UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/x/ Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the period ended September 30, 2003, or
/ / Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission file number 0-13865
SKYTERRA COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 23-2368845
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
19 West 44th Street, Suite 507
New York, New York 10036
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 730-7540
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter periods that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes /x/ No / /
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Act).
Yes / / No /x/
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
As of November 12, 2003, 6,075,727 shares of the registrant's voting common
stock and 8,990,212 shares of the registrant's non-voting common stock were
outstanding.
INDEX
Page
Part I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Consolidated Balance Sheets as of December 31, 2002
and September 30, 2003 (Unaudited) 2
Unaudited Consolidated Statements of Operations -
Three and nine months ended September 30, 2002 and 2003 3
Unaudited Consolidated Statements of Cash Flows - Nine
months ended September 30, 2002 and 2003 4
Notes to Unaudited Consolidated Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 10
Item 3. Quantitative and Qualitative Disclosures About Market Risk 17
Item 4. Controls and Procedures 17
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 18
Item 2. Changes in Securities 18
Item 3. Defaults Upon Senior Securities 18
Item 4. Submission of Matters to a Vote of Security Holders 18
Item 5. Other Information 18
Item 6. Exhibits and Reports on Form 8-K 19
SIGNATURES 20
SKYTERRA COMMUNICATIONS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands except share data)
December 31, September 30,
2002 2003
------------- -------------
(Unaudited)
Assets
Current assets:
Cash and cash equivalents $ 37,484 $ 12,863
Short-term investments 2,008 18,718
--------- ---------
Total cash, cash equivalents and short-term investments 39,492 31,581
Accounts receivable, net -- 195
Prepaid expenses and other current assets 1,412 588
--------- ---------
Total current assets 40,904 32,364
Property and equipment, net 24 71
Notes receivable from the Mobile Satellite Venture, L.P. 56,823 61,148
Note receivable from Verestar, Inc. -- 2,500
Note receivable from Motient Corporation, net -- --
Investments in affiliates 2,343 2,555
Other assets 252 162
--------- ---------
Total assets $ 100,346 $ 98,800
========= =========
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 2,105 $ 1,521
Accrued liabilities 5,610 4,791
Deferred revenue -- 114
--------- ---------
Total current liabilities 7,715 6,426
--------- ---------
Series A Convertible Preferred Stock, $.01 par value, net of unamortized
discount of $41,373 and $38,078, respectively 70,495 77,737
--------- ---------
Minority interest 11,334 12,177
--------- ---------
Stockholders' equity:
Preferred stock, $.01 par value. Authorized 10,000,000 shares; issued
1,118,684 shares as Series A Convertible Preferred Stock at December 31,
2002 and 1,158,150 shares at September 30, 2003 -- --
Common stock, $.01 par value. Authorized 200,000,000 shares; issued and
outstanding 6,682,615 shares at December 31, 2002 and 6,075,727 shares at
September 30, 2003 67 61
Non-voting common stock, $.01 par value. Authorized 100,000,000 shares; issued and
outstanding 8,990,212 shares at December 31, 2002 and September 30, 2003 90 90
Additional paid-in capital 547,250 546,555
Accumulated deficit (536,434) (544,075)
Treasury stock, at cost, 6,622 shares (171) (171)
--------- ---------
Total stockholders' equity 10,802 2,460
--------- ---------
Total liabilities and stockholders' equity $ 100,346 $ 98,800
========= =========
See accompanying notes to unaudited consolidated financial statements.
SKYTERRA COMMUNICATIONS, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands except share data)
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
2002 2003 2002 2003
-------------- -------------- -------------- -------------
Revenues $ -- $ 196 $ -- $ 196
Cost of revenues -- 219 -- 219
------------ ------------ ------------ ------------
Gross profit -- (23) -- (23)
Expenses:
Selling, general and administrative 1,266 1,464 4,907 4,785
Depreciation and amortization 28 13 87 26
------------ ------------ ------------ ------------
Total expenses 1,294 1,477 4,994 4,811
------------ ------------ ------------ ------------
Loss from operations (1,294) (1,500) (4,994) (4,834)
Interest income, net 1,418 1,592 4,122 4,656
Loss on investments in affiliates (171) (67) (228) (266)
Other (expense) income, net (14,813) 3 (14,799) (2)
Minority interest (258) (288) (746) (835)
------------ ------------ ------------ ------------
Loss before taxes and discontinued operations (15,118) (260) (16,645) (1,281)
Income tax benefit -- -- 350 --
------------ ------------ ------------ ------------
Loss before discontinued operations (15,118) (260) (16,295) (1,281)
Gain from wind-down of discontinued operations 413 319 11,871 882
------------ ------------ ------------ ------------
Net (loss) income (14,705) 59 (4,424) (399)
Cumulative dividends and accretion of convertible
preferred stock to liquidation value (2,370) (2,429) (8,553) (7,242)
------------ ------------ ------------ ------------
Net loss attributable to common stockholders $ (17,075) $ (2,370) $ (12,977) $ (7,641)
============ ============ ============ ============
Basic and diluted (loss) earnings per share:
Continuing operations $ (1.18) $ (0.18) $ (2.35) $ (0.55)
Discontinued operations 0.03 0.02 1.12 0.06
------------ ------------ ------------ ------------
Net loss per share $ (1.15) $ (0.16) $ (1.23) $ (0.49)
============ ============ ============ ============
Weighted average common shares outstanding 14,800,273 15,047,262 10,587,212 15,439,433
============ ============ ============ ============
See accompanying notes to unaudited consolidated financial statements.
SKYTERRA COMMUNICATIONS, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Nine Months Ended September 30,
--------------------------------
2002 2003
------------- --------------
Cash flows from operating activities:
Net loss $ (4,424) $ (399)
Adjustments to reconcile net loss to net cash used in operating activities:
Gain from discontinued operations (11,871) (882)
Depreciation and amortization 87 26
Loss on investments in affiliates 228 266
Loss on sale of XM Satellite Radio common stock 14,864 --
Non-cash compensation (contra-expense) expense (228) 419
Non-cash charge for issuance of warrant by consolidated subsidiary -- 28
Changes in assets and liabilities:
Accounts receivable -- 260
Prepaid expenses, interest receivable and other assets (3,086) (2,591)
Accounts payable and accrued expenses (167) (563)
Deferred revenue -- (59)
-------- --------
Net cash used in continuing operations (4,597) (3,495)
Net cash used in discontinued operations (1,546) (358)
-------- --------
Net cash used in operating activities (6,143) (3,853)
-------- --------
Cash flows from investing activities:
Cash paid for investments in affiliates (400) (390)
Cash received from investment in affiliates 300 1
Cash received from the sale of XM Satellite Radio common stock 3,944 --
Cash acquired from acquisitions, net of purchase price and acquisition costs -- 115
Purchases of notes receivable (1,118) (2,500)
Purchases of short-term investments (5,176) (18,798)
Sales and maturities of short-term investments 11,309 2,000
Purchases of property and equipment -- (7)
-------- --------
Net cash provided by (used in) continuing operations 8,859 (19,579)
Net cash provided by discontinued operations 500 --
-------- --------
Net cash provided by (used in) investing activities 9,359 (19,579)
-------- --------
Cash flows from financing activities:
Proceeds from issuance of common stock, net of costs 18,112 --
Proceeds from issuance of common stock in connection with the exercise of
warrants and options 3 6
Cash paid in connection with tender offer -- (1,243)
Proceeds from contributions to a consolidated subsidiary 177 48
-------- --------
Net cash provided by (used in) financing activities 18,292 (1,189)
-------- --------
Net increase (decrease) in cash and cash equivalents 21,508 (24,621)
Cash and cash equivalents, beginning of period 7,061 37,484
-------- --------
Cash and cash equivalents, end of period $ 28,569 $ 12,863
======== ========
See accompanying notes to unaudited consolidated financial statements.
(1) Description of the Business
SkyTerra Communications, Inc. (the "Company"), formerly known as Rare
Medium Group, Inc., operates its business through a group of complementary
subsidiaries in the telecommunications industry, including the Mobile Satellite
Venture, L.P. joint venture ("MSV Joint Venture"), Electronic System Products,
Inc. ("ESP"), and Miraxis, LLC ("Miraxis"). Consistent with this strategy, in
August 2003, the Company signed an agreement to acquire control of Verestar,
Inc., a global provider of integrated satellite and fiber services to
government organizations, multi-national corporations, broadcasters and
communications companies. Closing of the purchase agreement is subject to
Verestar achieving certain concessions from its satellite and terrestrial
vendors, approval by the FCC, and other customary closing conditions.
Through its 80% owned MSV Investors, LLC subsidiary ("MSV Investors
Subsidiary"), the Company is an active participant in the MSV Joint Venture, a
joint venture that also includes TMI Communications, Inc., Motient Corporation
("Motient"), and certain other investors (collectively, the "Other MSV
Investors"). The MSV Joint Venture is currently a provider of mobile digital
voice and data communications services via satellite in North America. The
Company has designated three members of the 12-member board of directors of the
MSV Joint Venture's corporate general partner.
On February 10, 2003, the Federal Communications Commission (the "FCC")
released an order relating to an application submitted by the MSV Joint Venture
and certain of its competitors that could greatly expand the scope of the MSV
Joint Venture's business by permitting the incorporation of an ancillary
terrestrial base stations (which we refer to as an "ancillary terrestrial
component" or "ATC") into its mobile satellite network. A similar application
is pending before Industry Canada, the FCC's counterpart in Canada. The MSV
Joint Venture cannot expand its mobile satellite services business using ATC
base stations into Canada until this application pending before Industry Canada
is approved. With the FCC's issuance of the ATC order, the Company expects the
MSV Joint Venture to enter a new stage of development which requires
significant future funding requirements and/or a need for one or more strategic
partners.
On August 25, 2003, the Company purchased all of the outstanding common
stock of ESP, a product development and engineering services firm that creates
products for and provides consulting and engineering services to the
telecommunications, broadband, satellite communications, and wireless
industries. Through the purchase of ESP, the Company acquired an additional
16.1% of IQStat, Inc. ("IQStat"), raising the Company's total stake to 21.3%.
IQStat is a privately held company with technology that will enable it to
measure radio listening habits and transmit the data over a national wireless
communications network to IQStat's operations center. IQStat intends to market
the aggregated data to broadcasters and advertisers to allow real-time tracking
of consumer behavior.
On May 28, 2002, the Company became affiliated with Miraxis, a development
stage company that has access to a Ka-band license with which it intends to
provide satellite based multi-channel, broadband data and video services in
North America.
From 1998 through the third quarter of 2001, the Company's principal
business was conducted through Rare Medium, Inc., which developed Internet
e-commerce strategies, business processes, marketing communications, branding
strategies and interactive content using Internet-based technologies and
solutions. As a result of the weakening of general economic conditions that
caused many companies to reduce spending on Internet-focused business solutions
and in light of their performance and prospects, a decision to discontinue Rare
Medium, Inc.'s operations, along with those of its LiveMarket, Inc. subsidiary
("LiveMarket"), was made at the end of the third quarter of 2001. As such, the
results of Rare Medium, Inc. and LiveMarket are reflected as discontinued
operations.
From 1999 through the first quarter of 2001, the Company made venture
investments by taking strategic minority equity positions in other
independently managed companies. Additionally, during that period, the Company
developed, managed and operated companies in selected Internet-focused market
segments ("Start-up Companies"). During the first quarter of 2001, the Company
reduced its focus on these businesses and substantially ceased providing
funding to its Start-up Companies.
The Company is headquartered in New York, New York.
(2) Basis of Presentation
The accompanying unaudited consolidated financial statements have been
prepared by the Company in accordance with generally accepted accounting
principles for interim financial information and with the instructions to Form
10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do not include all of
the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, the
accompanying unaudited consolidated financial statements contain all
adjustments, consisting only of those of a normal recurring nature, necessary
for a fair presentation of the Company's financial position, results of
operations and cash flows at the dates and for the periods indicated. While the
Company believes that disclosures presented are adequate to make the
information not misleading, these unaudited consolidated financial statements
should be read in conjunction with the audited financial statements and related
notes for the year ended December 31, 2002 which are contained in the Company's
Annual Report on Form 10-K filed with the Securities and Exchange Commission.
The results of the three and nine months ended September 30, 2003 are not
necessarily indicative of the results to be expected for the full year. Certain
prior year amounts in the consolidated financial statements have been
reclassified to conform to the current year's presentation.
(3) Interest in the MSV Joint Venture
On November 26, 2001, through its MSV Investors Subsidiary, the Company
purchased an interest in the MSV Joint Venture in the form of a convertible
note with a principal amount of $50.0 million. Immediately prior to the
purchase of the convertible note, the Company contributed $40.0 million to the
MSV Investors Subsidiary and a group of unaffiliated third parties collectively
contributed $10.0 million. The note bears interest at a rate of 10% per year,
has a maturity date of November 26, 2006, and is convertible at any time at the
option of the MSV Investors Subsidiary into equity interests in the MSV Joint
Venture.
On August 13, 2002, the MSV Joint Venture completed a rights offering
allowing its investors to purchase their pro rata share of an aggregate $3.0
million of newly issued convertible notes with terms similar to the convertible
note already held by the MSV Investors Subsidiary. The MSV Investors Subsidiary
exercised its basic and over subscription rights and purchased approximately
$1.1 million of the convertible notes. The group of unaffiliated third parties
collectively contributed $0.2 million to the MSV Investors Subsidiary in
connection with the MSV Joint Venture rights offering.
Pursuant to the joint venture agreement among the partners of the MSV
Joint Venture (the "MSV Joint Venture Agreement"), in the event that the MSV
Joint Venture had received final regulatory approval from the FCC, as that
phrase is defined in the MSV Joint Venture Agreement, by March 31, 2003 for its
ATC applications, the Other MSV Investors would have been obligated to invest
an additional $50.0 million in the MSV Joint Venture. As the final regulatory
approval from the FCC, as defined in the MSV Joint Venture Agreement, was not
received by March 31, 2003, the additional investment was not required.
However, the Other MSV Investors retained the option to invest the $50.0
million at the same terms and conditions until June 30, 2003. Prior to its
expiration, the option was extended until August 2003. On August 8, 2003, the
MSV Joint Venture Agreement was amended and certain of the Other MSV Investors
agreed to invest $3.7 million in the MSV Joint Venture and retain the option to
invest an additional $17.6 million under certain terms and conditions. This new
option will expire either December 31, 2003 or March 31, 2004, depending on
when certain regulatory appeals are decided. Under the amended MSV Joint
Venture Agreement, the convertible notes held by the MSV Investors Subsidiary
will automatically convert into equity interests in the MSV Joint Venture upon
additional equity investments at a valuation of the MSV Joint Venture equal to
or greater than the valuation at the time the MSV Investors Subsidiary
purchased the notes. Such additional equity investments must total $41.6
million if made by December 31, 2003 and will need to increase thereafter by an
amount equal to the additional interest accrued on the MSV Joint Venture's
outstanding debt. Currently, the MSV Investors Subsidiary owns, upon
conversion, approximately 30.3% of the equity interests in the MSV Joint
Venture. If the Other MSV Investors exercise their option, the MSV Investors
Subsidiary would own, upon conversion, approximately 27.4% of the equity
interests.
The $10.2 million received from unaffiliated persons as an investment into
the MSV Investors Subsidiary, as well as their share of the equity in earnings
of the MSV Investors Subsidiary, is reflected in the accompanying consolidated
financial statements as minority interest.
(4) Business Transactions
In May 2002, the Company acquired Series B Preferred Shares and a warrant
from Miraxis for approximately $0.4 million, representing an ownership of
approximately 30%. Miraxis is a development stage, privately held
telecommunications company that has access to a Ka-band license with which it
intends to provide satellite based multi-channel, broadband data and video
services in North America. The Company has the right to appoint two of the
seven directors of the manager of Miraxis. Additionally, the Company entered
into a management support agreement with Miraxis under which the Company's
current Chief Executive Officer and President provided certain services to
Miraxis through February 2003 in exchange for additional Series B Preferred
Shares and warrants being issued to the Company. In addition, in December 2002,
the Company acquired Series C Preferred Shares and warrants from Miraxis for
approximately $0.1 million.
In February 2003, the Company entered into a consulting agreement with
Miraxis pursuant to which Miraxis personnel provided services to the Company
through May 2003. In addition, Miraxis extended the management support
agreement whereby the Company's current Chief Executive Officer and President
continued to provide certain services to Miraxis through May 2003. In
connection with these agreements, the Company paid Miraxis approximately
$40,000 but also received additional Series C Preferred Shares and warrants.
In April 2003, the Company acquired additional Series C Preferred Shares
and warrants for approximately $40,000. Subsequent to June 2003, the Company
purchased promissory notes from Miraxis with an aggregate principal amount of
approximately $0.1 million. In November 2003, the promissory notes were
converted to Series D Preferred Shares. Currently, the Company holds
approximately 40.1% of the ownership interests of Miraxis.
The Company's President and Chief Executive Officer currently holds an
approximate 1.0% interest in Miraxis. Miraxis License Holdings, LLC ("MLH"), an
entity unaffiliated with Miraxis, other than as described below, holds the
rights to certain orbital slots that Miraxis has acquired access to in order to
implement its business plan. Miraxis is in the process of issuing 10% of its
outstanding common equity on a fully diluted basis to MLH in exchange for
access to those slots. Prior to becoming affiliated with the Company, its Chief
Executive Officer and President acquired a 2.0% interest in MLH. In addition,
an affiliate of the Company's preferred stockholders holds an approximate 70.0%
interest in MLH.
In May 2003, the Company acquired Series B Preferred Shares from IQStat
for approximately $0.3 million, representing an ownership interest of
approximately 5.2%. IQStat is a privately held company with technology that
will enable it to measure radio listening habits and transmit the data over a
national wireless communications network to IQStat's operations center. IQStat
intends to market the aggregated data to broadcasters and advertisers to allow
real-time tracking of consumer behavior.
In August 2003, the Company signed an agreement to acquire, through a
newly formed subsidiary, approximately 66.7% (on a fully-diluted basis) of
Verestar. Verestar is a global provider of integrated satellite and fiber
services to government organizations, multi-national corporations,
broadcasters, and communications companies. Concurrent with the signing of the
definitive purchase agreement, the Company purchased a 10% senior secured note
with a principal balance of $2.5 million and a due date of August 2007. Closing
of the purchase agreement is subject to Verestar achieving certain concessions
from its satellite and terrestrial vendors, approval by the FCC, and other
customary closing conditions. At closing, if it occurs, the Company will
provide nominal consideration to the existing owner of Verestar in exchange for
its equity interest. Furthermore, at closing, assuming it occurs, the Company
will, subject to certain terms and conditions, purchase up to an additional
$7.0 million in principal of senior secured notes from Verestar.
In August 2003, for nominal consideration, the Company acquired all of the
outstanding common stock of ESP, a product development and engineering services
firm that creates products for and provides consulting and engineering services
to the telecommunications, broadband, satellite communications, and wireless
industries. Subsequent to the stock purchase, the Company agreed to purchase up
to $0.8 million of senior secured promissory notes from ESP and up to an
additional $0.6 million of senior secured promissory notes if ESP meets certain
financial performance metrics. As of September 30, 2003, the Company has
purchased approximately $0.2 million in principal of these senior secured
notes. ESP is expected to make restricted stock grants to its employees
representing an aggregate of 30% of ESP's outstanding equity, diluting the
Company's ownership to 70%.
The investments in Miraxis and IQStat are included in "Investments in
Affiliates" on the accompanying consolidated balance sheets. The investments
are being accounted for under the equity method with the Company's share of
Miraxis' and IQStat's loss being recorded in "Loss on Investments in
Affiliates" on the accompanying consolidated statements of operations.
(5) Stock Option Plans
The Company accounts for its stock option plan in accordance with SFAS No.
123, "Accounting for Stock-Based Compensation" ("SFAS No. 123"), which allows
entities to continue to apply the provisions of APB Opinion No. 25, "Accounting
for Stock Issued to Employees" ("APB Opinion No. 25"), as clarified by
Financial Accounting Standards Board ("FASB") Interpretation No. 44,
"Accounting For Certain Transactions Involving Stock Compensation," and
provides pro forma net income and pro forma earnings per share disclosures for
employee stock option grants made in 1995 and future years as if the
fair-value-based method, as defined in SFAS No. 123, had been applied. The
Company has elected to apply the provisions of APB Opinion No. 25 and provide
the pro forma disclosure required by SFAS No. 123.
APB Opinion No. 25 does not require the recognition of compensation
expense for stock options granted to employees at fair market value. However,
any modification to previously granted awards generally results in compensation
expense or contra-expense recognition using the cumulative expense method,
calculated based on quoted prices of the Company's common stock and vesting
schedules of underlying awards. As a result of the re-pricing of certain stock
options in 2001, for the three and nine months ended September 30, 2002, the
Company recognized compensation contra-expense of approximately $13,000 and
$0.2 million, respectively, resulting from the decrease in the price of the
Company's common stock from December 31, 2001 to September 30, 2002. For the
three and nine months ended September 30, 2003, the Company recognized
compensation expense of approximately $0.3 million and $0.4 million,
respectively, relating to the re-pricing of certain stock options in 2001 and
2002.
The following table provides a reconciliation of net loss to pro forma net
loss as if the fair value method had been applied to all awards:
Three Months Ended September 30, Nine Months Ended September 30,
--------------------------------- --------------------------------
2002 2003 2002 2003
------------- ---------------- ------------- ---------------
Net (loss) income, as reported $(14,705) $59 $(4,424) $(399)
(Deduct) Add: Stock-based compensation
(contra-expense) expense, as reported (13) 297 (228) 419
Deduct: Total stock-based compensation expense
determined under fair value based method for
all awards (140) (68) (621) (314)
------------- ---------------- ------------- ---------------
Pro forma net (loss) income $(14,858) $288 $(5,273) $(294)
============= ================ ============= ===============
Basic and diluted net loss attributable
to common stockholders per share:
As reported $(1.15) $(0.16) $(1.23) $(0.49)
Pro forma $(1.16) $(0.14) $(1.31) $(0.49)
For the three and nine months ended September 30, 2002, the Company issued
options to purchase 25,000 shares of common stock at a weighted average fair
value of $1.22 using the Black-Scholes option pricing model. For the three
months ended September 30, 2003, the Company issued options to purchase 40,000
shares of common stock at a weighted average fair value of $1.26 using the
Black-Scholes option pricing model. For the nine months ended September 30,
2003, the Company issued options to purchase 235,000 shares of common stock at
a weighted average fair value of $0.83 using the Black-Scholes option pricing
model.
(6) Discontinued Operations
At the end of the third quarter of 2001, a decision to discontinue the
operations of Rare Medium, Inc. and its LiveMarket subsidiary was made in light
of their performance and prospects. As of September 30, 2003, cash of
approximately $0.1 million (excluding the $0.3 million of cash collateralizing
a letter of credit) was the remaining asset of Rare Medium, Inc. and
LiveMarket. The liabilities of these subsidiaries totaled approximately $2.8
million, consisting of accounts payable and accrued expenses. Included in the
total liabilities of these subsidiaries is $1.0 million related to a lease
obligation which is guaranteed by the Company. The total maximum potential
liability of this guarantee is $3.2 million, subject to certain defenses by the
Company. Rare Medium, Inc. holds $0.3 million of cash in a certificate of
deposit which is maintained as collateral for a letter of credit supporting the
lease obligation. For the three and nine months ended September 30, 2002, the
Company recognized a gain of approximately $0.4 million and $11.9 million,
respectively, as a result of the settlement of Rare Medium, Inc. liabilities at
amounts less than their recorded amounts. For the three and nine months ended
September 30, 2003, the Company recognized a gain of approximately $0.3 million
and $0.9 million, respectively, as a result of the settlement of Rare Medium,
Inc. liabilities at amounts less than their recorded amounts.
(7) Contingencies
Motient Notes
On May 1, 2002, to mitigate the risk, uncertainties and expenses
associated with Motient's plan of reorganization, the Company cancelled the
outstanding amounts due under the original promissory notes issued by Motient
and accepted a new note in the principal amount of $19.0 million (the "New
Motient Note") that was issued by a new, wholly-owned subsidiary of Motient
that owns 100% of Motient's interests in the MSV Joint Venture ("MSV Holdings
Inc."). The New Motient Note is due on May 1, 2005 and bears interest at a rate
of 9% per annum. Although the New Motient Note is unsecured, there are material
restrictions placed on MSV Holdings Inc.'s assets, and MSV Holdings Inc. is
prohibited from incurring or guarantying any debt in excess of $21.0 million
(including the New Motient Note). Additionally, there are events of default
(e.g., a bankruptcy filing by Motient) that would accelerate the due date of
the New Motient Note. As a result of the uncertainty with respect to the
ultimate collection on the New Motient Note, a reserve continues to be
maintained for the entire amount of the note. If the Company recovers any
amount on the New Motient Note, adjustments to the reserve would be reflected
in the accompanying consolidated statements of operations.
Litigation
On November 19, 2001, five of the Company's shareholders filed a complaint
against the Company, certain of its subsidiaries and certain of their current
and former officers and directors in the United States District Court for the
Southern District of New York, Dovitz v. Rare Medium Group, Inc. et al., No. 01
Civ. 10196. Plaintiffs became owners of restricted Company stock when they sold
the company that they owned to the Company. Plaintiffs assert the following
four claims against defendants: (1) common-law fraud; (2) violation of Section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder; (3) violation of the Michigan Securities Act; and (4) breach of
fiduciary duty. These claims arise out of alleged representations by defendants
to induce plaintiffs to enter into the transaction. The complaint seeks
compensatory damages of approximately $5.6 million, exemplary and/or punitive
damages in the same amount, as well as attorney fees. On January 25, 2002, the
Company filed a motion to dismiss the complaint in its entirety. On June 3,
2002, the Court dismissed the matter without prejudice. On or about July 17,
2002, the plaintiffs filed an amended complaint asserting similar causes of
action to those asserted in the original complaint. On September 12, 2002, the
Company filed a motion to dismiss on behalf of itself and its current and
former officers and directors. On March 7, 2003, the Court denied the motion to
dismiss, and discovery commenced. The Company intends to continue to dispute
this matter vigorously.
The Company and certain of its subsidiaries (along with the Engelhard
Corporation) are parties to an arbitration relating to certain agreements that
existed between or among the claimant and ICC Technologies, Inc., the Company's
former name, and the Engelhard/ICC ("E/ICC") joint venture arising from the
desiccant air conditioning business that the Company and its subsidiaries sold
in 1998. The claimant has sought $8.5 million for (1) its alleged out of pocket
losses in investing in certain of E/ICC's technology; (2) unjust enrichment
resulting from the reorganization of E/ICC in 1998; and (3) lost profits
arising from the fact that it was allegedly forced to leave the air
conditioning business when the E/ICC joint venture was dissolved. The Company
intends to vigorously dispute this action.
On July 26, 2002, plaintiffs James D. Loeffelbein, Terrie L. Pham and
certain related parties filed suit against the lead plaintiff's counsel in the
class action lawsuit, the Company, certain of its current and former officers,
its former investor relations firm and a former employee of plaintiff
Loeffelbein in the District Court of Johnson County, Kansas, Loeffelbein v.
Milberg Weiss Bershad Hynes & Lerach, LLP, et al., 02 CV 04867. The plaintiffs
assert claims for fraud, negligence and breach of fiduciary duty against all of
the Company and certain of its current and former officers in connection with
allegedly false statements purportedly made to the plaintiffs. The plaintiffs
have sought unspecified damages from the defendants. On September 11, 2002, the
matter was removed to the United States District Court for the District of
Kansas (the "Federal District Court"). On October 11, 2002, the plaintiffs
sought to have the matter remanded to state court. On May 7, 2003, the Federal
District Court denied the plaintiffs request to remand the matter as it related
to the Company, the Company defendants and an additional defendant. On June 9,
2003, the Company and Company defendants filed a motion to dismiss. On August
4, 2003, the plaintiffs responded. On October 12, 2003, the Federal District
Court dismissed the action, holding that it lacked personal jurisdiction over
the Company and the Company defendants and, accordingly, found it unnecessary
to rule upon the Company's other bases for dismissal. The Company intends to
vigorously oppose any efforts by the plaintiffs should they appeal the decision
or refile the matter in a different jurisdiction.
Though it intends to continue to vigorously contest each of the
aforementioned cases, the Company is unable to predict their respective
outcomes, or reasonably estimate a range of possible losses, if any, given the
current status of these cases. Additionally, from time to time, the Company is
subject to litigation in the normal course of business. The Company is of the
opinion that, based on information presently available, the resolution of any
such additional legal matters will not have a material adverse effect on the
Company's financial position or results of its operations.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
This report contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 that involve risks and uncertainties, including statements
regarding our capital needs, business strategy, expectations and intentions. We
urge you to consider that statements that use the terms "believe," "do not
believe," "anticipate," "expect," "plan," "estimate," "intend" and similar
expressions are intended to identify forward-looking statements. These
statements reflect our current views with respect to future events and because
our business is subject to numerous risks, uncertainties and risk factors, our
actual results could differ materially from those anticipated in the
forward-looking statements, including those set forth below under this "Item 2.
Management's Discussion and Analysis of Financial Condition and Results of
Operations" and elsewhere in this report. Actual results will most likely
differ from those reflected in these statements, and the differences could be
substantial. We disclaim any obligation to publicly update these statements, or
disclose any difference between our actual results and those reflected in these
statements. The information constitutes forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995.
Overview
We operate our business through a group of complementary subsidiaries in
the telecommunications industry, including the MSV Joint Venture, ESP, and
Miraxis. Consistent with this strategy, in August 2003, we signed an agreement
to acquire control of Verestar, a global provider of integrated satellite and
fiber services to government organizations, multi-national corporations,
broadcasters and communications companies. Closing of the purchase agreement
is subject to Verestar achieving certain concessions from its satellite and
terrestrial vendors, approval by the FCC, and other customary closing
conditions.
Through our 80% owned MSV Investors Subsidiary, we are an active
participant in the MSV Joint Venture, a joint venture that also includes TMI
Communications, Inc., Motient, and the Other MSV Investors. The MSV Joint
Venture is currently a provider of mobile digital voice and data communications
services via satellite in North America. We have designated three members of
the 12-member board of directors of the MSV Joint Venture's corporate general
partner.
On February 10, 2003, the FCC released an order relating to an application
submitted by the MSV Joint Venture and certain of its competitors that could
greatly expand the scope of the MSV Joint Venture's business by permitting the
incorporation of ancillary terrestrial base stations into its mobile satellite
network. A similar application is pending before Industry Canada, the FCC's
counterpart in Canada. The MSV Joint Venture cannot expand its mobile satellite
services business using ATC base stations into Canada until this application
pending before Industry Canada is approved. With the FCC's issuance of the ATC
order, we expects the MSV Joint Venture to enter a new stage of development
which requires significant future funding requirements and/or a need for one or
more strategic partners.
On August 25, 2003, for nominal consideration, we purchased all of the
outstanding common stock of ESP, a product development firm that creates
products for and provides consulting and engineering services targeted toward
the telecommunications, broadband, satellite communications, and wireless
industries. Through the purchase of ESP, we acquired an additional 16.1% of
IQStat, raising our total stake to 21.3%. IQStat is a privately held company
that measures radio listening habits and transmits the data over a national
wireless communications network to IQStat's operations center. IQStat intends
to market the aggregated data to broadcasters and advertisers to allow
real-time tracking of consumer behavior.
On May 28, 2002, we became affiliated with Miraxis, a development stage
company that has access to a Ka-band license with which it intends to provide
satellite based multi-channel, broadband data and video services in North
America.
On August 29, 2003, the Company signed an agreement to acquire, through a
newly formed subsidiary, approximately 66.7% (on a fully-diluted basis) of
Verestar. Closing of the definitive purchase agreement is subject to Verestar
achieving certain concessions from its satellite and terrestrial vendors,
approval by the FCC, and other customary closing conditions. If the transaction
closes as expected in the fourth quarter of 2003, we expect to consolidate the
operating results of Verestar after the date of closing. To the extent we are
not permitted to consolidate Verestar's operating results due to FIN No. 46 (as
defined and discussed below), we expect to provide supplemental disclosure of
the items required by this Item 2.
From 1998 through the third quarter of 2001, our principal business was
conducted through Rare Medium, Inc., which developed Internet e-commerce
strategies, business processes, marketing communications, branding strategies
and interactive content using Internet-based technologies and solutions. As a
result of the weakening of general economic conditions that caused many
companies to reduce spending on Internet-focused business solutions and in
light of their performance and prospects, a decision to discontinue Rare
Medium, Inc.'s operations, along with those of LiveMarket, was made at the end
of the third quarter of 2001. As such, the results of Rare Medium, Inc. and
LiveMarket are reflected as discontinued operations.
From 1999 through the first quarter of 2001, we made venture investments
by taking strategic minority equity positions in other independently managed
companies. Additionally, during that period, we developed, managed and operated
Start-up Companies. During the first quarter of 2001, we reduced our focus on
these businesses and substantially ceased providing funding to our Start-up
Companies.
As a result of the decision to discontinue the operations of Rare Medium,
Inc. and its subsidiary LiveMarket, the results of operations of these
businesses have also been accounted for as discontinued operations.
Accordingly, our discussion in the section entitled "Results of Operations"
focuses on our continuing operations and includes our results and those of our
MSV Investors Subsidiary, ESP and certain of our Start-up Companies up to their
respective dates of dissolution.
Results of Operations for the Three Months Ended September 30, 2003 Compared
to the Three Months Ended September 30, 2002
Revenues
Revenues are derived from fees generated for product development,
consulting and engineering services performed by ESP, including reimbursable
travel and other out-of-pocket expenses, and the sales of its electronic
database of parts commonly used in printed circuit design. Revenues from
contracts for services that ESP provides its clients are recognized on a
time-and-materials or on a percentage-of-completion basis. Revenues from
time-and-materials service contracts are recognized as the services are
provided. For service contracts where revenue is recognized under the
percentage-of-completion basis, revenues recognized in excess of billings would
be recorded as work in progress on the accompanying balance sheet. Billings in
excess of revenues recognized are recorded as deferred revenue. Losses on
contracts are recognized during the period in which the loss first becomes
probable and reasonably estimable. Contract losses are determined to be the
amount by which the estimated costs of the contract exceed the estimated total
revenues that will be generated by the contract.
Revenues for the three months ending September 30, 2003 increased to $0.2
million from nil for the three months ended September 30, 2002, an increase of
$0.2 million. This increase was due to the acquisition of ESP on August 25,
2003. In future periods, we expect to report an increase in revenues from
services performed by ESP, as a full three months of ESP's operating results
will be included.
Cost of Revenues
Cost of revenues includes the salaries and related employee benefits for
ESP employees that provide billable product development, consulting and
engineering services, as well as the cost of reimbursable expenses. Cost of
revenues for the three months ending September 30, 2003 increased to $0.2
million from nil for the three months ended September 30, 2002, an increase of
$0.2 million. This increase was due to the acquisition of ESP on August 25,
2003. In future periods, we expect cost of revenues from services performed by
ESP to increase, as a full three months of ESP's operating results will be
included.
Selling, General and Administrative Expense
Selling, general and administrative expense includes facilities costs,
finance, legal and other corporate costs, as well as the salaries and related
employee benefits for those employees that support such functions. Selling,
general and administrative expense for the three months ending September 30,
2003 increased to $1.5 million from $1.3 million for the three months ended
September 30, 2002, an increase of $0.2 million. This increase was primarily
related to the $0.2 million of expenses incurred by ESP after the August 25,
2003 acquisition and the recognition of a $0.3 million non-cash compensation
expense in the three months ended September 30, 2003 relating to the re-pricing
of certain stock options which occurred in 2001 and 2002, partially offset by a
$0.3 million insurance claim payment related to the class action lawsuit
settled in January 2003. As these costs relate to our current operations,
including ESP, we expect our selling, general and administrative expense,
excluding any non-cash compensation expense arising from fluctuations in the
price of our common stock in association with the repricing of certain stock
options in 2001 and 2002, to increase in future periods as a full three month
of ESP's operating results will be included.
Depreciation and Amortization Expense
Depreciation and amortization expense consists of the depreciation of
property and equipment and the amortization of the financing costs associated
with the issuance of our Series A convertible preferred stock. Depreciation and
amortization expense for the three months ended September 30, 2003 decreased to
approximately $13,000 from $28,000 for the three months ended September 30,
2002, a decrease of approximately $15,000. This decrease is primarily the
result of the reduction in property and equipment used in our continuing
operations, partially offset by the depreciation of ESP's property and
equipment after the August 2003 acquisition. As our capital expenditures remain
nominal, we expect depreciation and amortization expense to remain at this
level in future periods.
Interest Income, Net
Interest income, net for the three months ended September 30, 2003 is
mainly comprised of the interest earned on our cash, cash equivalents, and
short-term investments and on our notes receivable from the MSV Joint Venture
and Verestar.
Loss on Investment in Affiliates
For the three months ended September 30, 2003, we recorded a loss on
investments in affiliates of approximately $0.1 million relating primarily to
the reserve for the promissory note issued by Miraxis and for our proportionate
share of IQStat's operating loss. For the three months ending September 30,
2002, we recorded a loss on investments in affiliates of approximately $0.2
million for our proportionate share of Miraxis' operating loss. We will
continue to monitor the carrying value of our remaining investments in
affiliates.
Minority Interest
For the three months ended September 30, 2003 and 2002, we recorded
minority interest of approximately $0.3 million relating to the equity in
earnings, primarily the interest income earned on the convertible notes from
the MSV Joint Venture, which is attributable to the group of unaffiliated third
parties who invested approximately $10.2 million in our MSV Investors
Subsidiary.
Gain from Discontinued Operations
At the end of the third quarter of 2001, a decision to discontinue the
operations of Rare Medium, Inc. and its LiveMarket subsidiary was made in light
of their performance and prospects. For the three months ended September 30,
2003 and 2002, we recognized a gain of approximately $0.3 million and $0.4
million, respectively, as a result of the settlement of Rare Medium, Inc.
liabilities at amounts less than their recorded amounts.
Net Loss Attributable to Common Stockholders
For the three months ended September 30, 2003, we recorded a net loss
attributable to common stockholders of approximately $2.4 million. The loss was
due to the approximate $0.1 million net income and the $2.4 million of non-cash
deemed dividends and accretion related to the issuance of our Series A
convertible preferred stock. Dividends were accrued related to the pay-in-kind
dividends payable quarterly on Series A convertible preferred stock and to the
accretion of the carrying amount of the Series A convertible preferred stock up
to its $100 per share face redemption amount over 13 years.
Results of Operations for the Nine Months Ended September 30, 2003 Compared
to the Nine Months Ended September 30, 2002
Revenues
Revenues are derived from fees generated for product development,
consulting and engineering services performed by ESP, including reimbursable
travel and other out-of-pocket expenses, and the sales of its electronic
database of parts commonly used in printed circuit design. Revenues from
contracts for services that ESP provides its clients are recognized on a
time-and-materials or on a percentage-of-completion basis. Revenues from
time-and-materials service contracts are recognized as the services are
provided. For service contracts where revenue is recognized under the
percentage-of-completion basis, revenues recognized in excess of billings would
be recorded as work in progress on the accompanying balance sheet. Billings in
excess of revenues recognized are recorded as deferred revenue. Losses on
contracts are recognized during the period in which the loss first becomes
probable and reasonably estimable. Contract losses are determined to be the
amount by which the estimated costs of the contract exceed the estimated total
revenues that will be generated by the contract.
Revenues for the nine months ending September 30, 2003 increased to $0.2
million from nil for the nine months ended September 30, 2002, an increase of
$0.2 million. This increase was due to the acquisition of ESP on August 25,
2003. In future periods, we expect to report an increase in revenues from
services performed by ESP, as a full period of ESP's operating results will be
included.
Cost of Revenues
Cost of revenues includes the salaries and related employee benefits for
ESP employees that provide billable product development, consulting and
engineering services, as well as the cost of reimbursable expenses. Cost of
revenues for the nine months ending September 30, 2003 increased to $0.2
million from nil for the nine months ended September 30, 2002, an increase of
$0.2 million. This increase was due to the acquisition of ESP on August 25,
2003. In future periods, we expect cost of revenues from services performed by
ESP to increase, as a full period of ESP's operating results will be included.
Selling, General and Administrative Expense
Selling, general and administrative expense includes facilities costs,
finance, legal and other corporate costs, as well as the salaries and related
employee benefits for those employees that support such functions. Selling,
general and administrative expense for the nine months ending September 30,
2003 decreased to $4.8 million from $4.9 million for the nine months ended
September 30, 2002, a decrease of $0.1 million. This decrease was primarily
related to the $1.1 million charge recognized in the nine months ended
September 30, 2002 related to the settlement of the class action lawsuit and
the reduced legal and advisory fees after the settlement of the class action
lawsuit and the $0.3 million insurance claim payment related to the costs
associated with the class action lawsuit, partially offset by the $0.2 million
of expenses incurred by ESP after the August 25, 2003 acquisition, the
approximately $0.4 million charge recognized in the nine months ended September
30, 2003 relating to the severance for the Company's former Controller and
former Treasurer and the $0.2 million compensation contra-expense and $0.4
million compensation expense recognized in the nine months ended September 30,
2002 and 2003, respectively, relating to the re-pricing of certain stock
options in 2001 and 2002. As these costs relate to our current operations,
including ESP, we expect our selling, general and administrative expense,
excluding any non-cash compensation expense arising from fluctuations in the
price of our common stock in association with the repricing of certain stock
options in 2001 and 2002, to increase in future periods as a full period of
ESP's operating results will be included.
Depreciation and Amortization Expense
Depreciation and amortization expense consists of the depreciation of
property and equipment and the amortization of the financing costs associated
with the issuance of our Series A convertible preferred stock. Depreciation and
amortization expense for the nine months ended September 30, 2003 decreased to
approximately $26,000 from $0.1 million for the nine months ended September 30,
2002, a decrease of approximately $0.1 million. This decrease is primarily the
result of the reduction in property and equipment used in our continuing
operations, partially offset by the depreciation of ESP's property and
equipment after the August 2003 acquisition. As our capital expenditures remain
nominal, we expect depreciation and amortization expense to remain at this
level in future periods.
Interest Income, Net
Interest income, net for the nine months ended September 30, 2003 is
mainly comprised of the interest earned on our cash, cash equivalents, and
short-term investments and on our notes receivable from the MSV Joint Venture
and Verestar.
Loss on Investment in Affiliates
For the nine months ended September 30, 2003, we recorded a loss on
investments in affiliates of approximately $0.3 million relating primarily to
the reserve for the promissory note issued by Miraxis and for our proportionate
share of Miraxis' and IQStat's operating loss. For the nine months ending
September 30, 2002, we recorded a loss on investments in affiliates of
approximately $0.2 million for our proportionate share of Miraxis' operating
loss. We will continue to monitor the carrying value of our remaining
investments in affiliates.
Minority Interest
For the nine months ended September 30, 2003 and 2002, we recorded
minority interest of approximately $0.8 million and $0.7 million, respectively,
relating to the equity in earnings, primarily the interest income earned on the
convertible notes from the MSV Joint Venture, which is attributable to the
group of unaffiliated third parties who invested approximately $10.2 million in
our MSV Investors Subsidiary.
Gain from Discontinued Operations
At the end of the third quarter of 2001, a decision to discontinue the
operations of Rare Medium, Inc. and its LiveMarket subsidiary was made in light
of their performance and prospects. For the nine months ended September 30,
2003 and 2002, we recognized a gain of approximately $0.9 million and $11.9
million, respectively, as a result of the settlement of Rare Medium, Inc.
liabilities at amounts less than their recorded amounts.
Net Loss Attributable to Common Stockholders
For the nine months ended September 30, 2003, we recorded a net loss
attributable to common stockholders of approximately $7.6 million. The loss was
due to the $0.4 million net loss and the $7.2 million of non-cash deemed
dividends and accretion related to the issuance of our Series A convertible
preferred stock. Dividends were accrued related to the pay-in-kind dividends
payable quarterly on Series A convertible preferred stock and to the accretion
of the carrying amount of the Series A convertible preferred stock up to its
$100 per share face redemption amount over 13 years.
Liquidity and Capital Resources
We had $31.6 million in cash, cash equivalents and short-term investments
as of September 30, 2003. Cash used in operating activities from continuing
operations was $3.5 million for the nine months ended September 30, 2003 and
resulted primarily from cash used for general corporate overhead including
payroll and professional fees. We expect cash used in continuing operations to
remain at approximately this level in future periods. Cash used by discontinued
operations was $0.4 million for the nine months ended September 30, 2003 and
resulted from cash used for settlement of vendor liabilities and legal and
advisory fees.
For the nine months ended September 30, 2003, cash used in investing
activities from continuing operations, excluding purchases and sales of
short-term investments, was approximately $2.8 million and primarily consisted
of $2.5 million used to purchase the senior secured promissory note from
Verestar and $0.4 million used to purchase investments in IQStat and Miraxis.
Other than our agreements with ESP and Verestar as described below, we do not
have any future funding commitments with respect to any of our investments.
However, we expect that the MSV Joint Venture, Miraxis, and IQStat will require
additional funding from time to time, and we may choose to provide additional
funding, subject to our liquidity and capital resources at the time.
For the nine months ended September 30, 2003, cash used in financing
activities was approximately $1.2 million and resulted primarily from the
repurchase of shares of common stock in the tender offer as described below.
Motient Promissory Notes
On May 1, 2002, to mitigate the risk, uncertainties and expenses
associated with Motient's plan of reorganization, we cancelled the outstanding
amounts due under the original promissory notes issued by Motient and accepted
a new note in the principal amount of $19.0 million that was issued by MSV
Holding, Inc., a new, wholly-owned subsidiary of Motient that owns 100% of
Motient's interests in the MSV Joint Venture. The New Motient Note is due on
May 1, 2005 and bears interest at a rate of 9% per annum. Although the New
Motient Note is unsecured, there are material restrictions placed on the use of
MSV Holdings Inc.'s assets, and MSV Holdings Inc. is prohibited from incurring
or guarantying any debt in excess of $21.0 million (including the New Motient
Note). Additionally, there are events of default (e.g., a bankruptcy filing by
Motient) that would accelerate the due date of the New Motient Note. As a
result of the uncertainty with respect to the ultimate collection on the New
Motient Note, a reserve continues to be maintained for the entire amount of the
note. If we recover any amount on the New Motient Note, adjustments to the
reserve would be reflected in the accompanying consolidated statements of
operations. Furthermore, we have been conducting periodic discussions with
Motient concerning alternatives related to the New Motient Note including the
exchange of such note, or a portion thereof, into an additional equity interest
in the MSV Joint Venture.
MSV Joint Venture Convertible Note Receivable
Through our 80% owned MSV Investors Subsidiary, we are an active
participant in the MSV Joint Venture, a joint venture that also includes TMI
Communications, Inc., Motient and the Other MSV Investors. The MSV Joint
Venture is currently a provider of mobile digital voice and data communications
services via satellite in North America. On November 26, 2001, through our MSV
Investors Subsidiary, we purchased a $50.0 million interest in the MSV Joint
Venture in the form of a convertible note. Immediately prior to the purchase of
the convertible note, Rare Medium Group contributed $40.0 million to the MSV
Investors Subsidiary and a group of unaffiliated third parties collectively
contributed $10.0 million. The note bears interest at a rate of 10% per year,
has a maturity date of November 26, 2006, and is convertible at any time at the
option of our MSV Investors Subsidiary into equity interests in the MSV Joint
Venture.
On August 13, 2002, the MSV Joint Venture completed a rights offering
allowing its investors to purchase their pro rata share of an aggregate $3.0
million of newly issued convertible notes with terms similar to the convertible
note already held by our MSV Investors Subsidiary. The MSV Investors Subsidiary
exercised its basic and over subscription rights and purchased approximately
$1.1 million of the convertible notes. The group of unaffiliated third parties
collectively contributed $0.2 million to the MSV Investors Subsidiary in
connection with the MSV Joint Venture rights offering.
Pursuant to the joint venture agreement among the partners of the MSV
Joint Venture (the "MSV Joint Venture Agreement"), in the event that the MSV
Joint Venture had received final regulatory approval from the FCC, as that
phrase is defined in the MSV Joint Venture Agreement, by March 31, 2003 for its
ATC applications, the Other MSV Investors would have been obligated to invest
an additional $50.0 million in the MSV Joint Venture. As the final regulatory
approval from the FCC, as defined in the MSV Joint Venture Agreement, was not
received by March 31, 2003, the additional investment was not required.
However, the Other MSV Investors retained the option to invest the $50.0
million at the same terms and conditions until June 30, 2003. Prior to its
expiration, the option was extended until August 2003. On August 8, 2003, the
MSV Joint Venture Agreement was amended and certain of the Other MSV Investors
agreed to invest $3.7 million in the MSV Joint Venture and retain the option to
invest an additional $17.6 million under certain terms and conditions. This new
option will expire either December 31, 2003 or March 31, 2004, depending on
when certain regulatory appeals are decided. Under the amended MSV Joint
Venture Agreement, the convertible notes held by the MSV Investors Subsidiary
will automatically convert into equity interests in the MSV Joint Venture upon
additional equity investments at a valuation of the MSV Joint Venture equal to
or greater than the valuation at the time the MSV Investors Subsidiary
purchased the notes. Such additional equity investments must total $41.6
million if made by December 31, 2003 and will need to increase thereafter by an
amount equal to the additional interest accrued on the MSV Joint Venture's
outstanding debt. Currently, our MSV Investors Subsidiary owns, upon
conversion, approximately 30.3% of the equity interests in the MSV Joint
Venture. If the Other MSV Investors exercise their option, our MSV Investors
Subsidiary would own, upon conversion, approximately 27.4% of the equity
interests.
The fair value of the convertible notes approximates book value based on
the equity value of the MSV Joint Venture's recent funding transactions
assuming conversion of such note.
Verestar Senior Secured Promissory Notes
In August 2003, we signed an agreement to acquire, through a newly formed
subsidiary, approximately 66.7% (on a fully-diluted basis) of Verestar.
Verestar is a global provider of integrated satellite and fiber services to
government organizations, multi-national corporations, broadcasters, and
communications companies. Concurrent with the signing of the purchase
agreement, we purchased a 10% senior secured note with a principal balance of
$2.5 million and a due date of August 2007. Closing of the definitive purchase
agreement is subject to Verestar achieving certain concessions from its
satellite and terrestrial vendors, approval by the FCC, and other customary
closing conditions. At closing, if it occurs, we will provide nominal
consideration to the existing owner of Verestar in exchange for its equity
interest. Furthermore, at closing, assuming it occurs, we will, subject to
certain terms and conditions, purchase up to an additional $7.0 million in
principal of senior secured notes from Verestar.
ESP Senior Secured Promissory Notes
In August 2003, for nominal consideration, we acquired all of the
outstanding common stock of ESP, a product development and engineering services
firm that creates products for and provides consulting and engineering services
to the telecommunications, broadband, satellite communications, and wireless
industries. Subsequent to the stock purchase, we agreed to purchase up to $0.8
million of senior secured promissory notes from ESP and up to an additional
$0.6 million of senior secured promissory notes if ESP meets certain financial
performance metrics. As of September 30, 2003, we purchased approximately $0.2
million in principal of these senior secured notes.
Other Transactions
As part of our regular on-going evaluation of business opportunities, we
are currently engaged in a number of separate and unrelated preliminary
discussions concerning possible joint ventures and other transactions
(collectively, the "Transactions"). We are in the early stages of such
discussions and have not entered into any agreement in principle with respect
to any of the Transactions. Prior to consummating any Transaction, we will have
to, among other things, initiate and satisfactorily complete a due diligence
investigation, negotiate the financial and other terms (including price) and
conditions of such Transaction, obtain appropriate board of directors',
regulatory and other necessary consents and approvals and secure financing, to
the extent deemed necessary. We cannot predict if any such Transaction will be
consummated or, if consummated, will result in a financial or other benefit to
us.
Tender Offer
On March 13, 2003, we commenced a cash tender offer at a price of $1.00
per share for up to 2,500,000 shares of our outstanding voting common stock.
The tender offer expired on April 23, 2003 with 968,398 shares purchased by us
for an aggregate cost, including all fees and expenses applicable to the tender
offer, of approximately $1.2 million. The primary purpose of the tender offer
was to provide our public stockholders with additional liquidity for their
shares of common stock, particularly in light of decreased liquidity arising
from the decision of Nasdaq to delist our common stock, and to do so at a
premium over the stock price before the tender offer and without the usual
transaction costs associated with open market sales. Our preferred stockholders
did not sell any shares of common stock in the tender offer.
Recently Issued Accounting Standards
In January 2003, the FASB issued Interpretation No. 46, "Consolidation of
Variable Interest Entities, an Interpretation of ARB No. 51" ("FIN No. 46").
FIN No. 46 provides clarification on the consolidation of certain entities that
do not have sufficient equity at risk for the entity to finance its activities
without additional subordinated financial support from other parties or in
which equity investors do not have certain characteristics of a controlling
financial interest ("variable interest entities" or "VIEs"). FIN No. 46
requires that VIEs be consolidated by the entity considered to be the primary
beneficiary of the VIE and is effective immediately for VIEs created after
January 31, 2003 and in the first fiscal year or interim period beginning after
December 15, 2003 for any VIEs created prior to January 31, 2003. We are
currently reviewing our investments and other arrangements to determine whether
any of our investee companies are VIEs.
In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain
Financial Instruments with Characteristics of Both Liabilities and Equity"
("SFAS No. 150"). SFAS No. 150 establishes standards for how a company
classifies and measures certain financial instruments with characteristics of
both liabilities and equity. It requires the classification of certain
financial instruments as a liability (or in certain circumstances an asset)
because that instrument embodies an obligation of the company. SFAS No. 150 is
effective immediately for instruments entered into or modified after May 31,
2003 and in the first interim period beginning after June 15, 2003 for all
instruments entered into before May 31, 2003. The adoption of SFAS No. 150 did
not have a material impact on our financial position or results of operations.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
As of September 30, 2003, we had $31.6 million of cash, cash equivalents
and short-term cash investments. These cash, cash equivalents and short-term
cash investments are subject to market risk due to changes in interest rates.
In accordance with our investment policy, we diversify our investments among
United States Treasury securities and other high credit quality debt
instruments that we believe to be low risk. We are averse to principal loss and
seek to preserve our invested funds by limiting default risk and market risk.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
Our management, with the participation of our chief executive officer and
principal accounting officer, has evaluated the effectiveness of our disclosure
controls and procedures (as such term is defined in Rules 13a-15(e) and
15d-15(e) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) as of the end of the period covered by this report. Based on such
evaluation, our chief executive officer and principal accounting officer have
concluded that, as of the end of such period, our disclosure controls and
procedures are effective in recording, processing, summarizing and reporting,
on a timely basis, information required to be disclosed by us in the reports
that we file or submit under the Exchange Act.
Internal Control Over Financial Reporting
There have not been any changes in our internal control over financial
reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the
Exchange Act) during the fiscal quarter to which this report relates that have
materially affected, or are reasonably likely to materially affect, our
internal control over financial reporting.
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
On November 19, 2001, five of our shareholders filed a complaint against
us, certain of our subsidiaries and certain of their current and former
officers and directors in the United States District Court for the Southern
District of New York, Dovitz v. Rare Medium Group, Inc. et al., No. 01 Civ.
10196. Plaintiffs became owners of restricted stock when they sold the company
that they owned to us. Plaintiffs assert the following four claims against
defendants: (1) common-law fraud; (2) violation of Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; (3)
violation of the Michigan Securities Act; and (4) breach of fiduciary duty.
These claims arise out of alleged representations by defendants to induce
plaintiffs to enter into the transaction. The complaint seeks compensatory
damages of approximately $5.6 million, exemplary and/or punitive damages in the
same amount, as well as attorney fees. On January 25, 2002, we filed a motion
to dismiss the complaint in its entirety. On June 3, 2002, the Court dismissed
the matter without prejudice. On or about July 17, 2002, the plaintiffs filed
an amended complaint asserting similar causes of action to those asserted in
the original complaint. On September 12, 2002, we filed a motion to dismiss on
behalf of our self and our current and former officers and directors. On March
7, 2003, the Court denied the motion to dismiss, and discovery has commenced.
We intend to continue to dispute this matter vigorously.
We and certain of our subsidiaries (along with the Engelhard Corporation)
are parties to an arbitration relating to certain agreements that existed
between or among the claimant and ICC Technologies, Inc., our former name, and
the Engelhard/ICC ("E/ICC") joint venture arising from the desiccant air
conditioning business that we and our subsidiaries sold in 1998. The claimant
has sought $8.5 million for (a) its alleged out of pocket losses in investing
in certain of E/ICC's technology, (b) unjust enrichment resulting from the
reorganization of E/ICC in 1998, and (c) lost profits arising from the fact
that it was allegedly forced to leave the air conditioning business when the
E/ICC joint venture was dissolved. We intend to vigorously dispute this action.
On July 26, 2002, plaintiffs James D. Loeffelbein, Terrie L. Pham and
certain related parties filed suit against the lead plaintiff's counsel in the
class action lawsuit, us, certain of our current and former officers, our
former investor relations firm and a former employee of plaintiff Loeffelbein
in the District Court of Johnson County, Kansas, Loeffelbein v. Milberg Weiss
Bershad Hynes & Lerach, LLP, et al., 02 CV 04867. The plaintiffs assert claims
for fraud, negligence and breach of fiduciary duty against all of us and
certain of our current and former officers in connection with allegedly false
statements purportedly made to the plaintiffs. The plaintiffs have sought
unspecified damages from the defendants. On September 11, 2002, the matter was
removed to the United States District Court for the District of Kansas. On
October 11, 2002, the plaintiffs sought to have the matter remanded to state
court. On May 7, 2003, the Federal District Court denied the plaintiffs request
to remand the matter as it related to us, our defendants and an additional
defendant. On June 9, 2003, we and our defendants filed a motion to dismiss. On
August 4, 2003, the plaintiffs responded. On October 12, 2003, the Federal
District Court dismissed the action, holding that it lacked personal
jurisdiction over us and our defendants and, accordingly, found it unnecessary
to rule upon our other bases for dismissal. We intend to vigorously oppose any
efforts by the plaintiffs should they appeal the decision or refile the matter
in a different jurisdiction.
Item 2. Changes in Securities
(a) Not applicable
(b) Not applicable
(c) Not applicable
(d) Not applicable
Item 3. Defaults Upon Senior Securities
Not applicable
Item 4. Submissions of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
(a) The following sets forth those exhibits filed pursuant to Item 601 of
Regulation S-K:
Exhibit
Number Description
------- -----------
31.1 - Certification of Jeffrey A. Leddy, Chief Executive
Officer and President of SkyTerra Communications,
Inc., required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as adopted pursuant to Section
302 of the Sarbanes-Oxley Act of 2002.
31.2 - Certification of Craig J. Kaufmann, Controller and
Treasurer of SkyTerra Communications, Inc., required
by Rule 13a-14(a) of the Securities Exchange Act of
1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 - Certification of Jeffrey A. Leddy, Chief Executive
Officer and President of SkyTerra Communications,
Inc., Pursuant to 18 U.S.C Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of
2002.
32.2 - Certification of Craig J. Kaufmann, Controller and
Treasurer of SkyTerra Communications, Inc., Pursuant
to 18 U.S.C Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
(b) The following sets forth the Company's reports on Form 8-K that have
been filed during the quarter for which this report is filed:
On September 3, 2003, the Company filed a report on Form 8-K (i)
announcing the acquisition of all of the outstanding equity of
Electronic System Products, Inc.; (ii) announcing the signing of a
definitive purchase agreement to acquire approximately 67% (on a
fully diluted basis) of the outstanding equity of Verestar, Inc.;
(iii) announcing the purchase of a $2.5 million of senior secured
note from Verestar, Inc.; and (iv) announcing that the Board of
Directors had approved the change of the Company's name to SkyTerra
Communications, Inc.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, this Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
Date: November 14, 2003 By: /s/ JEFFREY A. LEDDY
-----------------------------------
Jeffrey A. Leddy
Chief Executive Officer and President
(Principal Executive Officer and
Principal Financial Officer)
Date: November 14, 2003 By: /s/ CRAIG J. KAUFMANN
-----------------------------------
Craig J. Kaufmann
Controller and Treasurer
(Principal Accounting Officer)
Exhibit 31.1
CERTIFICATIONS
I, Jeffrey A. Leddy, certify that:
1. I have reviewed this Form 10-Q of SkyTerra Communications, Inc.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this
report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
c) disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
function):
a) all significant deficiencies in the design or operation of
internal controls over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: November 14, 2003 By: /s/ JEFFREY A. LEDDY
----------------------------
Jeffrey A. Leddy
Chief Executive Officer and President
(Principal Executive Officer and
Principal Financial Officer)
Exhibit 31.2
CERTIFICATIONS
I, Craig J. Kaufmann, certify that:
1. I have reviewed this Form 10-Q of SkyTerra Communications, Inc.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to
the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this
report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the
registrant and have:
a) designed such disclosure controls and procedures, or caused such
disclosure controls procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
c) disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
function):
a) all significant deficiencies in the design or operation of
internal controls over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: November 14, 2003 By: /s/ CRAIG J. KAUFMANN
-------------------------------
Craig J. Kaufmann
Controller and Treasurer
(Principal Accounting Officer)
Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Jeffrey A. Leddy, Chief Executive Officer and President of SkyTerra
Communications, Inc. (the "Company"), hereby certifies, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that, to my knowledge:
(1) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003, as filed with the Securities and Exchange
Commission on the date hereof (the "Report"), fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
By: /s/ JEFFREY A. LEDDY
---------------------------
Name: Jeffrey A. Leddy
Title: Chief Executive Officer and President
(Principal Executive Officer and
Principal Financial Officer)
Date: November 14, 2003
This certification accompanies the Report pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
A signed original of this written statement required by Section 906, or
other document authenticating, acknowledging, or otherwise adopting the
signature that appears in typed form within the electronic version of this
written statement required by Section 906, has been provided to the Company and
will be retained by the Company and furnished to the Securities and Exchange
Commission or its staff upon request.
Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Craig J. Kaufmann, Controller and Treasurer of SkyTerra Communications,
Inc. (the "Company"), hereby certifies, pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to my
knowledge:
(1) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2003, as filed with the Securities and Exchange
Commission on the date hereof (the "Report"), fully complies with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act
of 1934; and
(2) The information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations
of the Company.
By: /s/ CRAIG J. KAUFMANN
------------------------------
Name: Craig J. Kaufmann
Title: Controller and Treasurer
(Principal Accounting Officer)
Date: November 14, 2003
This certification accompanies the Report pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended.
A signed original of this written statement required by Section 906, or
other document authenticating, acknowledging, or otherwise adopting the
signature that appears in typed form within the electronic version of this
written statement required by Section 906, has been provided to the Company
and will be retained by the Company and furnished to the Securities and
Exchange Commission or its staff upon request.