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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 quarterly period ended June 30, 2003
Commission file number 000-28063
DELTATHREE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-4006766
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
75 BROAD STREET 10004
NEW YORK, NEW YORK (Zip code)
(Address of principal executive offices)
(212) 500-4850
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant 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 checkmark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act).
YES [ ] NO [X]
As of August 5, 2003, the registrant had 29,228,643 shares of Class A
Common Stock, par value $0.001 per share, outstanding.
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DELTATHREE, INC.
Table of Contents
PAGE
----
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements ................................................................ 1
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 6
Item 3. Quantitative and Qualitative Disclosures About Market Risk .......................... 10
Item 4. Controls and Procedures ............................................................. 11
PART II - OTHER INFORMATION
Item 1. Legal Proceedings ................................................................... 12
Item 2. Change in Securities and Use of Proceeds ............................................ 13
Item 4. Submission of Matters to a Vote of Security Holders ................................. 13
Item 5. Other Information ................................................................... 13
Item 6. Exhibits and Reports on Form 8-K .................................................... 14
Signatures ................................................................................... 15
Exhibit Index ................................................................................ 16
ii
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
DELTATHREE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
AS OF AS OF
JUNE 30, DECEMBER 31,
2003 2002
--------- ---------
(unaudited)
($ IN THOUSANDS)
ASSETS
CURRENT ASSETS:
Cash and cash equivalents ......................................... $ 3,972 $ 5,681
Short-term investments ............................................ 15,101 15,552
Accounts receivable, net .......................................... 290 652
Prepaid expenses and other current assets ......................... 448 760
--------- ---------
Total current assets ........................................... 19,811 22,645
--------- ---------
PROPERTY AND EQUIPMENT, NET ........................................ 6,508 9,452
--------- ---------
DEPOSITS ........................................................... 105 100
--------- ---------
Total assets .................................................. $ 26,424 $ 32,197
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable .................................................. $ 1,815 $ 2,306
Deferred revenues ................................................. 339 334
Other current liabilities ......................................... 1,949 2,330
--------- ---------
Total current liabilities ...................................... 4,103 4,970
--------- ---------
LONG-TERM LIABILITIES:
Severance pay obligations ......................................... 85 113
--------- ---------
Total liabilities .............................................. 4,188 5,083
--------- ---------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Class A common stock, - par value $0.001 .......................... 29 29
Class B common stock, - par value $0.001 .......................... -- --
Additional paid-in capital ........................................ 166,801 166,801
Accumulated deficit ............................................... (144,384) (139,506)
Treasury stock at cost: 257,600 shares of class A common stock as of
June 30, 2003 and December 31, 2002 .............................. (210) (210)
--------- ---------
Total stockholders' equity .................................... 22,236 27,114
--------- ---------
Total liabilities and stockholders' equity .................... $ 26,424 $ 32,197
========= =========
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.
1
DELTATHREE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
2003 2002 2003 2002
------------- ------------ ------------ ------------
(unaudited) (unaudited)
($ IN THOUSANDS, EXCEPT SHARE DATA)
Revenues .......................................... $ 2,985 $ 3,154 $ 5,957 $ 6,491
Costs and operating expenses:
Cost of revenues, net ........................... 1,955 2,179 3,817 4,736
Research and development expenses, net .......... 555 880 1,218 1,873
Selling and marketing expenses .................. 871 1,168 1,654 2,219
General and administrative expenses (exclusive of
non-cash compensation expense shown below) ... 478 511 1,139 1,120
Non-cash compensation expense ................... -- 108 -- 270
Depreciation and amortization ................... 1,527 1,643 3,131 3,278
------------ ------------ ------------ ------------
Total costs and operating expenses ........... 5,386 6,489 10,959 13,496
------------ ------------ ------------ ------------
Loss from operations .............................. (2,401) (3,335) (5,002) (7,005)
Interest income, net .............................. 42 52 146 181
------------ ------------ ------------ ------------
Loss before income taxes .......................... (2,359) (3,283) (4,856) (6,824)
Income taxes ...................................... 4 -- (22) (11)
------------ ------------ ------------ ------------
Net loss .......................................... $ (2,363) $ (3,283) $ (4,878) $ (6,835)
============ ============ ============ ============
Net loss per share - basic and diluted ............ $ (0.08) $ (0.11) $ (0.17) $ (0.24)
============ ============ ============ ============
Weighted average shares outstanding -
basic and diluted (number of shares) ........ 28,923,296 28,885,606 28,921,536 28,885,606
============ ============ ============ ============
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
2
DELTATHREE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED
JUNE 30,
2003 2002
------- -------
(unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss ........................................................ $(4,878) $(6,835)
Adjustments to reconcile net loss to net cash used in operating
activities
Depreciation and amortization ............................ 3,131 3,278
Amortization of deferred compensation .................... -- 270
Capital gain, net ........................................ (18) --
Increase (decrease) in liability for severance pay, net .. (28) (52)
Provision for losses on accounts receivable .............. 42 (2)
Changes in assets and liabilities:
Decrease (increase) in accounts receivable ............... 320 29
Increase (decrease) in other current assets .............. 312 462
Increase (decrease) in accounts payable .................. (491) (1,275)
Decrease in deferred revenues ............................ 5 23
Increase (decrease) in current liabilities ............... (381) (349)
------- --------
2,892 2,384
------- --------
Net cash used in operating activities ......................... (1,986) (4,451)
------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment ....................... (204) (238)
Proceeds from sale of property and equipment ............. 35 1
Decrease (increase) in deposits ......................... (5) 3
------- --------
Net cash used in investing activities ........................ (174) (234)
------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Decrease (increase) in short-term investments ............ 451 (1,368)
------- --------
Net cash provided by (used in) financing activities ........... 451 (1,368)
------- --------
Increase (decrease) in cash and cash equivalents ................ (1,261) (6,053)
Cash and cash equivalents at beginning of year .................. 5,681 (1,368)
------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR ........................ $ 4,420 $(1,368)
======= ========
SEE NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
3
DELTATHREE, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The unaudited condensed consolidated financial statements of deltathree,
Inc. and its subsidiaries (collectively, "the Company"), of which these notes
are a part, have been prepared in accordance with generally accepted accounting
principles for interim financial information and pursuant to the instructions of
Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all
of the information and footnotes required by generally accepted accounting
principles for annual financial statements. In the opinion of management of the
Company, all adjustments (consisting only of normal recurring accruals)
considered necessary for a fair presentation of the financial information have
been included. The results for the interim periods presented are not necessarily
indicative of the results that may be expected for any future period. The
condensed consolidated financial statements should be read in conjunction with
the consolidated financial statements and notes thereto included in the
Company's annual report on Form 10-K for the year ended December 31, 2002.
2. NET LOSS PER SHARE
The shares issuable upon the exercise of stock options and warrants are
excluded from the calculation of net loss per share, as their effect would be
antidilutive.
3. STOCK-BASED COMPENSATION
The Company accounts for employee stock-based compensation in accordance
with Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees" and in accordance with FASB Interpretation No. 44. Pursuant to these
accounting pronouncements, the Group records compensation for stock options
granted to employees over the vesting period of the options based on the
difference, if any, between the exercise price of the options and the market
price of the underlying shares at that date. Deferred compensation is amortized
to compensation expense over the vesting period of the options. See below a pro
forma disclosure required in accordance with SFAS No. 123, "Accounting for
Stock-Based Compensation", as amended by SFAS No. 148.
If the Company had elected to recognize compensation expense for the
issuance of options to employees of the Company based on the fair value method
of accounting prescribed by SFAS No. 123, net income (loss) and earnings (loss)
per share would have been reduced to the pro forma amounts as follows (in
thousands, except per share amounts):
4
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------------- -----------------
2003 2002 2003 2002
------- ------- ------- -------
NET INCOME (LOSS):
Reported net income (loss) ..................... $(2,363) $(3,283) $(4,878) $(6,835)
Add stock-based employee compensation expense,
included in reported net income, net of tax .. -- 108 -- 270
Deduct stock-based employee compensation expense
determined under fair value method, net of tax (198) (439) (404) (706)
------- ------- ------- -------
Pro forma net income (loss) .................... $(2,561) $(3,614) $(5,282) $(7,271)
======= ======= ======= =======
NET INCOME (LOSS) PER SHARE:
Basic and diluted, as reported ................. $ (0.08) $ (0.11) $ (0.17) $ (0.24)
Basic and diluted, pro forma ................... $ (0.09) $ (0.13) $ (0.18) $ (0.25)
For the purpose of presenting pro forma information required under SFAS
123, the fair value option grant has been estimated on the date of grant using
the Black Scholes option pricing model for grants made after the Company became
a public entity. The following assumptions were used for the six and three
months periods ended June 30, 2002: dividend yield of 0.00% for all periods;
risk free interest rate of 4.8% for all periods; an expected life of 3 years for
all periods; a volatility rate of 150% for the periods. During the six and three
months ended June 30, 2003 there were no new option grants.
5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis of our financial condition and
results of operations should be read in conjunction with the Management's
Discussion and Analysis of Financial Condition and Results of Operations and the
Consolidated Financial Statements and the Notes thereto included in our Annual
Report on Form 10-K for the year ended December 31, 2002. This quarterly report
on Form 10-Q contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. These forward-looking statements involve risks
and uncertainties and actual results could differ materially from those
discussed in the forward-looking statements. All forward-looking statements and
risk factors included in this document are made as of the date hereof, based on
information available to us as of the date thereof, and we assume no obligation
to update any forward-looking statement or risk factors.
SIX MONTHS ENDED JUNE 30, 2003 COMPARED TO SIX MONTHS ENDED JUNE 30, 2002
REVENUES
Revenues decreased approximately $0.5 million or 7.7% to approximately $6.0
million for the six months ended June 30, 2003 from approximately $6.5 million
for the six months ended June 30, 2002. Revenues from enhanced IP communications
services (including our Hosted Communications Solution) decreased by
approximately $0.2 million or 3.4% to approximately $5.6 million for the six
months ended June 30, 2003 from approximately $5.8 million for the six months
ended June 30, 2002, due to a greater number of PC-to-Phone and Phone-to-Phone
calls being placed by an increasing user base, offset by lower up-front
integration fees from fewer new Hosted Communications Solution partners.
Revenues from carrier transmission services, decreased by approximately
$0.2 million or 28.6% to approximately $0.5 million for the six months ended
June 30, 2003 from approximately $0.7 million for the six months ended June 30,
2002, due primarily to a slightly increased demand from a smaller customer base.
No customer accounted for greater than 10% of our revenues during these periods.
COSTS AND OPERATING EXPENSES
COST OF REVENUES. Cost of revenues decreased by approximately $0.9 million
or 19.1% to approximately $3.8 million for the six months ended June 30, 2003
from approximately $4.7 million for the six months ended June 30, 2002, due
primarily to a decrease in the amount of traffic being terminated.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
decreased by approximately $0.7 million or 36.8% to approximately $1.2 million
for the six months ended June 30, 2003 from approximately $1.9 million for the
six months ended June 30, 2002, due to lower personnel costs associated with the
development of new services and enhancements to our existing services.
SELLING AND MARKETING EXPENSES. Selling and marketing expenses decreased by
approximately $0.5 million or 22.7% to approximately $1.7 million for the six
months ended June 30, 2003 from approximately $2.2 million for the six months
ended June 30, 2002, due to a decrease in our branding and promotional
activities.
6
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
(exclusive of non-cash compensation expenses) was essentially unchanged at
approximately $1.1 million for the six months ended June 30, 2003 and the six
months ended June 30, 2002, primarily due to increased professional fees,
off-set by decreased personnel costs.
NON-CASH COMPENSATION EXPENSES. There were no non-cash compensation
expenses for the six months ended June 30, 2003 compared to approximately
$270,000 for the six months ended June 30, 2002, due to the completed
amortization of costs incurred during 1998 and 1999 related to the grants of
options and warrants below the then fair market value during those periods.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization of goodwill
decreased slightly by approximately $0.2 million or 6.1% to approximately $3.1
million for the six months ended June 30, 2003 from approximately $3.3 million
for the six months ended June 30, 2002.
LOSS FROM OPERATIONS
Loss from operations decreased by approximately $2.0 million or 28.6% to
approximately $5.0 million for the six months ended June 30, 2003 from
approximately $7.0 million for the six months ended June 30, 2002, due primarily
to the decrease in costs and operating expenses, including non-cash compensation
expenses and selling and marketing expenses. We expect to continue to incur
losses for the foreseeable future.
INTEREST INCOME, NET
Interest income, net decreased by approximately $35,000 or 19.3% to
approximately $146,000 for the six months ended June 30, 2003 from approximately
$181,000 for the six months ended June 30, 2002, due primarily to lower interest
rates earned on the reduced balance of the remaining proceeds from our initial
public offering.
INCOME TAXES, NET
We paid net income taxes of approximately $22,000 for the six months ended
June 30, 2003 compared to approximately $11,000 for the six months ended June
30, 2002.
NET LOSS
Net loss decreased by approximately $1.9 million or 27.9% to approximately
$4.9 million for the six months ended June 30, 2003 from approximately $6.8
million for the six months ended June 30, 2002 due to the foregoing factors.
THREE MONTHS ENDED JUNE 30, 2003 COMPARED TO THREE MONTHS ENDED JUNE 30, 2002
REVENUES
Revenues decreased approximately $0.2 million or 6.3% to approximately $3.0
million for the three months ended June 30, 2003 from approximately $3.2 million
for the three months ended June 30, 2002. Revenues from enhanced IP
communications services (including our Hosted Communications Solution)
7
decreased by approximately $0.2 million or 6.8% to approximately $2.7 million
for the three months ended June 30, 2003 from approximately $2.9 million for the
three months ended June 30, 2002, due to a greater number of PC-to-Phone and
Phone-to-Phone calls being placed by an increasing user base, offset by lower
up-front integration fees from fewer new Hosted Communications Solution
partners.
Revenues from carrier transmission services, decreased by approximately
$0.1 million or 33.3% to approximately $0.2 million for the three months ended
June 30, 2003 from approximately $0.3 million for the three months ended June
30, 2002, due primarily to a slightly increased demand from a smaller customer
base. No customer accounted for greater than 10% of our revenues during these
periods.
COSTS AND OPERATING EXPENSES
COST OF REVENUES. Cost of revenues decreased by approximately $0.2 million
or 9.1% to approximately $2.0 million for the three months ended June 30, 2003
from approximately $2.2 million for the three months ended June 30, 2002, due
primarily to a decrease in the amount of traffic being terminated.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses
decreased by approximately $0.3 million or 33.3% to approximately $0.6 million
for the three months ended June 30, 2003 from approximately $0.9 million for the
three months ended June 30, 2002, due to lower personnel costs associated with
the development of new services and enhancements to our existing services.
SELLING AND MARKETING EXPENSES. Selling and marketing expenses decreased by
approximately $0.3 million or 25.0% to approximately $0.9 million for the three
months ended June 30, 2003 from approximately $1.2 million for the three months
ended June 30, 2002, due to a decrease in our branding and promotional
activities.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
(exclusive of non-cash compensation expenses) was essentially unchanged at
approximately $0.5 million for the three months ended June 30, 2003 and the
three months ended June 30, 2002, primarily due to increased professional fees,
off-set by decreased personnel costs.
NON-CASH COMPENSATION EXPENSES. There were no non-cash compensation
expenses for the three months ended June 30, 2003 compared to approximately
$108,000 for the three months ended June 30, 2002, due to the completed
amortization of costs incurred during 1998 and 1999 related to the grants of
options and warrants below the then fair market value during those periods.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization of goodwill
decreased slightly by approximately $0.1 million or 6.3% to approximately $1.5
million for the three months ended June 30, 2003 from approximately $1.6 million
for the three months ended June 30, 2002.
LOSS FROM OPERATIONS
Loss from operations decreased by approximately $0.9 million or 27.3% to
approximately $2.4 million for the three months ended June 30, 2003 from
approximately $3.3 million for the three months ended June 30, 2002, due
primarily to the decrease in costs and operating expenses, including non-cash
compensation expenses and selling and marketing expenses. We expect to continue
to incur losses for the foreseeable future.
8
INTEREST INCOME, NET
Interest income, net decreased by approximately $10,000 or 29.2% to
approximately $42,000 for the three months ended June 30, 2003 from
approximately $52,000 for the three months ended June 30, 2002, due primarily to
lower interest rates earned on the reduced balance of the remaining proceeds
from our initial public offering.
INCOME TAXES, NET
We paid net income taxes of approximately $4,000 for the three months ended
June 30, 2003.
NET LOSS
Net loss decreased by approximately $0.9 million or 27.3% to approximately
$2.4 million for the three months ended June 30, 2003 from approximately $3.3
million for the three months ended June 30, 2002 due to the foregoing factors.
LIQUIDITY AND CAPITAL RESOURCES
Since our inception in March 1996, we have incurred significant operating
and net losses, due in large part to the start-up and development of our
operations. As of June 30, 2003, we had an accumulated deficit of approximately
$144 million. We anticipate that we will continue to incur operating and net
losses as we continue to implement our growth strategy.
As of June 30, 2003, we had cash and cash equivalents of approximately $4.0
million, marketable securities and other short-term investments of approximately
$15.1 million and working capital of approximately $15.7 million. We generated
negative cash flow from operating activities of approximately $2.0 million
during the six months ended June 30, 2003 compared with approximately $4.5
million during the six months ended June 30, 2002. Accounts receivable were
approximately $0.3 million and $0.7 million at June 30, 2003 and June 30, 2002,
respectively.
Our capital expenditures were essentially unchanged at approximately
$200,000 in the six months ended June 30, 2003 and the three months ended June
30, 2002 as we continued to improved our overall utilization of our existing
domestic and international network infrastructure.
Short-term, we obtain our funding from our utilization of the remaining
proceeds from our initial public offering offset by positive or negative cash
flow from our operations. These proceeds are maintained as cash, cash
equivalents, and short-term investments with an original maturity of twelve
months or less. Based on current trends in our operations, we believe that these
funds will be sufficient to meet our working capital requirements, including
operating losses, and capital expenditure requirements for at least the next
fiscal year, assuming that our business plan is implemented successfully, and
that:
o our recent revenue trends, which reflected an increase in our
higher-margin (primarily PC-to-Phone) products and services, continue
to increase;
o our expense trends remain at or near the rates of our second quarter
2003 rates, which were
9
significantly reduced during the past twelve months through reductions
in personnel, curtailment of discretionary expenditures, and reduced
network rent and termination rates from our carriers; and
o our net cash-burn rate, which was significantly reduced during the
past twelve months due to the foregoing factors to approximately $0.6
million in the second quarter of 2003, continues to improve throughout
the remainder of 2003 and beyond.
To the extent that these trends do not remain steady, or if in the
longer-term we are not able to successfully implement our business strategy, we
may be required to raise additional funds for our ongoing operations. Additional
financing may not be available when needed or, if available, such financing may
not be on terms favorable to us, especially in light of current economic
conditions and the unfavorable market for telecommunications companies in
particular. If additional funds are raised through the issuance of equity
securities, our existing stockholders may experience significant dilution. In
addition, we cannot assure you that any third party will be willing or able to
provide additional capital to us on favorable terms or at all.
FORWARD-LOOKING STATEMENTS
Certain matters discussed in this Report under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operation -
Liquidity and Capital Resources" contain certain forward-looking statements
which involve risks and uncertainties and depend upon certain assumptions, some
of which may be beyond our control, including, but not limited to, uncertainty
of financial estimates and projections, the competitive environment for Internet
telephony, our limited operating history, changes of rates of all related
telecommunications services, the level and rate of customer acceptance of new
products and services, legislation that may affect the Internet telephony
industry, rapid technological changes, as well as other risks referenced from
time to time in our filings with the Securities and Exchange Commission, and,
accordingly, there can be no assurance with regard to such statements. All
forward-looking statements and risk factors included in this document are made
as of the date hereof, based on information available to us as of the date
thereof, and we assume no obligation to update any forward-looking statement or
risk factors.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Securities and Exchange Commission's rule related to market risk
disclosure requires that we describe and quantify our potential losses from
market risk sensitive instruments attributable to reasonably possible market
changes. Market risk sensitive instruments include all financial or commodity
instruments and other financial instruments (such as investments and debt) that
are sensitive to future changes in interest rates, currency exchange rates,
commodity prices or other market factors. We believe that our exposure to market
risk is immaterial. We currently do not invest in, or otherwise hold, for
trading or other purposes, any financial instruments subject to market risk.
10
ITEM 4. CONTROLS AND PROCEDURES
(a) Evaluation of Disclosure Controls and Procedures.
Our principal executive officer and principal financial officer, after
evaluating the effectiveness of our disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)), as of the end of the
period covered by this Quarterly Report on Form 10-Q, have concluded that, based
on such evaluation, our disclosure controls and procedures were adequate and
effective to ensure that material information relating to us was made known to
them by others within deltathree, particularly during the period in which this
quarterly report on Form 10-Q was being prepared.
(b) Changes in Internal Controls.
There were no changes in our internal control over financial reporting,
identified in connection with the evaluation of such internal control that
occurred during our last fiscal quarter, that have materially affected, or are
reasonably likely to materially affect, our internal control over financial
reporting.
11
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On October 8, 1999, Aerotel, Ltd. and Aerotel U.S.A. commenced a suit
against us, RSL COM and an RSL COM subsidiary in the United States District
Court for the Southern District of New York. Aerotel alleges that we are
infringing on a patent issued to Aerotel in November 1987 by making, using,
selling and offering for sale prepaid telephone card products in the United
States. Aerotel seeks an injunction to stop us from using the technology covered
by this patent, monetary damages in an unspecified amount and reimbursement of
attorneys' fees. We have answered the complaint, the parties engaged in
pre-trial discovery, and the case remains at a preliminary stage. We believe
that we have meritorious defenses to the claims and we intend to defend the
lawsuit vigorously. However, the outcome of the litigation is inherently
unpredictable and an unfavorable result may have a material adverse effect on
our business, financial condition and results of operations. Regardless of the
ultimate outcome, the litigation could result in substantial expenses to us and
significant diversion of efforts by our managerial and other personnel. A
proposed settlement agreement between the plaintiffs and us has been mutually
agreed to and is in the process of being approved by the court.
We, as well as certain of our former officers and directors, have been
named as defendants in a number of purported securities class actions in Federal
District Court for the Southern District of New York, arising out of our initial
public offering in November 1999 (the "IPO"). Various underwriters of the IPO
also are named as defendants in the actions. The complaints allege, among other
things, that the registration statement and prospectus filed with the Securities
and Exchange Commission for purposes of the IPO were false and misleading
because they failed to disclose that the underwriters allegedly (i) solicited
and received commissions from certain investors in exchange for allocating to
them shares of our stock in connection with the IPO and (ii) entered into
agreements with their customers to allocate such stock to those customers in
exchange for the customers agreeing to purchase additional shares in the
aftermarket at predetermined prices. On August 8, 2001, the court ordered that
these actions, along with hundreds of IPO allocation cases against other
issuers, be transferred to Judge Scheindlin for coordinated pre-trial
proceedings. In July 2002, omnibus motions to dismiss the complaints based on
common legal issues were filed on behalf of all issuers and underwriters. On
February 19, 2003, the Court issued an opinion granting in part and denying in
part those motions to dismiss. The complaint against the Company was not
dismissed as a matter of law. These cases remain at a preliminary stage and no
discovery proceedings have taken place. We believe that the claims asserted
against us in these cases are without merit and intend to defend ourselves
vigorously against them. A proposed settlement agreement between the plaintiffs
and issuer defendants is in the process of being negotiated and approved.
On February 12, 2003 we announced that four lawsuits had been filed against
us, our officers and directors, and our majority stockholder, Atarey Hasharon
Chevra Lepituach Vehashkaot Benadlan (1991) Ltd. ("Atarey"), in connection with
our formation of the special committee to evaluate the proposal by Atarey to
purchase all of our outstanding shares of common stock not held by Atarey and
its affiliates. On February 6, 2003, we issued a press release in connection
with the proposed transaction. The lawsuits purport to be class actions on
behalf of our public stockholders. The plaintiffs in these actions have asserted
a variety of claims, including allegations that Atarey's proposed tender offer
price for our publicly held shares is unfair and grossly inadequate; and that
our officers and directors have breached their fiduciary duties to the public
stockholders. Each of the lawsuits were filed in the Delaware Court of Chancery
in and for New Castle County. We did not
12
believe that these lawsuits stated valid claims against us or any of our
officers or directors. On July 24, 2003, the plaintiffs filed a Notice of
Dismissal with the Delaware Court of Chancery to dismiss the actions without
prejudice. Such Notice of Dismissal was approved by the court on August 1, 2003
and the actions have been dismissed without prejudice.
We are not a party to any other material litigation and are not aware of
any other pending or threatened litigation that could have a material adverse
effect on us or our business taken as a whole.
ITEM 2. CHANGE IN SECURITIES AND USE OF PROCEEDS
On November 22, 1999, we offered 6,000,000 shares of our class A common
stock in an initial public offering. These shares were registered with the
Securities and Exchange Commission on a registration statement on Form S-1 (file
no. 333-86503), which became effective on November 22, 1999. We received net
proceeds of approximately $96,255,000 from the sale of 6,900,000 shares at the
initial public offering price of $15.00 per share after deducting underwriting
commissions and discounts and expenses of approximately $6,300,000. The managing
underwriters for our initial public offering were Lehman Brothers Inc., Merrill
Lynch & Co., U.S. Bancorp Piper Jaffray, Lazard Freres & Co. LLC and Fidelity
Capital Markets.
As of June 30, 2003, we had used approximately $33 million of the net
proceeds for sales, marketing and promotional activities, $20 million for
capital expenditures and $15 million for general corporate purposes. Pending use
of the remaining net proceeds, we have invested the remaining net proceeds in
interest-bearing, investment-grade instruments, certificates of deposit, or
direct or guaranteed obligations of the United States.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of the Company's security holders during
the second quarter of 2003.
ITEM 5. OTHER INFORMATION
In June 2003 we received a letter from Nasdaq indicating that our then
existing grace period for compliance with the Nasdaq SmallCap Market's $1.00
minimum bid price requirement was extended 90 days by Nasdaq Listing
Qualifications until September 1, 2003. On August 5, 2003 we received a letter
from Nasdaq notifying us that since the closing bid price of our common stock
has been at $1.00 per share or greater for at least 10 consecutive trading days,
we have regained compliance with the rule and this matter is now closed.
On February 6, 2003, we announced that we had received a letter from D3
Acquisition, Inc. relating to a proposal to purchase all of our outstanding
shares not held by Atarey Hasharon Chevra Lepituach Vehashkaot Benadlan (1991)
Ltd. ("Atarey") and its affiliates for a price of $0.70 per share in cash by
means of a cash tender offer. The proposal contemplated that upon successful
completion of the tender offer, D3 Acquisition would merge into us and we would
survive and continue as a wholly owned private subsidiary of Atarey. D3
Acquisition is a wholly owned special purpose acquisition corporation formed by
Atarey. Together, Atarey and its affiliates currently own approximately 71%
(20,655,402 shares) of our outstanding common stock. Our board of directors
formed a special committee comprised of independent directors to evaluate the
proposal and negotiate its terms. The special committee of our board of
directors retained Kaufman Bros., L.P. as its financial advisor to assist the
special committee in evaluating strategic alternatives, including a possible
sale of the company. Among other things, Kaufman Bros. is assisting the special
committee in its continuing
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assessment of the D3 Acquisition proposal. On July 17, 2003, we announced that
we had mutually concluded with Atarey that the proposed tender offer was
inadequate, and at this time, D3 Acquisition has indicated they do not intend to
propose any subsequent offer for the shares of deltathree not held by Atarey and
its affiliates. Upon our announcement that we were evaluating the D3 Acquisition
offer, litigation was commenced against our Board members and us with respect to
the transaction contemplated by the proposal. Please see Item 1, "Legal
Proceedings" for a description of such litigation.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
The following exhibits are filed herewith:
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
31.1 Certification of CEO Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
31.2 Certification of CFO Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
32 Certifications of CEO and CFO Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
(b) Reports on Form 8-K.The following report was filed on Form 8-K during
the quarter ended June 30, 2003:
On May 13, 2003, we filed a Form 8-K under Item 9 regarding a press release
announcing our financial results and other data for the quarter ended March 31,
2003, as well as financial guidance for the quarter ending June 30, 2003.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Quarterly Report on Form 10-Q to be signed on
its behalf by the undersigned thereunto duly authorized.
DELTATHREE, INC.
Date: August 7, 2003 By: /S/ PAUL C. WHITE
--------------------------------
Name: Paul C. White
Title: Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
31.1 Certification of CEO Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
31.2 Certification of CFO Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.
32 Certifications of CEO and CFO Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
16