Company's Report on Form 8-K, dated
June 7, 1996, relating to the settlement agreement with Joel W. Greenberg
and his resignation as a director of the Company.
II-4
(K) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on May 10, 1996 and
declared effective on October 31, 1996, or incorporated by reference from
the Company's filings with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended.
(L) Incorporated by reference from the filing of the Form 10-Q for the fiscal
quarter ending September 30, 1996, as filed with the Securities and
Exchange Commission on November 14, 1996.
(M) Incorporated by reference from the original filing of this Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on November 22, 1996.
(N) Incorporated by reference from Amendment Number One to the Company's
Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on March 24, 1997.
(O) Incorporated by reference from the Company's Report on Form 8-K, dated
May 2, 1997, relating to the acquisition of California Interactive
Computing, Inc.
(P) Incorporated by reference from filings made under the Securities and
Exchange Act of 1934, as amended.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provision described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
RULE 430A UNDERTAKINGS. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of Prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
RULE 415 UNDERTAKINGS. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
II-5
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, the President of the
Registrant duly thereunto authorized, in the City of Woodland Hills, State of
California, on the 7th day of July, 1997.
INCOMNET, INC.
Registrant
By:/s/ Melvyn Reznick
----------------------------------------
Melvyn Reznick, President
and Chief Executive Officer
II-6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark J. Richardson his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents of each of them, or their or his substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the 7th day of July, 1997, by
the following persons in the capacities indicated.
Signatures Title
- ---------- -----
/s/ Melvyn Reznick President, Chief Executive
- ------------------------------ Officer and Director
Melvyn Reznick (Chief Executive Officer and Principal
Financial Officer)
/s/ Stephen A. Caswell Vice President of Information Systems,
- ------------------------------ Secretary (Principal Accounting Officer)
Stephen A. Caswell
/s/ Albert Milstein Director
- ------------------------------
Albert Milstein
/s/ Nancy Zivitz Director
- ------------------------------
Nancy Zivitz
/s/ Howard Silverman Director
- ------------------------------
Howard Silverman
II-7
INDEX TO THE EXHIBIT VOLUME TO
REGISTRATION STATEMENT ON FORM S-3
Exhibit
No. Description
- ------- -----------
3.1 The Articles of Incorporation, as amended, of Incomnet, Inc. (A)
3.2 The Bylaws of Incomnet, Inc. (A)
3.3 Certificate of Determination for Series A 2% Convertible Preferred Stock.
(M)
3.4 Amendment to Bylaws of Incomnet, Inc., dated June 8, 1997.
4.1 Warrant to Purchase 500,000 Shares of Incomnet, Inc., dated January 17,
1994. (C)
4.2 Warrant to Purchase 500,000 Shares of Incomnet, Inc., dated May 27, 1994.
(D)
4.3 Form of Warrant to Purchase 986,667 Shares of Incomnet, Inc. (E)
4.4 Form of Warrant to Purchase 75,000 Shares of Incomnet, Inc. (I)
4.5 Form of Warrant to Purchase 510,000 Shares of RCI Common Stock with
Registration Rights Agreement, dated April 19, 1996. (I)
4.6 Form of Warrant to Purchase RCI Common Stock, dated February 8, 1995. (I)
4.7 Form of Warrant to Purchase 360,000 Shares of Incomnet, Inc. (N)
4.8 Form of Warrant to Purchase 12,500 Shares of Incomnet, Inc. (N)
5.1 Form of Legal Opinion and Consent of Mark J. Richardson, Esq. with
respect to securities being registered.
10.1 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated February 14, 1994. (C)
10.2 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated May 10, 1994. (C)
10.3 Agreement and Plan of Exchange by and between Incomnet, Inc. and National
Telephone Communications, Inc., dated May 12, 1994. (B)
10.4 Consulting Agreement by and between Broad Capital Associates, Inc. and
Incomnet, Inc., dated January 17, 1994. (C)
10.5 Agreement by and between Broad Capital Associates, Inc. and Incomnet,
Inc., dated August 17, 1994. (C)
10.6 Carrier Switched Services Agreement with Wiltel, Inc., dated September
30, 1993. (B)(1)
10.7 Network Wats Enrollment Form with U.S. Sprint, dated April 7, 1993. (B)
10.8 Carrier Switched Services Agreement with Wiltel, Inc., dated November 15,
1994. (D)(1)
10.9 The Stock Purchase Agreement for the acquisition of RCI, dated January
18, 1995. (F)
10.10 The Stock Purchase Agreement for the acquisition of Q2100, dated October
29, 1994. (F)
10.11 Stock Pledge Agreement, dated February 8, 1995. (F)
10.12 Form of 8% Convertible Secured Promissory Note, dated February 8, 1995.
(F)
10.13 Agreement for Promotion of Pagers between NTC and Page Prompt.(I)
10.14 Carrier Switched Services Agreement Wiltel, Inc, dated September 15,
1995. (I)(1)
10.15 Amendment to Stock Purchase Agreement Between Incomnet, Inc. and Rapid
Cast, Inc., Dated June 15, 1995. (I)
10.16 Agreement for Promotion of Internet Access Services Between NTC and
EarthLink Network. (I)
10.17 Severance Agreement Between Incomnet, Inc. and Sam D. Schwartz, dated
November 30, 1995. (G)
10.18 Employment Agreement Between Incomnet, Inc. and Melvyn Reznick, dated
November 30, 1995. (G)
10.19 Management Incentive Agreement, dated February 6, 1996, between Incomnet,
Inc. and National Telephone Communications, Inc. (H)
10.20 Settlement Agreements and Proposed Settlement Agreements With Prior
Noteholders. (I)
10.21 Form of 8% Convertible Note Issued By RCI in January 1996. (I)
10.22 Form of Short-Term 10% Note Issued By RCI in April 1996. (I)
10.23 Amended Carrier Switched Services Agreement with Wiltel, Inc., dated June
17, 1996.(K)(1)
10.24 Settlement Agreement Between Joel Greenberg and Incomnet, Inc., dated as
of May 9, 1996 and executed on June 6, 1996. (J)
10.25 Form of Registration Rights Agreement Between Incomnet, Inc. and
Purchasers of Series A Convertible Preferred Stock.(K)
10.26 Form of Purchase Agreement for the Series A 2% Convertible Preferred
Stock.(K)
10.27 Management Incentive Agreement With NTC, dated October 14, 1996.(M)
10.28 Settlement Agreements With Edward Jacobs and Jerry Ballah, dated November
14, 1996.(M)
10.29 Shareholders Agreement for Rapid Cast, Inc., dated January 16, 1997.(N)
10.30 Registration Rights Agreement for Rapid Cast, Inc., dated January 16,
1997.(N)
10.31 Amended and Restated Management Incentive Agreement Between NTC and
Incomnet, Inc., dated January 28, 1997.(N)
10.32 Employment Agreement Between NTC and James R. Quandt, dated January 6,
1997.(N)
10.33 Settlement Agreement and Mutual Release Between Incomnet, Inc. and the
RCI Parties, dated December 9, 1996.(N)
10.34 Stock Option and Convertible Debt Plans Adopted By National
Telephone & Communications, Inc.
10.35 Form of Stock Purchase Agreement for the acquisition of
California Interactive Computing, Inc., dated May 2, 1997(O)
10.36 Amendment to Employment Agreement Between Incomnet, Inc. and
Melvyn H. Reznick, dated June 8, 1997.
10.37 Employment Agreement Between Incomnet, Inc. and Stephen A.
Caswell, dated June 8, 1997.
13.1 The Annual Report on Form 10-K for the fiscal year ending December 31,
1996 for Incomnet, Inc. (P)
13.2 The Annual Report on Form 10-KA for the fiscal year ending December 31,
1996 for Incomnet, Inc., filed on May 23, 1997. (P)
13.3 The Annual Report on Form 10-KA for the fiscal year ending December 31,
1996, filed on July 9, 1997. (P)
13.4 The Quarterly Report on Form 10-Q for the fiscal quarter ending March
31, 1997 for Incomnet, Inc. (P)
13.5 The Quarterly Report on Form 10-QA for the fiscal quarter ending March
31, 1997 for Incomnet, Inc., filed on July 9, 1997 (P)
13.6 The Quarterly Report on Form 10-Q for the fiscal quarter ending September
30, 1996 for Incomnet, Inc. (L)
13.7 The Quarterly Report on Form 10-QA for the fiscal quarter ending
September 30, 1996 for Incomnet, Inc. (N)
13.8 The Quarterly Report on Form 10-Q for the fiscal quarter ending
June 30, 1996 for Incomnet, Inc.(K)
16. Letter re Change in Certifying Accountant. (B)
21. Subsidiaries of the Registrant. (A)
23.1 Consent of Stonefield Josephson, independent Certified Public
Accountants, relating to the financial statements.
23.2 Consent of Mark J. Richardson, Esq. is included in his opinion.
24. Power of Attorney is included on the signature page of this Registration
Statement.
- -------------------------
(1) Certain information has been deleted from this agreement pursuant to a
request for confidential treatment under Rule 406.
(A) Incorporated by reference from Incomnet, Inc.'s Annual Report on Form 10-
K for the year ending December 31, 1994.
(B) Incorporated by reference from Incomnet Inc.'s Registration Statement on
Form S-4 filed with the Securities and Exchange Commission on May 12,
1994, and declared effective on October 27, 1994.
(C) Incorporated by reference from the Registration Statement on Form S-3
filed with the Securities and Exchange Commission on June 17, 1994 and
declared effective on October 27, 1994.
(D) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on December 12,
1994 and declared effective on December 22, 1994.
(E) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on January 5, 1995
and declared effective on January 9, 1995.
(F) Incorporated by reference from the Company's Report on Form 8-K, dated
February 8, 1995, relating to the Company's acquisition of a controlling
interest in RCI.
(G) Incorporated by reference from the Company's Report on Form 8-K dated
November 30, 1995, relating to the resignation of Sam D. Schwartz and
employment of Melvyn Reznick.
(H) Incorporated by reference from the Company's Report on Form 8-K, dated
February 9, 1996, relating to the management incentive agreement between
Incomnet and NTC.
(I) Incorporated by reference from the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on May 10,
1996.
(J) Incorporated by reference from the Company's Report on Form 8-K, dated
June 7, 1996, relating to the settlement agreement with Joel W. Greenberg
and his resignation as a director of the Company.
(K) Incorporated by reference from Incomnet's Registration Statement on Form
S-3 filed with the Securities and Exchange Commission on May 10, 1996 and
declared effective on October 31, 1996, or incorporated by reference from
the Company's filings with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended.
(L) Incorporated by reference from the filing of the Form 10-Q for the fiscal
quarter ending September 30, 1996, as filed with the Securities and
Exchange Commission on November 14, 1996.
(M) Incorporated by reference from the original filing of this Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on November 22, 1996.
(N) Incorporated by reference from Amendment Number One to the Company's
Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on March 24, 1997.
(O) Incorporated by reference from the Company's Report on Form 8-K, dated
May 2, 1997, relating to the acquisition of California Interactive
Computing, Inc.
(P) Incorporated by reference from filings made under the Securities and
Exchange Act of 1934, as amended.