SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549FORMForm 20-F
(Mark One) [ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) or (g) OF THE SECURITIES EXCHANGE ACT OF 1934 OR [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001. OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from _______________ to _______________ Commission file number 000-29736 MARNETICS BROADBAND TECHNOLOGIES LTD. ------------------------------------------------------ (Exact Name of Registrant as specified in its charter) Not applicable ---------------------------------------------- (Translation of Registrant's name into English ISRAEL ----------------------------------------------- (Jurisdiction of incorporation or organization) 10 HAYEZIRA STREET RA'ANANA 43000 ISRAEL ---------------------------------------- (Address of principal executive offices) Securities registered or to be registered pursuant to Section 12(b) of the Act: Title of each Name of each exchange Class on which registered ------------- --------------------- None
(Mark One)
o
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) or (g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2003.
OR
o
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission file number 000-29736
Marnetics Broadband Technologies Ltd.
(Exact Name of Registrant as specified in its charter)
Not applicable
(Translation of Registrant’s name into English
Israel
(Jurisdiction of incorporation or organization)
10 Hayezira Street
Ra’anana 43000 Israel(Address of principal executive offices)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each
ClassName of each exchange
on which registeredNone
Securities registered to or to be registered pursuant to Section 12(g) of the Act.
ORDINARY SHARES, NOMINAL VALUEOrdinary Shares, nominal value NIS 0.08
PER SHARE ------------------------------------------------- (Titleper share
(Title of Class)Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
NONE ---------------- (TitleNone
(Title of Class)Indicate the number of outstanding shares of each of the
issuer'sissuer’s classes of capital or common stock as of the close of the period covered by the annual report.AS OF DECEMBERAs of December 31,
2001,2003, 7,362,390OF THE REGISTRANT'S ORDINARY SHARES, PAR VALUEof the Registrant’s Ordinary Shares, par value NIS 0.08PER SHARE, WERE ISSUED AND OUTSTANDING.per share, were issued and outstanding.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
Xx No--------- ---------oIndicate by check mark which financial statement item the registrant has elected to follow
Item 17o Item 18
X --- ---xTABLE OF CONTENTS
PART I PAGE Item 1: Identity of Directors, Senior Management and Advisers.. Not Applicable Item 2: Offer Statistics and Expected Timetable................ Not Applicable Item 3: Key Information........................................ 3 Item 4: Information on the Company............................. 11 Item 5: Operating and Financial Review and Prospects........... 19 Item 6: Directors, Senior Management and Employees............. 25 Item 7: Major Shareholders and Related Party Transactions...... 33 Item 8: Financial Information.................................. 37 Item 9: The Offer and Listing.................................. 38 Item 10: Additional Information................................. 39 Item 11: Quantitative and Qualitative Disclosures about Market Risk................................... 44 Item 12: Description of Securities Other than Equity Securities. Not Applicable PART II Item 13: Defaults, Dividend Arrearages and Delinquencies........ Not Applicable Item 14: Material Modifications to the Rights of Security Holders and Use of Proceeds................... Not Applicable Item 15: [Reserved]............................................. 45 Item 16: [Reserved]............................................. 45 PART III Item 17: Financial Statements.................................. Not Applicable Item 18: Financial Statements.................................. 45 Item 19: Exhibits.............................................. 45
PAGE
Item 1:
4
Item 2:
4
Item 3:
4
Item 4:
11
Item 5:
22
Item 6:
32
Item 7:
40
Item 8:
47
Item 9:
54
Item 10:
56
Item 11:
66
Item 12:
66
Item 13:
66
Item 14:
Material Modifications to the Rights of Security Holders and Use of Proceeds
66
Item 15:
66
Item 16A:
67
Item 16B:
67
Item 16C.
67
Item 16D.
68
Item 16E.
Purchase of Equity Securities by Issuer and Affiliated Purchasers
68
Item 17:
68
Item 18:
68
Item 19:
68
70
Reference herein to the (1)
"COMPANY"“Company”, is to Marnetics Broadband Technologies Ltd., which may be referred to as"WE," "US" OR "OUR"“we,” “us” or “our”and unless context indicates otherwise, includes its wholly-owned subsidiary, Marnetics, Ltd. and Marnetics Ltd.'s’s wholly-owned subsidiary Marnetics, Inc., and (2) referenced herein to"MARNETICS"“Marnetics” unless context indicates otherwise, refers to Marnetics Ltd. and Marnetics Ltd.'s’s wholly- owned subsidiary Marnetics, Inc..BITmax(TM), Prospera(TM), Prospera Megalink(TM),BITmax™ and
Prospera Expert(TM),Prospera™ are trademarks of the Company. This annual report also contains trademarks of other companies.NOTE REGARDING FORWARD-LOOKING STATEMENTSNote Regarding Forward-Looking Statements
Our disclosure and analysis in this report contains statements relating to results including certain projections and business trends that are considered
"forward-looking statements"“forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995. Without limiting the foregoing, the words"believes," "anticipates," "plans," "intends," "expects"“believes,” “anticipates,” “plans,” “intends,” “expects” and similar expressions are intended to identify forward-looking statements. Such risks and uncertainties include, but are not limited to the risks detailed under"Item“Item 3: Key Information-Risk Factors"–Risk Factors”. Actual results may differ materially from those projected as a result of certain risks and uncertainties, including but not limited to, changes in economic conditions and competitive pressures within theCompany'sCompany’s markets, as well as other risks and uncertainties detailed from time to time in the filings of the Company with the Securities and Exchange Commission. In addition, any forward-looking statements represent estimates only as of the date this annual report was first filed with the Securities Exchange Commission and should not be relied upon as representing theCompany'sCompany’s estimates as of any subsequent date. While the Company may elect to update forward-looking statements at some point in the future, the Company specifically disclaims any obligations to do so, even if its estimates change.23
Item 1.
IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERSIdentity of Directors, Senior Management and AdvisersNot Applicable.
ITEMItem 2.
OFFER STATISTICS AND EXPECTED TIMETABLEOffer Statistics and Expected TimetableNot Applicable.
ITEMItem 3.
KEY INFORMATION.Key Information.A.
SELECTED FINANCIAL DATASelected Financial DataThe following selected summary of financial information was derived from our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. Effective December 31, 2000, Marnetics Ltd. was acquired by the Company (formerly named Stav Electrical Systems (1994) Ltd.) in exchange for which the Company issued to the shareholders and option holders of Marnetics Ltd. shares and options in the Company representing approximately 75% of its outstanding shares, on a fully diluted basis. The acquisition of Marnetics Ltd. by the Company was accounted for as a reverse acquisition. Marnetics Ltd. was determined to be the
"accounting acquirer"“accounting acquirer” in the transaction since the former shareholders and option holders of Marnetics Ltd., as a group, received the largest ownership interest in the Company. As a result, the historical financial statements of the Company prior to December 31, 2000 were replaced with the historical financial statements of Marnetics. The statement of operations for 2003, 2002 and 2001 includes the operations of the Company and of Marnetics. Thestatements of operations for 2000,December 31, 2003, December 31, 2002 and1999 include only the results of operations of Marnetics. TheDecember 31, 2001and December 31, 2000balance sheet includes the consolidated accounts of the Company and Marnetics.At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company. (See“Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company has been in on-going serious discussions throughout the second quarter of year 2004 with a with a third party acquirer interested in purchasing a controlling share in the Company.(See “Item 8B – Significant Changes.”) There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.
The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would no longer be available nor would it continue to be in its current form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving on its Board and Audit Committee, and all other requirements as detailed under the Company’s Law regarding public companies.
4
The selected summary data should be read in conjunction with
ITEMItem 5:"OPERATING AND FINANCIAL REVIEW AND PROSPECTS"“Operating and Financial Review and Prospects”, and as qualified in their entirety by our Consolidated Financial Statements and Related Notes, andITEMItem 18 -FINANCIAL STATEMENTS,Financial Statements, including General - Note 1b, presented in United States dollars in accordance with generally accepted accounting principles in the United States("(“U.S.GAAP"GAAP”), and audited and prepared by Brightman Almagor & Co., Certified Public Accountants (Israel), a member of Deloitte Touche Tohmatsu, independent public accountants in Israel, 1 Azrieli Center, Tel Aviv 67201, Israel.3MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
(U.S.$ in thousands, except share and per share data)
CONSOLIDATED STATEMENTS OF OPERATIONS
Year ended December 31,
Cumulative
from June 1, 1998
date of
(commencement
of operations)
to December 31,(1)
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Revenue
$
4
$
19
$
-
$
23
Research and development
210
486
812
1,924
Sales and marketing expenses
174
464
310
1,090
General and administrative expenses
434
784
1,128
3,293
Provision for legal claim
-
(500
)
750
250
Impairment of goodwill
-
-
9,309
9,309
Loss allowance on loan to related party
-
-
1,228
1,228
Collection of loan from related party
-
(266
)
-
(266
)
Write-down of investment in affiliate
60
522
-
582
Provision for a bank guarantee
-
716
-
716
Non-cash compensation expenses
792
792
805
4,797
Total costs and expenses
1,670
2,998
14,342
22,923
Operating loss
(1,666
)
(2,979
)
(14,342
)
(22,900
)
Financial income (loss), net
(101
)
32
175
290
Loss on sale of fixed assets
-
-
-
(28
)
Taxes on income
-
(74
)
-
(74
)
Share in losses of affiliate
-
-
-
(660
)
Loss for the period
$
(1,767
)
$
(3,021
)
$
(14,167
)
$
(23,372
)
Discontinued operations
Loss from operations of electrical division
-
-
(450
)
(450
)
Loss on sale of electrical division
-
-
(2,278
)
(2,278
)
Loss for the period
$
(1,767
)
$
(3,021
)
$
(16,895
)
$
(26,100
)
Per share data (basic and diluted)
Loss from continuing operations
$
(0.24
)
$
(0.41
)
$
(2.11
)
Loss from discontinued operations
$
-
$
-
$
(0.40
)
Loss for the period
$
(0.24
)
$
(0.41
)
$
(2.51
)
Number of Shares used in computing loss per share
(basic and diluted)
7,362,390
7,362,390
6,725,685
Balance Sheet Data at December 31,
US $ in thousands
2003
2002
2001
2000
Working capital
(859
)
3
1,652
*
4,925
Total assets
398
1,485
3,451
*
25,376
Short term credits and
current maturities of long-
term debt
--
--
50
3,337
Long-term debt
--
--
--
213
Shareholders’ equity
(767
)
208
2,437
18,527
CUMULATIVE FROM JUNE 1, 1998 YEAR ENDED YEAR ENDED TO DECEMBER 31, DECEMBER 31, DECEMBER 31,(1)
----------------------------- ------------ ---------------- 2001 2000 1999 2001 ---------- ---------- ------------ ---------------- US$ IN THOUSANDSMarnetics Ltd. was established andResearchdevelopment costs 812 252 33 1,228 Sales and marketing expenses, net 310 142 -- 452 General and administrative expenses 1,128 722 44 2,075 Provision of legal claims 750 -- -- 750 Impairment of goodwill 9,309 -- -- 9,309 Loss allowance on loan to related party 1,228 -- -- 1,228 Non-cash compensation expenses 805 2,408 -- 3,213 ---------- ---------- ---------- ---------- OPERATING LOSS (14,342) (3,524) (77) (18,255) Financial income, net 175 167 9 359 Loss on sale of property and equipment -- -- (28) (28) Sharecommenced its operations inlosses of affiliate -- (639) (21) (660) ---------- ---------- ---------- ---------- LOSS FROM CONTINUING OPERATIONS (14,167) (3,996) (117) (18,584) DISCONTINUED OPERATIONS: Loss from operations of electrical division (450) -- -- (450) Loss on sale of electrical division (2,278) -- -- (2,278) ---------- ---------- ---------- ---------- LOSS FOR THE PERIOD (16,895) (3,996) (117) (21,312) ========== ========== ========== ========== PER SHARE DATA Basic and diluted: LOSS PER SHARE FROM CONTINUING OPERATIONS $ (2.11) $ (4.15) $ (0.20) ---------- ---------- ---------- LOSS FROM DISCONTINUED OPERATIONS $ (0.40) $ -- $ -- ---------- ---------- ---------- NET LOSS $ (2.51) $ (4.15) $ (0.20) ========== ========== ========== SHARES USED IN COMPUTING LOSS PER ORDINARY SHARE Basic and diluted 6,725,685 962,553 575,234 ========== ========== ==========June 1998.
* Reclassified.
AT DECEMBER 31, ------------------------------------------------ BALANCE SHEET DATA 2001 2000 1999 ---------- ---------- ----------Working capital ...................... 1,596 4,925 282 Total assets ......................... 3,507 25,376 418 Short term credits and current maturities of long-term debt ......... 50 3,337 -- Long-term debt ....................... -- 213 -- Shareholders' equity ................. 2,437 18,527 408- ------------------- (1)5
B. CAPITALIZATION AND INDEBTEDNESS
Not Applicable.
C. REASONS FOR THE OFFER AND USE OF PROCEEDS
Not applicable.
D. Risk Factors
Sale of the Company; Sale of Marnetics Ltd.; Sale of Marnetics Ltd.’s Intellectual Property
At the annual general meeting of shareholders held on March 12, 2004, the shareholders of the Company approved the Company’s Operational Plan for the year 2004. If a purchaser for the Company is not found prior to March 31, 2004, then management is to begin step towards liquidation of the Company. (See“Item 8B – Significant Changes”).
The resulting lack of sales, the inability of the Company to collect outstanding debts from a major shareholder and also from the purchaser of the net assets of the electrical operations business, and lack of funding and investment in the Company during year 2003 and first half of year 2004 has caused a material adverse effect on the financial condition of the Company and forced the Company to prepare the steps necessary to initiate liquidation procedures.
As of April 26, 2003, the Company decided to lay off the majority of its employees of the Company and those of its wholly-owned subsidiary, Marnetics Ltd.
was establishedin the areas of marketing, sales andcommencedresearch and development. The remaining employees in the area of administration have remained with the Company to implement itsoperations in June 1998 B. Not Applicable C. Not Applicable D. RISK FACTORS The Company's operations during 2001 consistedoperational plan that reflected the reduction oftwo lines of business: (1) core business of developingthe research andmarketing broadband Internet fortification solutions which shifted to thedevelopment, and marketing and sales, and focused on efforts to sell a controlling share in the Company, the sale ofnetwork capacity enhancement and network information analysis solutions for IP networks (the "NETWORK BUSINESS"), which is handled through our wholly-ownedits subsidiary Marnetics Ltd.,and/or of Marnetic’s intellectual property, as well as continuing the legal proceedings initiated by the Company, its defense in proceedings initiated against it and(2) historical businessother administrative activities essential to the Company’s operations.During year 2003 and to date the Company continued operations for the main purpose of
electrical and lighting contracting and engineering business (the "ELECTRICAL BUSINESS"),collecting outstanding debts owed to the Company relating to the Electrical Business, which was sold during 2001.See "ITEM(See “Item 8B- SIGNIFICANT CHANGES." 4.”) RISKS RELATING TO NETWORK BUSINESS TECHNOLOGICAL FACTORS; UNCERTAINTY OF PRODUCT DEVELOPMENT Despite– Significant ChangesBy letter dated November 15, 2002, the
factCompany was advised that its status was not in compliance with certain of the standards of the American Stock Exchange (the “Exchange”), namely 1) the aggregate market value of the shares publicly held was less than $1 million for more than 90 consecutive days and, 2) the common stock had been selling for a substantial period of time at a low price per share. As a consequence, the Exchange considered suspending dealing in, or removing the common shares from the list. The Company was offered an opportunity to submit a plan which would demonstrate an ability to regain compliance with the continued listing standards. Such a plan was submitted on December 23, 2002 and revised on January 13, 2003.On January 31, 2003, the Exchange communicated to the Company that it had completed its review and determined to initiate de-listing proceedings. By correspondence dated February 6, 2003, the Company appealed the Exchange’s determination and, in written submission dated March 9, 2003, the Company provided information in support of its request for review. On March 25, 2003, a hearing was held before an Exchange Listing Qualifications Panel. By letter dated March 26, 2003, the Exchange notified the Company of the Panel’s determination that the Company’s common stock should be de-listed by the Exchange. The AMEX suspended trading in the Company’s common stock effective April 1, 2003 and the Company did not appeal the Panel’s decision. As from April 1, 2003 the Company’s shares began to be quoted on the Pink Sheets. (See “Item 9B – Listing – Markets.”)
6
In order to determine the value of Marnetics Ltd. and/or value of the assets of the Company including the intellectual property, the Company invited a valuation from a well known consulting firm during year 2003. The Company is continually seeking a potential investor or purchaser in selected and, if possible, synergetic markets and throughout the
initial stepsyear 2003 and the first half ofcommercializing itsyear 2004 has engaged in exploratory discussions with potential purchaser and/or merger candidates. Beginning in June 2003 the Company entered into negotiations with a past distributor of Marnetics productsno assurances can be given that our investmentinresearchIsrael, regarding a merger of the two companies and/or possible sale of the intellectual property assets of the Marnetics but to date such negotiations have not materialized.During the first half of year 2004 and
development will be translatedprior to March 31, 2004, the Company has entered intomarketable products.serious negotiations with a third party acquirer interested in purchasing a controlling share of the Company. There can be no assurance thatanythe potential investor will agree to purchase a controlling share in the Company or that the conditions to closing ofour products in developmentsuch transaction (which willsatisfactorily perform allrequire shareholder approval) will be obtained. Failure to consummate negotiations for the purchase of thefunctions for which they have been designed or that they will be reliable or durablecontrolling shares would result inextensive applications. Such efforts remain subjectthe Company initiating steps toallbegin liquidation and the termination of therisks inherentregistration of its ordinary shares under the Securities Exchange Act of 1934.Intellectual Property Rights
As part of the steps towards liquidation of the Company for the year 2004, the Company is seeking to sell its intellectual property. Negotiations for its sale were held with a distributor of the Company, but to date such negotiations have not yielded results. If the Company fails to obtain an investor in the Company or sell the subsidiary, Marnetics Ltd., the Company will continue its attempts to sell the intellectual property.
The Company received funding under Government of Israel programs for research and development
of new products, including unanticipated delays, expenses and technical problems or difficulties, as well as the possible insufficiency of funds to implement efforts,programs whichcould result in abandonment or substantial change in product development. Our success will depend upon our products meeting targeted cost and performance objectives and the timely introduction of products into the marketplace.have now been halted. In order toobtain a strong market position, wemaintain eligibility for these programs, the Company must continue toallocate substantial resourcesmeet specified conditions and pay royalties with respect toresearchgrants received. In addition, some of the Office of the Chief Scientist’s programs under which we were funded restricts our ability to manufacture particular products or transfer particular technology outside of Israel. If the Company’s fails to comply with these conditions in the future, the benefits received could be canceled anddevelopmentthe Company could be required to pay back the grants with penalties. In addition, in accordance with applicable law andtherethe Company’s obligations towards the Office of the Chief Scientist, the Company isno guarantee that we will have the necessary fundslimited in selling certain of its intellectual property tobe able to keep pace with the rate of technological change. INTELLECTUAL PROPERTY RIGHTS Our success is substantially dependent upon our proprietary software technology. We doa non-Israeli entity.The Company does not
yethold any patents related toourits software technology and currentlyrely or, in the future, expect to relyrelies on a combination of contractual rights, copyrights, trademarks, and non-disclosure agreements with our employees and former employees, suppliers, distributors and customers. Marnetics submitted patent applications on December 13, 2000 (US Patent Application No. 09/734,921), for a method of data transfer acceleration in a TCP network environment, which is the core engine inBITmax(TM)BITmax™, and on December 20, 2001 (US Patent Application No. 10/022,912), for a method for enhancing physical bandwidth capacity in packet-switched network (Discrete State Driven Queuing("DSDQ"(“DSDQ”) technology), which is the core technology to theProspera(TM)Prospera™ family of products. The patent applications are still pending.We intend to file additional patent applications in Israel and the United States for new technologies currently under development.The methods usedand proposedfor the protection of our intellectual property rights, however, may not afford complete protection and there can be no assurance that third parties will not independently develop such know-how or obtain access to our know-how, ideas, concepts and documentation. Although we believe that our products have been developed independently and do not infringe on the proprietary rights of others, there can be no assurances that the technology does not and will not so infringe or that third parties will not assert infringement claims againstusit in the future.In the case of infringement, we could, under certain circumstances, be required to modify our products or obtain a license.There can be no assurance that we would be able to
do either in a timely manner, upon acceptable terms and conditions,orat all, or that wewill have the financial or other resources necessary to defendsuccessfully a patentinfringementor other proprietary rights infringement action.actions. Failure to do any of the foregoing could have a material adverse effect on us.Furthermore,Further more, if our products or technologies are deemed to infringe upon the rights of others, we could become liable for damages, which would have a material adverse effect on us.RISKS ASSOCIATED WITH MERGER AND ACQUISITION STRATEGY General. As partLimited Relevant Operating History of
its operating history and growth merger and acquisition strategy, the Company seeks to merge with or acquire other businesses. The Company continually seeks merger and acquisition candidates in selected and, if possible, synergetic markets and from time to time engages in exploratory discussions with potential merger and acquisition candidates. There can be no assurance, however, that the Company will be able to identify and merge with or acquire targeted businesses or obtain financing for such mergers or acquisitions on satisfactory terms. Furthermore, there can be no assurance that competition for merger and acquisition candidates will not escalate, thereby increasing the costs of making mergers and acquisitions or making suitable mergers and acquisitions unattainable. Limited Knowledge and Operating History. Notwithstanding its own due diligence investigation, management may have limited knowledge about the specific operating history, trends and customers of businesses merged with or acquired in future acquisitions. Consequently, no assurance can be given that the Company will be able to make future mergers and acquisitions at favorable prices, that 5merged with or acquired lines of business will perform as well as they had performed historically or that the Company will have sufficient information to analyze accurately the markets in which it elects to merge with or make acquisitions. Furthermore, additions by the Company of new products present certain risks and uncertainties resulting from the Company's relative unfamiliarity with these new products, the market for such new products, and the financial and operating controls required to manage such new product offerings. There can be no assurance that the Company will be successful in marketing these or other additions to its product offering or that its existing customers will accept such additions to the products currently purchased from the Company. Integration. The process of integrating future merged with or acquired businesses into the Company's operations may result in unforeseen difficulties and may require a disproportionate amount of resources and management attention. Although the Company will endeavor to integrate and assimilate the operations of merged or acquired lines of business in an effective and timely manner, no assurance can be given that the Company will be successful in such integration attempts or that the Company will be able to hire, train, retain and assimilate individuals employed at the merged or acquired businesses. Further, no assurance can be given that the Company will successfully integrate its recent acquisitions or any other future merged or acquired businesses into the Company's purchasing, marketing and management information systems, or that the Company's management and financial controls, personnel, computer systems and other corporate support systems will be adequate to manage the increase in the size and scope of the Company's operations and merger and acquisition activity. Integration of mergers or acquisitions is often a complex process which may entail material, non-recurring expenditures, including facility closing costs, warehouse assimilation expenses, asset write- downs and severance payments. Significant Future Charges to Earnings. Future merger and acquisitions may involve the recording of a significant amount of intangible assets, particularly goodwill, on the Company's balance sheet, which will be amortized over varying periods of time. LIMITED RELEVANT OPERATING HISTORY OF MARNETICSMarneticsMarnetics, which is the operating entity for the Network Business, has been in operation since June 1998. Accordingly, the Marnetics Subsidiary has a limited relevant operating history upon which an evaluation of the Marnetics
Subsidiary'sSubsidiary’s performance and prospects can be made. The Marnetics Subsidiaryishas been subject to all of the risks, needed financing, expenses, delays, problems, and difficulties typically encountered in the establishment of a new business, especially a development stagecompany Marnetics is in the initial commercialization stage.company.7
In early 2001, the global telecommunications markets experienced a major decline. As a result of the downturn, the deployment of broadband Internet access slowed dramatically, putting in jeopardy Marnetics Ltd.
's’s business plan, which primarily targeted the broadband market. As a result thereof, Marnetics Ltd. shifted its technological focus and is developing products, theProspera(TM)Prospera™ family of products, that intend to provide network capacity enhancement solutions for a bottleneck that may occur when Local Area Network("LAN"(“LAN”) access meets the congested Wide Area Network("WAN"(“WAN”) (the WAN Access Link) as well as network traffic analysis and capacity planning.MARKET FOR THE TECHNOLOGY The market for network capacity enhancement solutions is in an early stageAt the end ofdevelopment and its success is not guaranteed. Therefore, we cannot accurately assessyear 2002 Marnetics completed thesizefinal development of themarket,second version family of products and began sales.Limited Marketing Capabilities; Dependence on Third Party Marketing Arrangements
Given the
products needed to addressreduction in employees and limited budgeted funding during year 2003, themarket, the optimal distribution strategy, or the competitive environment that will develop. In order for us to be successful, our potential customers must recognize the valueCompany ceased marketing activities and commercialization of any of ournew approach to network management solutions, and decide to invest inproducts.In the
management of their networks andpast, theperformance of mission critical applications. The growth of the network management solutions market also depends upon a number of factors, including the availability of inexpensive bandwidth, especially international links, and the growth in complexity of WAN, and the CapEx budgets of enterprises. 6COMPETITION; PRICING; TECHNOLOGICAL OBSOLESCENCE Our products may compete directly with, or be rendered obsolete, by products developed and marketed by numerous well-established companies in the communications and networks industries, including traffic management developers, network optimization solution developers and system integrators. Many of these competitors have substantially greater financial, technical, personnel and other resources than the Company and have established reputations for success in the development, licensing, and sale of their products and technology. Certain of these competitors are industry leaders with the financial resources necessary to enable them to withstand substantial price competition or downturns in the market. Thus, our products may come under competitive pressure in terms of feasibility and price with a negative impact on future performance. The Company forecasts that the prices of bandwidth will not go down lower substantially, but if the prices were in actuality to go lower substantially, this would have a negative impact upon the products of Marnetics Ltd. There are also numerous other companies that have developed or may be expected to develop technologies or products that may be functionally similar to some or all of those being developed by us. There can be no assurance that other companies with greater financial resources and expertise do not have or are not currently developing functionally equivalent or superior products, or that functionally equivalent or superior products will not become available in the near future. In addition, the markets for our technology, products and proposed products are characterized by rapid changes and evolving industry standards, often resulting in product obsolescence or shortened product life span. Accordingly, our ability to compete will be dependent upon our ability continually to enhance and improve our future products and technologies, and to complete development of new products. There can be no assurance that we will be able to compete successfully, that our competitors or future competitors will not develop technologies or products that will render our products and technology obsolete or less marketable, or that the Company will be able to successfully enhance or satisfactorily adapt our existing technology or develop new products. PROPOSED EXPANSION The Company intends to pursue a strategy of growth. We have, however, limited experience in effectuating rapid expansion or in managing operations that are geographically dispersed. We intend to pursue our growth strategy by entering into strategic alliances for the marketing of our products or technology (OEM agreements), hiring and retaining skilled management, as well as financial, marketing, technical, and other personnel and successfully managing growth (including monitoring operations and controlling costs and maintaining effective quality controls). Our prospects could be adversely affected by unfavorable general economic conditions, including any downturns in the Israeli or international economies, or a decline in the economic prospects of particular governmental or commercial customers or segments or targeted markets, which could result in reduction or deferral of expenditures by prospective customers. There can be no assurance that we will be able to achieve significant market acceptance of future products, successfully introduce new products, or achieve significant penetration in new geographic markets. Our products may require a sophisticated marketing and sales effort targeted at several levels within a prospective customer's organization. We have recently expanded our marketing and sales staff and plan to further increase our staff, including sales, technical and customer support personnel. Competition for qualified sales personnel is intense and we may not be able to hire sufficient and skilled sales personnel to support our sales and marketing efforts. As the Company grows, we will need to increase our staff to support new customers, as well as our continued research and development operations. The installation of network traffic management solutions, the integration of these solutions into existing networks and ongoing support can be complex. Accordingly, the Company needs highly trained technical and customer support personnel. Hiring technical and customer support personnel is very competitive in this industry, due to the limited number of people available with the necessary technical skills and understanding of our products. This is particularly true in Israel, where competition for such personnel is intense. Our success depends upon our ability to attract, train and retain highly qualified technical and customer support personnel. 7SIGNIFICANT CAPITAL REQUIREMENTS; NEED FOR ADDITIONAL FINANCING; DEPENDENCE ON FINANCING TO IMPLEMENT EXPANSION The Company's capital requirements have been and will continue to be significant and our cash requirements have historically exceeded and will likely exceed cash flow from operations. As a result, we may need to depend upon bank credit lines and sales of the Company's securities to fund our development and marketing activities. The Company's ability to obtain additional financing, and the terms of any such financing, could be adversely affected by a variety of existing circumstances. No assurance can be given that the Company will be able to obtain such financing or that the financing obtained will be on terms satisfactory or favorable to the Company. LIMITED MARKETING CAPABILITIES; DEPENDENCE ON THIRD PARTY MARKETING ARRANGEMENTS TheCompany through Marnetics Ltd.hashad commenced marketing activities relating to productcommercialization and hascommercialization. It had limited marketing experience and limited financial, personnel and other resources to undertake extensive marketing activities independently. Accordingly, wewill relyrelied on arrangements with third parties for the marketing and distribution of our products, including arrangements with distributors.There can be no assurance that we or any third parties will be able to market our products successfully or that their efforts will result in any significant revenue.The Companycould also be dependent upon such dealersterminated these agreements during year 2003.Dependence on Key Personnel
As of April 26, 2003, the Company decided to lay off the majority of its and
distributors and other third parties to provide installation and support services. To the extent that such third parties provide inadequate services and support, over which we will not have direct control, our reputation and our ability to continue to sell additional products through such distributors or dealers would be adversely affected. While we believe that any independent distributors or other strategic partners with which it enters into such arrangements will have an economic motivation to sell our products, the time and resources devoted to these activities generally will be contributed and controlled by such entities and not by us. A declinethose of its wholly-owned subsidiary, Marnetics Ltd. in thefinancial prospectsareas ofparticular distributors or other strategic partners or of any of their customers, could have an adverse effect on the Company. Moreover, joint ventures or similar arrangements may require financial or other commitments by us. There can be no assurance that we will be able, for financial or other reasons, to continue to finalize any additional third party distribution,marketing,or joint venture arrangements or such arrangements, if finalized, will resultsales and research and development. The remaining employees are in thesuccessful commercializationarea ofany of our products. RELIANCE ON INTERNATIONAL SALESadministration.The Company
anticipates having sales in Israel and in international markets, but there can be no assurance that we will be able to do so or that such international markets will be viable. To the extent we are able to expand successfully, it will become increasingly subject to the risks associated with international sales, including economic and political instability, shipping delays, customs duties, export quotas, and other trade restrictions, any of which could have a significant impact on our ability to deliver products on a competitive and timely basis and exacerbate the risks inherent in our business. In addition, we may encounter significant difficulties in connection with the sales of our products in international markets, future imposition of, or significant increases in, the level of custom duties, export quotas, or other trade restrictions that may have an adverse effect on us. CURRENCY EXCHANGE RISKS ASSOCIATED WITH INTERNATIONAL SALES Itisanticipated that most of our revenues will be derived in United States dollars, while a significant portion of our expenses are currently incurred in NIS. Therefore, the Company may be adversely affected by fluctuations in currency exchange rates. We have not engaged in currency-hedging transactions intended to reduce the effect of fluctuations in foreign currency exchange rates on our results of operations. Even if we were to determine that it was in our best interests to enter into any such hedging transactions in the future, there can be no assurance that we will be able to do so or that such transactions, if entered into, will materially reduce the effect of fluctuations in foreign currency exchange rates on our results of operations. In addition, the imposition of exchange or price controls or other restrictions on the conversion of foreign currencies into NIS may have a material adverse effect on our results of operations. 8POTENTIAL PRODUCT LIABILITY; WARRANTY EXPENSE Despite the fact that the company performs on routine basis tests of its products, new products may contain errors after commencement of commercial shipment. Additionally, the company's products, in order to perform, depend upon certain third party hardware and software, which may contain errors and defects that could reduce the performance of the company's products. As a result, the Company may be exposed to potential product liability claims, experience future material warranty expense, by our customers, distributors and users of our products. DEPENDENCE ON KEY PERSONNEL The success of the Company will be largelydependent on the abilities and continued personal efforts of Marnetics Ltd.'s’s senior management, particularly those of Menachem Reinschmidt, Founder of Marnetics Ltd. andCEOChairman of the Board of the Company whose consulting agreement is subject to renewal, David Sheetrit the present acting Chief Executive Officer, previous Chief Operating OfficerIlan Hadar,of the Company and Director in the Company since April 2003, and George Balot, Acting Chief Financial Officer since June 2003 andHanoch Newman, Vice President of Research and Development. Although someDirector of theofficersCompany since December 2002.Menachem Reinschmidt, David Sheetrit and George Balot have
entered into employment/consulting agreementsbeen employed under a services agreement through March 31, 2004 with the Companythese employment/consulting agreements are terminablewhich was extended at a board meeting onrelatively short notice.June 30, 2004 whereby it was agreed to compensate both for their time and services rendered and expenses to the Company for the second quarter of year 2004.It was further discussed at the board meeting on June 30, 2004: the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize.(See – “Item 8B Significant Changes”.)
The loss of the services of these key personnel at this time would have a material effect on
ourthe Company’s ability to manage theon-going operations, and to develop or commercialize our products and technologies. REGULATION We intend to providenegotiations with theCompany's products to customers located throughoutpotential investors as well as theUnited States and in several foreign countries. As a result,liquidation of theCompany may be required to qualify to do business, or be subject to tax or other laws and regulations, in these jurisdictions even if it does not have a physical presence or employees or property in these jurisdictions. The application of these multiple sets of laws and regulations is uncertain, but we could find the Company is subject to regulation, taxation, enforcement or other liability in unexpected ways, which could materially adversely affect our business, financial condition and results of operations. CONTROL BY PRINCIPAL SHAREHOLDERSCompany.Control by Principal Shareholders
As of
June 30, 2002,February 2, 2004, our Executive Officers and Directors and principal shareholders beneficially own an aggregate of68.6%61.6% of theCompany'sCompany’s Ordinary Shares on a fully diluted basis (based on vested option, not taking into account unallocated options and options granted but not vested). Such Shareholders, if voting together, would likely have sufficient voting power to elect a majority of the Board of Directors, exercise control of the business, policies and affairs of the Company and, in general, determine the outcome of any corporate transaction or other matter submitted to Shareholders for approval such as: (i) any amendment to theCompany'sCompany’s Articles of Association, (ii) any merger, consolidation, sale of all or substantially all of the assets of the Company and (iii) any privatization transaction, and in general prevent or cause a change in control of the Company, all of which may adversely affect the Company and its Shareholders. In addition, certain shareholders have the right to appoint members of the Board of Directors. Although certain shareholders are contractually obligated to vote for certain director nominees, there is no joint ownership of the shares held by such shareholders under Israeli law and such shareholders do not constitute a"controlling group"“controlling group” under Israel corporate and securitieslaws.laws , and thus are not bound to vote together as a group. See"ITEM“Item 6A- DIRECTORS AND SENIOR MANAGEMENT"– Directors and"ITEM 7-MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS." RISKS RELATING TO COLLECTION OF DEBT BY THE COMPANYSenior Management” and “Item 7-Major Shareholders and Related Party Transactions.”8
Risks Relating to Collection of Debt to the Company
Effective March
31,2001 the Company sold to Idan Millenium Investments and Assets Ltd.("IDAN"(“IDAN’), a company under the control of Dov Strikovsky, a major shareholder and former President, Chairman and CEO of the Company, all the fixed assets, inventories,goodwill andother assets and liabilities and related goodwill, in the amount of an appraised value of $2,000,000, relating to the electrical operations, for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum with IDAN to change the terms of payments to such that the first 11 installment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000. The Company, considering the collectibility probability, decided to establish an allowance on the amount not yet collected.There can be no assurance thatDuring 2002 $71,000 were repaid on the account of the sale consideration. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Companywillto collect theconsideration owedamounts due from him. (See“Item 7B – Related Party Transactions.”)In prior years the Company granted loans to
it fromMr. Strikovsky in thesale. At December 31, 2001 aamount of $1,228,000. The loan was linked to the Israeli CPI and bore interest of 2% per annum andiswas repayable in eight annual installments each comprised of 1/8 of the principal and the9accrued interest thereon commencing December 2000. At December 31, 2001 was granted, duringtheyear 1998, to a major shareholder and former director and officer, Mr. Strikovsky. TheCompany reassessed the collectibility of the loan inthe amount of $1,228,000 inaccordance with provisions of SFAS No. 114"Accounting“Accounting by Creditors for Impairment of aLoan"Loan”, and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. Income from impaired loan will be recorded using the cash method.There can be no assuranceDuring 2002 $142,000 were repaid on the account of the loan.To secure his obligations under the various agreements Mr. Strikovsky has collateralized 300,000 shares that he owns of the Company. No other payments were made by Mr. Strikovsky subsequent to December 31, 2002. The Company has initiated legal efforts aimed at collecting amounts due from Mr. Strikovsky and the companies under his control. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company
willto collect theconsideration owed to itamounts due fromthe loan. During the yearhim. (See “Item 7B – Related Party Transactions – Indemnification by Significant Shareholder.”)On May 9, 2001 an agreement (the “Bank Agreement”) was signed between the Company
entered into an agreement withand Bank Hapoalim,Ltd inLtd. (the “Bank”) with respect to theCompany's short-term credit borrowed fromCompany’s debt to the Bank in the amount of$3,127,000.$3,127,000 (the “Debt”). In accordance with the Bankagreement,Agreement, the Bank has agreed to release the Company from its obligation to repay the Debt and to cancel the floating charge and liens registered in favor of the Bank on properties of the Company provided that, by May 31, 2001 the Company shall pay $954,000 to the Bank on account of the Debt (the “Repaid Amount”) and in addition the Company shall have assigned to the Bank all its rights with respect to the debt of themunicipalityMunicipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaid amount.In addition, the Company has provided the
bankBank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of the Municipality of HodHasharon. See "ITEMHasharon, which has been assigned to the Bank (Note 10b). To date the Municipality of Hod Hasharon has not made any re-payment on account of the debt, and therefore the guarantee has not decreased. According to the terms of the Bank Agreement, following November 30, 2002, the Bank is entitled to exercise the outstanding amount of the guarantee, and since the guarantee has not decreased, the Company decided to establish an allowance for the guarantee in full.The Company has informed the Bank that, following prolonged negotiations, the Municipality of Hod Hasharon stated its position to the effect that it is not obligated towards the Company and retains all rights in the matter, and that furthermore has, in its opinion, claims against the Company amounting to some NIS 4 Million (approximately $900,000). In light of the position taken by counsel to the Municipality, the Company informed the Bank that bringing legal action is unavoidable, and that in the opinion of the Company remains the only course of action that may result in the recovery of the funds due to it.
9
In light of the current relationship between the Company and Mr. Strikovsky (See“Item 8A -
LEGAL PROCEEDINGS"Legal Proceedings”), the Company was of the opinion that the suit brought against the Municipality of Hod Hasharon should be based upon the letter by the head of the Municipality’s Engineering Department approving the assignment of the debt to the Bank and confirming the debt towards the Company.Therefore, the Company believed that it would be proper that the Bank join the Company in bringing such suit and share in its expense. The Bank has yet to formally respond to the Company’s suggestion, although it has learned from counsel to the Bank that it is reluctant to join the suit, but may be willing to share some of the expenses involved. The Company is of the opinion that the Bank’s position is detrimental to the Company’s efforts.
On November 20 2003, the Company’s subsidiary, Marnetics Ltd. filed suit against the Municipality of Hod Hasharon and its then head of the Engineering Department in the sum of NIS 10,000,000 (approximately $2.2 million). On March 2004, the Municipality of Hod Hasharon filed a counterclaim for NIS 4.48 million for payment in excess of work and services provided.(See“Item 8A - Legal Proceedings”.)
The setting up of a reserve for the value of the guarantee has had a negative impact on the financial condition of the Company. Failure to collect the total amounts, or part of it, from Idan Millenium Investments and Assets Ltd, Mr. Dov Strikovsky and the
municipalityMunicipality of Hod Hasharoncouldcan have a negative impact on financial condition thecompany future cash flowCompany andliquidity. RISKS RELATING TO MARNETICS' LOCATION IN ISRAELon the negotiations with any potential purchaser or investor.Risks Relating to Legal Proceedings
The Company and Mr. Strikovsky was named as a defendant in a claim for specific performance of an agreement entered into by the Company and the plaintiff, Ananda Capital Partners, Inc., in April 1999 (the “Agreement”) as well as damages as a result of a breach of the agreement. On July 2, 2001, due to the fact that no defense and/or reply was provided by the Company or Mr. Strikovksy, judgment was entered against the Company in the amount of $725,000. On February 7, 2002 the Company and Mr. Strikovsky filed a motion to vacate the judgment and on February 27, 2002 the court rejected the motion. The Company filed an appeal on the court decision that was accepted by the Supreme Court of the State New York with instructions to allow evidentiary hearing. The hearing was held on May 22, 2003 and the Company is awaiting the court’s decision. The plaintiff proposed to settle the suit for $250,000 and while the Company was willing to further negotiate a substantially lower amount, in light of the plaintiff’s position the Company decided to reject the proposal. In 2001 the Company has established an allowance in the amount of $750,000 to provide for its possible exposure. In light of those developments, the Company decreased the allowance by $500,000 to $250,000, which, in light of the judgment against the Company and the settlement offer proposed, represents a conservative estimate of the probable exposure.
During June 2002, the plaintiff filed a request of enforcement with the District Court of Tel Aviv, Israel, asking the court to enforce the judgment against the Company and Mr. Dov Strikovsky in the amount of $725,000, in Israel.
The Company filed the appropriate papers to bring an appeal to the rejection of the motion to vacate the judgment, in July 2002.
On September 10, 2002, the District Court of Tel Aviv, Israel agreed to grant the Company an extension of thirty days to file its motion to contest the enforcement of the judgment from the date of the Israeli Court’s decision regarding the motion to dismiss the enforcement of judgment claim. The Court later denied the Company’s motion. In light of the proceedings conducted in this matter in the United States, a hearing as to the substance of the claims has not yet been held, and Company and opposing counsel have agreed, from time to time, to postpone the date of such hearing. Currently, a hearing in the case is scheduled for January 9, 2005.
On September 10 2003, the Company filed suit against Mr. Strikovsky and others in the sum of NIS 3,193,743 (approximately $700,000) due to default under loans extended to Mr. Strikovsky by the Company, as well as other debts related to the sale of its electrical business to companyies under Mr. Strikovsky’s control. On December 4, 2003, the Company was able to obtain a court order for the seizure of certain notes credited to the defendants by the Municipality of Hod Hasharon.
In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him. There is scheduled on July 14, 2004, a hearing in court for the protection of the creditors of Mr. Strikovsky.
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The setting up of a reserve for the value of the guarantee has had a negative impact on the financial condition of the Company. Failure to collect the total amounts, or part of it, from Idan Millenium Investments and Assets Ltd, Mr. Dov Strikovsky and the Municipality of Hod Hasharon can have a negative impact on financial condition the Company and on the negotiations with any potential purchaser or investor.
Risks Relating to Marnetics’ Location in Israel
Risk of Political Instability. Our principal offices and the research and development facilities of the Company are located in Israel and, thus, are directly affected by economic, political and military conditions in
Israel. Since the establishment of the State ofIsraelin 1948, a state of hostility has existed, varying in degree and intensity, between Israel and various Arab countries. In addition, Israel and companies doing business with Israel have been the subject of an economic boycott by the Arab countries since Israel's establishment. Although Israel has entered into various agreements with Egypt, Jordan and the Palestinian Authority and various declarations have been signed in connection with efforts to resolve some of the aforementioned problems, no prediction can be made as to whether a full resolution of these problems will be achieved or as to the nature of any such resolution. Since October 2000, there has been a substantial deterioration in the relationship between Israel and the Palestinians, which has resulted in increased violence. The future effect of this deterioration and violence on the Israeli economy and our operations is unclear. Ongoing violence between Israel and Palestinians may have a material adverse effect on our business, financial conditions and results of operations.History of Inflation. In the early to mid-1980s,
Israel'sIsrael’s economy was subject to a period of very high inflation. However, inflation was significantly reduced by the late 1980s due primarily to government intervention.The annual rate of inflation in Israel was 7.0% for 1997, 8.6% for 1998, 1.3% for 1999, 0% for 2000, 1.4 % for 2001, and from January 2002 to May 2002 was 4.9%. The dollar "carrying value" of certain assets and liabilities of the Company, which are denominated or payable in NIS, are influenced by the rate of inflation in Israel compared with that of the United States and prevailing NIS/dollar exchange rates.Increases in inflation in Israel could have an adverse impact on ourresults of operationsfinancial statements if the rate of inflation increases without a corresponding devaluation of the NIS against the dollar.Military Reserve Duty. Certain of our officers and employees
arewere currently obligated to perform annual reserve duty in the Israel Defense Forces and are subject to being called for active military duty at anytime.time and are obligated to perform, dependent on rank, up to 36 days of military reserve duty annually. Additionally, all such residents are subject to being called to active duty at any time under emergency circumstances. We have operated effectively under these requirements since ourinception. No predictioninception though no assessment can be made as to theeffectfull impact of such requirements onthe Company of any expansion of these obligations.our remaining workforceIncome Taxation. Non-residents of Israel are subject to income tax on certain income (including cash dividends) derived from sources in Israel. The
conventionConvention between the State of Israel and the federal government of the United States with respect to taxes on income provides for a maximum tax of 25% on dividends paid to residents of the United States.10ITEM
It May Be Difficult to Enforce a United States Judgment Against the Company, its Officers and Directors named in this Annual Report or to Assert United States Securities’ Laws’ Claims in Israel or Serve Process on Our Officers.
The Company is incorporated in Israel. All of our executive officers and directors named in this annual report are nonresidents of the United States, and a substantial portion of our assets and the assets of these persons are located outside the United States. Therefore, it may be difficult to enforce a judgment obtained in the United States based upon the civil liabilities provisions of the United States Federal securities laws against us or any of those persons or to effect service of process upon these persons in the United States. Additionally, it may be difficult for individuals to enforce civil liabilities under United States federal securities laws in original actions instituted in Israel.
Item 4.
INFORMATION ON THE COMPANYInformation on the CompanyA.
HISTORY AND DEVELOPMENT OF THE COMPANYHistory and Development of the CompanyThe Company was formed in 1994 as Stav Electrical Systems (1994) Ltd., a private company established in the State of
Israel corporation.Israel. From 1994 through 2000, the Company was an electrical and lighting contracting and engineering firm engaged in the installation and maintenance of infrastructure works located in the State of Israel.During December 1998, the Company consummated an initial public offering pursuant to which the Company sold 800,000 ordinary shares (including 100,000 ordinary shares sold by Mr. Dov Strikovsky, a former director and officer of the Company) for net proceeds of approximately $3.6 million.
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On June 1, 2000 a share exchange agreement was signed between the Company and Marnetics. The agreement was consummated after final approval of the
Company'sCompany’s shareholders on December 20, 2000, whereby the Company completed a combination transaction with Marnetics whereby the Company changed its name to Marnetics Broadband Technologies Ltd. The Company acquired all of the outstanding share capital of Marnetics, an Israeli company formed in 1998, andMarnetics'Marnetics’ shareholders received Ordinary Shares and options representing approximately 75% of theCompany'sCompany’s outstanding Ordinary Shares and options on a fully-diluted basis. Marnetics became a wholly owned subsidiary of Marnetics Broadband Technologies Ltd. as a result of this transaction. The Company issued 4,993,048 Ordinary Shares and 1,761,236 options (including 308,300 newly unvested options to employees of Marnetics) in connection with the transaction, and decided to reserve for the Employee Stock Option Plan 1,000,000 options. As a result of this transaction, the Company changed its focus from electrical contracting to the development and marketing of broadband Internet fortification solutions, designed to enhance performance and infrastructure utilization in the broadband Internet environment. In June 2001, due to changes in the broadband Internet market, the Company subsequently changed its technological focus as described in subsection B below.In February 2000, Marnetics issued 130,719 ordinary shares
of NIS 0.01 par valueto ECI Telecom Ltd. for$ 2,000,000.$2,000,000. In October 2000 Marnetics reached an agreement with a group of new investors (the"Investors"“Investors”). In accordance with the agreement,the CompanyMarnetics issued to the Investors 221,200 ordinary shares in consideration of $5,076,000.Effective March 2001, the Company sold to Idan Millenium Investments and Assets Ltd. (“IDAN’), a company under the control of Dov Strikovsky, a major shareholder and former President, Chairman and CEO of the Company, all the fixed assets, inventories, other assets and liabilities and related goodwill, in the amount of an appraised value of $2,000,000, relating to the electrical operations, for a consideration of $597,000.(See“Item 7B – Related Party Transactions”.)
During 2001, the Company changed the direction of its technology from its core business of developing and marketing broadband Internet fortification solutions to the development and marketing of network capacity enhancement and network information analysis solutions for IP networks or the Network Business.
During December 2001 the Company nominated Mr. Menachem Reinschmidt to the position of CEO of the Company.
During December 2002, the Company nominated Mr. Menachem Reinschmidt to the position of Chairman of the Board of the Company and elected new directors. At the end of June 2003, David Sheetrit, Director in the Company since April 2003 and Chief Operating Officer since January 2001, became Acting Chief Executive Officer of the Company. (See“Item 6 - -Directors, Senior Managers and Employees.”)
As of April 2003, the Company decided to lay off the majority of the employees of the Company and those of its wholly-owned subsidiary, Marnetics Ltd.
At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company and to cease SEC filings and reporting if a purchaser was not found prior to March 31, 2004. (See“Item 8B – Significant Changes.”) The Company has been in on-going serious discussions in the second quarter of year 2004 with a potential investor to purchase control of the Company. There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained. (See“Item 8B – Significant Changes.”)
The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would no longer be available nor would it continue to be in its current form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving on its Board and Audit Committee, and all other requirements as detailed under the Company’s Law regarding public companies.
Our principal executive offices are located at 10 Hayezira St.,
Ra'ananaRa’anana 43000 Israel, and our telephone number is ++ 972-9-761-6868.12
B.
BUSINESS OVERVIEWBusiness OverviewThe
Company'sCompany’s operationsduring 2001consisted oftwo lines of business: (1)the core business of developing and marketingbroadband Internet fortification solutions which shifted to the development and marketing ofnetwork capacity enhancement and network information analysis solutions for IP networks(the "NETWORK BUSINESS"),or the Network Business, which is handled through our wholly-owned subsidiary, Marnetics Ltd.,During 2003 and(2) historical businessthroughout 2004 the Company has dealt with some legal issues and collection ofelectrical and lighting contracting and engineering business (the "ELECTRICAL BUSINESS"),debt relating to the Electrical Business, which was sold during 2001.See "ITEM(See“Item 8B- SIGNIFICANT CHANGES."– Significant Changes.”)As of April
1, 2001,26, 2003, the Companythroughdecided to lay off the majority of the employees of the Company and those of its wholly-owned subsidiary, Marnetics Ltd. in the areas of marketing, sales and research and development The remaining employees are in the area of administration and are being compensated until end of June 2004. It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.As of March 2004, the Company has begun taking steps towards the process of liquidating the Company while at the same time, seeking a purchaser for the Company and/or its assets.(See “Item 8B – Significant Changes.”)
NETWORK BUSINESS
Current Strategy – Sale of Company; Sale of Marnetics Ltd.; Selling of Marnetics Technology
The resulting lack of sales, the inability of the Company to collect outstanding debts from a major shareholder and also from the purchaser of the net assets of the electrical operations business, and lack of funding and investment in the Company during year 2003 and first half of year 2004 has caused a material adverse effect on the financial condition of the Company and forced the Company to prepare the steps necessary to initiate liquidation procedures.
At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company.(See “Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company has been in on-going serious discussions throughout the second quarter of year 2004 with a potential investor who is interested in purchasing control of the Company (See Item 8B – Significant Changes). There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained. Further, Marnetics is
engaged onlylimited when negotiating the possible sale of its technology, based on the terms established in theNetwork Business. 11NETWORK BUSINESS GENERALagreement with the Office of the Chief Scientist of Israel and under applicable law, on the condition that Marnetics may not sell its intellectual property to a non-Israeli entity.The
Company'sfollowing description of the Company’s operating subsidiary, Marnetics Ltd.,is inrelates to the stage of commercialization of its products developedinbetween theyearperiods 2001until today.through June 2003. Since then the Company has ceased the stage of commercialization.General
In early 2001, the global telecommunications markets experienced a major decline. As a result of the downturn, the deployment of broadband Internet access slowed dramatically, putting in jeopardy
Marnetics'Marnetics’ business plan, which primarily targeted the broadband market. As a result thereof, Marnetics Ltd. shifted its focus and developed a platform of products which it called theProspera(TM)Prospera™ family of products, which are intended to provide network capacity enhancement and analysis solutions for bottlenecks that may occur especially when local area networks("LAN"(“LAN”) meet the congested wide area network (WAN) (the WAN Access Link), thereby decreasing the usability and productivity of revenue generating mission critical applications.INDUSTRY BACKGROUND AND MARKET OPPORTUNITY13
Industry Background and Market Opportunity
Current priorities in IP networks management are focusing on better utilization of existing infrastructure, improvement in performance and providing
value-addeda quality of service level that can generate revenues or reduce costs. TheCompany'sCompany’s objective is to utilize its existing technology and integrate it into a platform of solutions that addresses these current market priorities.Enterprises expect mission-critical applications to run quickly and reliably, with predefined performance. Many applications running simultaneously can often cause congestion within the network especially in the routers, leading to variations in network availability that range from slow performance to denial of service. In such instances enterprises require that revenue generating mission-critical applications be allowed to function without delays created by less significant traffic and bandwidth-hogging Internet applications such as heavy downloads, music files, streaming media, and other non-critical applications.
The advent of the Internet and the explosive growth of time-sensitive and revenue generating mission-critical applications such as ERP, CRM, Databases, etc., as well as Intranets, Extranets and the Web, are creating intense strain on IP networks. This is particularly prevalent at the interface links between the very fast 100Mbps-1Gbps Ethernet LAN and the much slower channels of frame relay, ATM, leased lines and
VPN'sVPN’s of the WAN(usually(usually holds a bandwidth of up to 2Mbps).Heavily congested networks cause a deterioration in the end-user experience, with peak traffic conditions and the unbalanced use of resources creating a snowball effect, resulting in compromised mission-critical application availability and causing events such as insufficient response time, server slowdown, bottlenecks and poor overall network performance.
WhilstWhile the network and bandwidth management mechanism are of importance, it should be recognized that a
network'snetwork’s architecture is designed to serve applications and users and not to deal with bandwidth-hungry applications, peak-time congestion packet losses or other adverse symptoms created by the unbalanced use of its resources.When considering the problem of how to improve mission-critical application performance it is necessary to concentrate on network congestion and those resources that have the greatest impact on the network when under intense strain or failure. The busy interface between the WAN and LAN affects network capacity, performance and availability more than any other point on the network, as it is through this point that those bandwidth-hungry, non-critical applications impact network resources. At this interface, there are typically frequent congestion and capacity problems, as heavy downloads and surfing congest routers, saturate links, exhaust buffers and flood servers - compromising both the health and availability of the network and those applications running over it.
To adequately address this, the objective of any solution should not be just to improve the overall performance of the network, but to fortify and accelerate those mission critical applications that require precedence over resource-consuming applications while maintaining acceptable economical cost effective ratios.
12EXISTING ALTERNATIVE SOLUTIONSExisting Alternative Solutions
Because of the congested WAN access links, enterprises tend to add infrastructure until over-provisioning the network. This requires expensive upgrades to LAN and WAN infrastructure and associated network equipment. Moreover, incremental increases in infrastructure only temporarily alleviate network congestion, leaving the following problems unresolved: over-provisioning results in under-utilization of the network during non-peak periods; deployment costs and increased recurring service charges
can bebecome expensive, especially for networks with many remote sites and for international networks; and there is no application performance visibility to enable effective capacity planning.There are several distinctly different types of solutions currently available that attempt to address application and network performance issues, such as:
Caching-Web Caching is the act of storing copies of Web pages on a
`local'‘local’ system. If the same pages are requested at a later time, and the cached copy is still valid, there is no need to contact the origin server again. Thesecache hitscan reduce latencies and network bandwidth, although there is no congestion handling or control of oversubscription as caching is designed mainly to reduce link traffic. The main drawback, however, is that most of the caching devices are HTTP oriented by design and do not support other significant high volume applications such as FTP and email. In addition to that, the cache algorithm is based on statistical algorithm, therefore limited to the actual"hit ratio"“hit ratio” for every type of traffic. The efficiency for software downloading, music files, video streaming and cryptic files would be very limited.14
Bandwidth Management(also calledQuality of Service Solutions) -Bandwidth management is, in essence, discrimination between session and user types to assist in delivering higher quality of service for specific users or applications. Although this can provide limited relief to congested networks the initial implementation is highly problematic, requiring labor-intensive tailoring to exact individual network specifications. Ongoing maintenance is similarly cumbersome as this type of solution is highly-sensitive to changes on the network, requiring re-configuration and re-building whenever network modifications or upgrades are carried out.
Compression/Decompression
-– Data compression was very effective in the past, specifically with certain types of files, such as text files. However, data compression has lostit'sit’s value intoday'stoday’s corporate environment, as it is not effective when it comes to"random"“random” data such as the documents used by enterprises today-– wording files, presentations, spreadsheets, images, and zip files. When porting data compression to real-life packet-based networks, vendors, as well as users, have found that data compression is less effective. The reason behind this is that corporate networks and Internet technologies, usually carry pre-compressed material, and packets usually carry very little resemblance to prior packets. Implementing of compression products requirestwo sides installation, thus complicating the installation process. The cost of such solution would be very high, since installation would have to be not only in the data center but also in the remote branches.Purchasing Additional Bandwidth - -Until recently certain network slow-down symptoms have been interpreted as an indication of bandwidth shortage, resulting in additional, extremely costly, WAN trunk bandwidth being purchased as an appropriate solution to the problem. Although increasing bandwidth can provide marginal relief to a network, accumulated experience has shown that additional bandwidth does not fundamentally change the situation as increasing bandwidth only serves to allow aggressive users/applications to disproportionately consume the additional resources, compounding both the problem and the relative costs involved.
OUR PRODUCTS AND SERVICES - PROSPERA(TM) FAMILY OF PRODUCTS Prospera(TM)Our Products and Services – Prospera™ family of products
Prospera™,
Marnetics'Marnetics’ product line, is an innovative Capacity Enhancement Platform, which improves bandwidth utilization and enables more subscribers to be served simultaneously over the Wide Area Network.Prospera(TM)Prospera™ addresses one of the fundamental problems of communication networks: capacity and scalability, especially in high-volume traffic situations.Prospera(TM)Prospera™ solves the problem of mission-critical application performance on congested IP networks by fortifying and13accelerating applications such as ERP and CRM in a fully adaptive and automatic manner. The product is intended to better manage over-subscription situations in Internet and Intranet networks. As a result, users of Prospera(TM)Prospera™ save money by delaying additional bandwidth purchases, while improving the quality of service level and customer satisfaction.As of today, the Prospera(TM)The Prospera™ family of products comprises two main products:
oThe Prospera
MegaLink(TM)MegaLink™ (a software solution) - A Network Capacity Enhancement solution aimed towards service providers and enterprises. It introduces a new, comprehensive approach to IP network capacity challenges, mission critical application protection and maximizes network infrastructure utilization by increasing the effective capacity, enabling enterprises and Service Providers to provide better service to their customers at lower costs.oComplimenting the Prospera MegaLink™, is the Prospera CisMate (a hardware solution), a router companion device specifically designed for resolving problematic network congestion situations and optimizing the actions of the Cisco router in the network while enabling mission critical data applications.ADSL FreeFlow (a limited functionality software solution), aims to solve the problem of a very narrow upload link in ADSL lines used especially in SOHO (small office, home office) by allowing critical application such as HTTP to send acknowledgements to remote servers and as a result continue the sessions.
15
The Prospera
Expert(TM)Expert™ - A Network Information System that brings a new approach to network performance and capacity monitoring and analysis for service providers and enterprises.PROSPERA MEGALINK(TM)The commercial version of Prospera Expert™ (V2.1) is complete.Further, Marnetics had launched anISP Rating tool through which consumers will be able to compare the performance of the various ISPs operating in Israel and also serve as a marketing/reference site for the capabilities of the Prospera Expert™.
Prospera MegaLink™
Marnetics has developed a cost-effective, enterprise-class application-acceleration and network capacity enhancement technology based on the patent pending DSDQ (Discrete State Driven Queuing) technology that offers a new and comprehensive approach to the challenges of saturated IP Networks and the performance of mission-critical applications.
Aimed at enterprises, Internet related service providers and cellular carriers of all types, Prospera
MegaLink(TM)MegaLink™ is a technology that protects both the user and mission-critical application in peak-load times, dynamically adapting to the various network conditions to enable mission-critical applications to run significantly faster, smoother, and with greater availability.Through protecting key network resources in over-subscription situations, Prospera
MegaLink(TM)MegaLink™ delivers streamlined capacity and performance distribution that allows more users and applications to simultaneously share network resources as well as improving the overall health and stability of the network. It is a scalable, software-based solution that reflects as a standard network device, making it easy to install, manage and upgrade configurations, as well as system management and traffic analysis functionality.Market Positioning
To the best knowledge of the Company,
Marnetics'Marnetics’ technologystandsstood apart from other solutions in that it specifically addresses the problem ofcapacity and mission-critical applicationperformance on congested IP networks. It uniquely fortifies and accelerates those specific applications that are vital to the smooth running of theenterprise'senterprise’s operations by increasing the number of concurrent sessions. In fact, in instances where mission-critical applications, such as CRM, are an inherent part of the enterprises core business, Marnetics solution can provide a significant performance advantage over the competition as well as greater user satisfaction and operational profitability.In addition,The Technology
Prospera
MegaLink(TM) is software-based and scalable to large traffic volume, allowing for quick and easy deployment that does not present the configuration problems seen in many other solutions. The Technology Prospera MegaLink(TM)MegaLink™ is built on a patent-pending, state-of-the-art and intelligent traffic and application-optimization engine, DSDQ that actively monitors and manages resources and applications on a per-session basis. DSDQ dynamically adapts to different traffic patterns (states) and end-to-end session conditions, enabling streamlined performance and availability of mission-critical applications and network resources.14Designed to effectively handle different dynamic mixtures of traffic, DSDQ offers real-time session optimization, relief and recovery from extreme congestion situations, fast recovery from packet-loss and dynamic balancing between sessions, bandwidth-consumption and other network events that influence the utilization and efficiency of mission-critical applications and network resources. Prospera
MegaLink(TM)MegaLink™ is independent of upper layer protocols and physical trunk line infrastructure and supports multi link and multi channel environments, within the WAN topology, from a single box. Installed at the site of the network data center (typically housed at the enterprise headquarters) it supports all trunks from this focal point to the other locations/remote branches.Mission-critical application protection and capacity enhancement are achieved through the employment of Prospera
MegaLink(TM)MegaLink™. Deploying ProsperaMegaLink(TM)MegaLink™ on the network assures the smooth operation and streamlining of ERP and CRM applications, even in peak time situations, by applying dynamic bandwidth balancing between all active connections. Once installed, ProsperaMegaLink(TM)MegaLink™ allows more users to share the congested WAN access links through its traffic algorithm optimization. In addition, mission critical applications are fortified and protected from performance degradation, improving their availability, and response time.PROSPERA EXPERT(TM)16
The Prospera
Expert(TM)platform is based on Microsoft operating systems such as Windows 2000 or Windows XP running on Intel CPU.In addition, Prospera MegaLink™ and Prospera Expert™ are software-based and scalable to medium traffic volume, up to 100 MBPS.
CisMate
CisMate is positioned to monitor and optimize the actions of the Cisco router in the network. Routers are configured to optimize their own operation to the detriment of the rest of the network, even increasing and further exacerbating packet flow problems. Marnetics advocates focusing on integrating a bottleneck-centered solution that is directly aligned, integrated and compatible with the functioning of the router. This enhanced router would organize the packet flow to minimize the overall effects of the entire network when dropping packets in times of congestion.
Network stability depends directly on good routers. However, routers automatically take destabilizing measures to reduce rapidly evolving queue-caused latencies: “Excess” packets are dropped from the queue in order to alleviate this latency upsurge. Packet dropping is detrimental to network mission critical applications (MCAs), the sender resends the “lost” packet and decelerates its transmission pace (in order to avoid more packet losses). It considerably impacts the user’s perceived performance. The “Snow Ball” effect caused by the self-slow-down mechanism in the TCP protocol creates the feeling that “something is stuck in the system”. For corporate MCA’s, packet dropping is very serious. Poor performance (e.g. ERP, CRM, etc.) is translated immediately to productivity problems, financial damages, lost customers, and so on.
The CisMate is a LAN device directly attached to the WAN router by installing both devices on the same Ethernet switch. Using DSDQ, CisMate controls the entire LAN-to-WAN transmitted packet queue. Under normal traffic conditions, the CisMate remains unobtrusive while the data is forwarded directly to the router. However, when the router begins congesting, indicated by increased packets awaiting router service, the DSDQ technology commences.
DSDQ incorporates several vital proprietary mechanisms which specifically address strong traffic bursts that saturate the router. Its main goals include preventing packet-dropping and router-latency minimization. Under site testing, the packet loss ratio under large volumes of traffic decreased from a previously high 5% - 20% range to less than 0.5% with the newly installed CisMate.
The implications of this steep reduction are considerable. A significant percentage of saturated networks packet dropping is eliminated and congested routers are protected from severe performance degradation, maintaining much better service level toward the network users. Session slow-downs will hover around 5% instead of the previous 80% level without the CisMate, equal to a speed increase of over 500%.
CisMate protects the WAN routers and the whole network from severe service level deterioration under strong traffic stress. Also, MCAs will endure the fewest possible problems during network’s most difficult moments, like downtimes, severe slow downs, thus, minimizing damage to the enterprise’s productivity.
Prospera Expert™
Prospera Expert™ enables enterprises,
ISP's,ISP’s, and cellular operators to obtain a detailed overall panoramic picture of their traffic over Wide Area Network (WAN), to help manage their network resources effectively. Users receive comprehensive traffic reports both in real time and in an historical mode by a simple click and view operation in an executive format. ProsperaExpert(TM)Expert™ is specially designed to operate over a large variety of different networks, independent of physical infrastructure and can be deployed easily and quickly at central locations on the network.Prospera
Expert(TM)Expert™ is an advanced Network Information Systems tool. Traditional network management systems focus on monitoring and troubleshooting. ProsperaExpert(TM)Expert™ shifts the center of gravity to issues such as network economy, service level analysis, congestion analysis and future capacity planning. It complements the ProsperaMegaLink(TM)MegaLink™ product that maximizes network infrastructure utilization by increasing the effective capacity and protection of mission critical applications.17
Prospera
Expert(TM)Expert™ was created to meet the need of executives, IT (“Information Technology”) managers and network administrators for a high level tool that focuses on performance provided to the users or subscribers. It also provides a profile of network utilization through a large variety of predefined reports, as well as customized, user defined queries, which are accessible through any standard browser by multiple users. Most important, ProsperaExpert(TM)Expert™ provides a new level of network insight without the need to understand the underlying technologies or protocols.NETQA SERVICESProspera Expert™ software/hardware sales would be a result from purchases by clients either directly or through distributors and installed on the network. Staff of the client’s IT department operate the system and use it either with or without the further involvement of Marnetics staff or local affiliates.
The commercial version of Prospera Expert™ (V2.1) was intended to be completed by June 2003.
NetQA
During 2002, Marnetics launched a new service to be offered to its
customers.customers that was the main sales revenue source for the Company in years 2002 and 2003. The service aims the needs of enterprises to better design their network for capacity and performances optimization. Marnetics uses its expertise in IP networks combined with its advanced Network Information Systems tool, the ProsperaExpert(TM)Expert™, to perform a comprehensive network performance analysis. The outcome of the analysis is in-depth reports and recommendations to the IT managers and network managers how to better utilize their enterprise network infrastructure and how to plan ahead their network infrastructure.Marnetics intendsISP Rating
The ISP Rating concept is the setting up of a web site through which consumers will be able to
implementcompare the performance of the various ISPs operating in their local market. By providing this unique service,usingthe site is expected to become an important hub.ISP Rating is based on the deployment of Marnetics’ technologies for the Israeli market. For its
own resources or,first deployment insome other cases, together with its qualified distributors. CUSTOMERS AND DISTRIBUTORS Management hopes thatIsrael, ISP Rating is seen as a marketing tool which can demonstrate theProspera(TM)abilities of the Expert in a public area.Customers and Distributors
The Prospera™ family
of products and future developmentof products will offer increased functionality while reducing costs and improving performance and total Cost of Network Ownership.Prospera(TM)Prospera™ family of productsis likely tomay be adapted by three main market segments: enterprises, Internet related service providers and cellular carriers. These target audiences will15be reached either through direct contact or, through qualified distributors or, marketing channels, such as Value-Added Resellers or System Integrators. The Company is focusinghas focused its initial marketing efforts in the Middle East, United States,Europeand the Far East.In early July 2001, Marnetics
alsosigned an OEM agreement with Speedwise Technologies Ltd., a company in which Marnetics Ltd. owns a13.12%14.73% interest as ofJune 30,December 31, 2002, to enable Marnetics to sell its products for cellular customers (which are currently in development), whether integrated intoSpeedwise'sSpeedwise’s products or as stand-alone products, toSpeedwise'sSpeedwise’s installed base of approximately 40 cellular companies worldwide and a much broader network of contacts. Pursuant to this agreement, Speedwise was to pay Marnetics 30% of the income generated by the sale and maintenance of the Marnetics products. This agreement had a one-year term with automatic renewal. As of November 1, 2001, the OEM agreement was cancelled between the parties. As of December 2003 Speedwise Technologies Ltd. business operations has ceased.(See –“Item 7B Related Party Transactions”)18
In March 2002, Marnetics signed a distribution agreement with Magalcom Communications & Computers Ltd. to become a
non-exclusivenon–exclusive distributor of Marnetics products in Israel. The agreement has terminated during June 2003.In April 2002, Marnetics signed a distribution agreement with TNN Networks Ltd. to become a
non-exclusivenon–exclusive distributor of Marnetics products in Israel. The agreement has terminated during June 2003.In
MayOctober/November 2002, Marneticssignedinstalled its first commercial site with Singapore’s National Cancer Center (NCC) through the deployment of the Marnetics’ Prospera™ product line, the MegaLink and the Expert, to improve performance and visibility across the networks for their oncology department. NCC operates adistribution agreementdistributed Intranet network, and has benchmarked Marnetics withIP Tech S.A. de C.V.other, leading bandwidth management solutions. Marnetics Prospera MegaLink solution was selected primarily due tobecome a non-exclusive distributorits success in fortifying the performance ofMarnetics products in Mexico.mission-critical real-time applications, even when the network is heavily congested. NCC has also installed the Prospera™ Expert to conduct ongoing analysis and reporting on the traffic flow across the network.During 2002, Marnetics completed tests
toof its products and started toinstall beta sitessell its products and services mainly in Israel.During year 2003, Marnetics has ceased marketing efforts outside of Israel and was concentrating its efforts inside Israel as well as
trialattempted to find distributors inselected customers. LICENSING ARRANGEMENTSthe United States through the agreement with RevenueTraction, LLC. After June 2003, with the firing of the marketing and sales employees, Marnetics ceased all marketing and sales efforts.Licensing Arrangements
In April 2001, Marnetics Ltd. entered into a software license agreement with Speedwise Technologies Ltd., a company in which Marnetics Ltd. owns a
13.12%14.73% interest as ofJune 30, 2002.December 31, 2003. Under this license agreement, Marnetics granted Speedwise a non-exclusive license to use certain programs and software products owned by Marnetics which Speedwise is using to develop other software products. Marnetics is entitled to receive a fee based on the sale of this derivative software product of either (a) US $25 per concurrent user if sold bundled with other Speedwise products, or (b) 15% of net revenues from the product. The agreement has a perpetual term.Marnetics is negotiating withDuring October 2002 Speedwiseto altersold most of its assets and IP and thetermsCompany does not expect significant revenues from this agreement, if any. As ofthe software license agreement. COMPETITIONDecember 2003 Speedwise Technologies Ltd. business operations has ceased. (See “Item 7B - Related Party Transactions.”)Competition
We compete in a
new, rapidly evolving andhighly competitive sector.We expect competition to persist and intensify in the future from a number of different sources. Increased competition could result in reduced prices and gross margins for ourOur productsand could require increased spending by us on research and development, any of which could harm our business. Wecompete with products of Packeteer, Allot, Expand, Peribit, Cisco, Check Point and several small private companies that sell products that utilize competing technologies to provide bandwidth management and network monitoring systems. In addition, our products and technologycompetecompeted for information technology budgets (CapEx) allocations with services that offer network analysis offered by IT service providers. Lastly, we face indirect competition from companies that offer enterprises and serviceproviders'providers’ increased bandwidth and infrastructure upgrades that increase the capacity of their networks, and thereby may lessen or delay the need for capacity enhancement.We believeResearch and Development
During April/May 2003, the
principal competitive factorsMarnetics laid off the research and development employees and in June 2003 Hanoch Newman VP R&D left thecapacity enhancement solutions market are: o expertiseCompany. This has had an adverse effect on the business andin-depth knowledge of IP networks structure, networks traffic and infrastructure behavior; o timeliness of new product introductions; o ability to integrate easily into the existing network infrastructure; 16o ability to ensure end-user productivity and mission critical application performance; o compatibility with industry standards; o products that decrease latency and packet loss; o products that demonstrate short Return on Investment (ROI); o size and scope of distribution network; o brand name; and o access to customers and size of installed customer base. While various such solutions and technologies exist which address the network management problem, there is, to the best of our knowledge, no similar product based on a similar technology like that developed by Marnetics to increase capacity of traffic flow over IP networks. In the future, competing products may be developed and marketed by numerous well-established, well-financed companies, including traffic management vendors, network optimization solutions developers, cellular application providers and cellular vendors. In addition, our products will compete indirectly with other network capacity enhancement solutions and other queuing schemes, although we believe that our new product line will enhance rather than conflict with these products. Marnetics has sufficient cash to finance the anticipated costs of development activities of its product line through year-end 2002. The decision to modify the Marnetics' technology road map following the broadband Internet market decline accordingly did delay the commercializationoperations of theCompany's productsCompany andservices from what was previously reported by the Company. RESEARCH AND DEVELOPMENT Our currentof Marnetics.Previously, our research and development plan
iswas aimed at leveraging theCompany'sMarnetic’s current technology and developing theProspera(TM)Prospera™ family of product and related products.19
In May 2002, Marnetics
Ltd.submitted an application to obtain research and developmentfundinggrant in the sum of$250,000$230,000 from the Office of the Chief Scientist, of the Ministry of Industryofand Trade, of the State of Israel("OCS"(“OCS”).which was approved in November 2002. To date Marnetics has received a grant of $220,000. The grant is based on research and development expenses that Marnetics had actually expensed until December 31, 2003. Thereiscan be no certainty that theapplicationremaining funding will beapproved,received by Marnetics.As mentioned earlier, Prospera MegaLink™was originally Marnetics’ intended flag ship product. However, market feedback, especially the difficulties in selling software to operate on an existing network, has resulted in a shift in strategy towards:
a)
Developing the NetQA methodology, including the development of the Prospera Expert Pro, both supporting the overall revenue generating objectives.
b)
Migration of the Prospera software to positioning as an appliance (hardware) with theCisMate to be clearly positioned to boost router performance.
c)
The development of the ADSL FreeFlow which provides capacity enhancement functionality to ADSL connected businesses.
As a result, Marnetics had intended to position its products as both actively and
if approved, what conditionspassively protecting theOCS will demandnetwork, rather than simply improving its performance.The commercial version of
Marnetics Ltd., and if this wouldProspera Expert™ (V2.1) had been intended to beacceptable to the Company. TRADE SHOW Marnetics exhibited at CommunicAsia 2002, Asia's premier international information and communications technology forum that took placecompleted in June17-21, 2002 in Singapore, continuing to introduce the Prospera(TM) line2003.A prototype of
products. The Company chose to introduceCisMate was introduced allowing a relatively fast release of the productline at CommunicAsia 2002 because it is a large INFOCOMM showduring Q1 of 2003 but all commercialization efforts ceased inAsia. By exhibiting alongside other international technology leaders who showcase their products to business professionals looking for the latest IT productsQ2 of 2003.Marketing, Promotional, and
servicesConsultantsIn June 2003, the Company
hopes to make potential distributors aware of its new product line. GROWTH STRATEGY - MERGERS AND ACQUISITIONS As part of its growth strategy, the Company seeks to merge with or acquire other businesses. The Company is seeking mergerceased marketing, promoting andacquisition candidates in selected markets and from time to time engages in exploratory discussions with potential merger and acquisition candidates, although it has not entered into any definitive agreement to do so. There can be no assurance, however, that the Company will be able to identify and merge with or acquire targeted businesses or obtain financing for mergers and acquisitions on satisfactory terms. Furthermore, there can be no assurance that competition for merger and acquisition candidates will not escalate, thereby increasing the costs of making mergers and acquisitions or making suitable mergers and acquisitions unattainable. 17MARKETING, PROMOTIONAL, AND CONSULTANTSretaining marketing oriented consultants.In January 2002, Marnetics
Ltd.entered into promotional agreement with Karif Communications Ltd. to provide to Marnetics public relations services, subject to extension during June, 2002. The agreement expired May 2003.In February 2002, Marnetics
Ltd.entered into a services agreement with Expenion LLC, to provide to Marnetics, primarily in the United States but not limited to such, on a non-exclusive basis, business development services for the sale of its products.In February 2002, the Company entered into a non-exclusive finder's agreement with Gentech Holdings SA and Opus Holdings SA to assist in raising equity investmentMarketing efforts have ceased during year2002 for fees and securities.2003.In March 2002, Marnetics
entered intosigned aservicesdistribution agreement withLevi Zelkind,Magalcom Communications & Computers Ltd. toprovide tobecome a non–exclusive distributor of Marnetics products inthe Territories of Russia, Kazakhstan, Poland, Yugoslavia, Slovenia, Czech Republic, and Greece, on a non-exclusive basis, business development services for the sale of its products.Israel. In April 2002, MarneticsLtd. entered intosigned aservicesdistribution agreement withMenachem SharronTNN Networks Ltd. toprovide tobecome a non–exclusive distributor of Marnetics products in Israel. The Company terminated these agreements in June 2003 and the Company remains without any local distributors in theTerritory of Southern Africa, on a non-exclusive basis, business development services for the sale of its products.Israeli market.In June 2002, the Company entered into a letter of intent with PortfolioPR, a New York based company, for public relation and investor relations services.
PortfolioPR has already begun providingThe Agreement expired in August 2002.On December 15, 2002, the Company entered into a non-exclusive services agreement with RevenueTraction, LLC to identify potential distributors, business opportunities, investment prospects and other financing for the Company and/or any affiliates of the Company. The Agreement came expired in May 2003.
On December 16, 2002, the Company entered into a non-exclusive services agreement with Yitzhak Rosenbaum, to engage in services to assist the Company in approaching prospects for the purpose of obtaining funding for the Company or its affiliates by means of investment, merger, acquisition or sale of asset transactions, as well as for the establishment of business relationships for the marketing of the Company’s products.
20
On February 3, 2003, Marnetics announced the launch of an ISP rating site that utilizes the advanced technology provided by the Prospera™ Expert. The site tests five major Israeli ADSL ISP’s service levels based on five parameters that best describe the overall service and its relative importance to the ADSL users. The site operates automatically, providing information five times daily to the users (current and potential ADSL users). The information is then accumulated and presented on a weekly and monthly basis along with colorful graphics. Marnetics believes its the first of the kind in the ADSL market.
Strategic Partnerships
Following decisions reached at the annual general meeting in November 2002, the Company had resolved to pursue alliances and partnerships with leading companies in the Network arena.
The Marnetics technologies have been developed with the ability to easily integrate and operate alongside other network products. As a result, there were opportunities to establish OEM agreements with developers/suppliers of network products or to sell/license technologies to leading industry players.
The opportunity of strategic cooperation had an important effect on product definition and design. As product rollout continued during Q1 and Q2 of 2003, the efforts to increase market knowledge/feedback and approach potential partners was intensified especially with the assistance of RevenueTraction, LLC. This agreement expired in May 2003.
Current Strategy – Sale of Company; Sale of Marnetics Ltd.; Selling of Marnetics Technology
As a result of the Company halting its day to day activities as of July 1, 2003, and as part of the Company’s operation plan for the year 2004, the Company has been seeking a purchaser for the Company, to sell Marnetics Ltd. and/or sell the assets of the Company, mainly Marnetic’s intellectual property.(See “Item 8B – Significant Changes.”)
In June 2003 the Company engaged in negotiations with a past distributor of Marnetics in Israel, regarding the possible a merger of Marnetics and the distributor and/or possible sale of the intellectual property assets of Marnetics. To date, no agreement has materialized. (See “Item 8B – Significant Changes.”)
In addition, during 2004, the Company has been engaged in on-going discussions with a third party acquirer interested in purchasing a controlling share in the Company. Although negotiations are at an advanced stage, there can be no assurance that the third party will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained. Failure to consummate these discussions may result in the Company taking the initial steps to liquidate the Company, as provided in the Company’s operational plan. (See “Item 8B – Significant Changes.”)
ELECTRICAL BUSINESS
Prior to December 2000, the
Company'sCompany’s sole business was as an electrical and lighting contracting and engineering firm engaged in the installation and maintenance of infrastructure works located in the State of Israel. The Electrical Businesshas beenat that time was characterized by intense competition and pricingpressures over the past several years.pressures. The results of operation of the Electrical Businesshave also beenwere materially and adversely affected bythean economic slowdown and political instability in Israel. As a result and in order to enable the Company to focus on the Network Business, the Company sold the Electrical Business, effective as of March 31, 2001. (See"ITEM- - “Item 8B- SIGNIFICANT CHANGES."– Significant Changes.”)21
C.
ORGANIZATIONAL STRUCTUREOrganizational StructureThe following is a list of the
Company'sCompany’s direct and indirect significant subsidiaries as ofJune 30, 2002:May, 2004:
NAME OF SIGNIFICANT PERCENTAGE OF OWNERSHIP INTEREST SUBSIDIARY/AFFILIATE COUNTRY OF INCORPORATION AND VOTINGName of
Significant
Subsidiary/AffiliateCountry of Incorporation
Percentage of Ownership
Interest and Voting(1)Marnetics, Ltd.
Israel
100%(3)
Marnetics, Inc. (a subsidiary of
Marnetics Ltd.)
(not active)Delaware, USA
100%
Speedwise Technologies Ltd.
(an Israel 13.12%
(an affiliate of Marnetics
Ltd.)(2)Israel
17.1%
14.73% fully diluted basis18(1) On fully diluted basis. (2) The Company holds 450,000 Ordinary Shares of Speedwise Technologies Ltd. Nulan Technologies, Ltd., an Israeli subsidiary of the Company, was transferred to the purchaser of the Electrical Business as of March 31, 2001.
(1)
On fully diluted basis.
(2)
The Company holds 450,000 Ordinary Shares of Speedwise Technologies Ltd (“Speedwise”). Speedwise entered into an agreement to sell all its assets and intellectual property to Orsus Solutions Ltd., an Israeli technology company, in exchange for the payment of cash and shares of Orsus Solutions Ltd. Speedwise ceased operations in year 2003 but still owns the shares in Orsus Solutions Ltd.. (See“Item 7. B. Related Party Transactions”.)
(3)
On December 11, 2002 the Board of Directors resolved to authorize management of Marnetics to structure an Employment Stock Option Plan for the year 2003 and to allocate to employees of Marnetics up to 5 (five) per cent of the issued and outstanding share capital of Marnetics on a fully diluted basis. There was no allocation in year 2003.
D.
PROPERTY, PLANTS AND EQUIPMENT During the year 2000, our offices were located at a leased facility in Moshav Batzra, Israel. The facility consisted of a building of approximately 469 square metersProperty, Plants anda parking lot of approximately 543 square meters. A portion of the building served as the Company's offices and the remaining portion served as a warehouse for storing tools and inventory. The rent expense for the facility throughout the year 2000 was approximately $2,175 per month, plus Israeli value added tax.EquipmentAs of December 20, 2000,
wethe Company’s headquarters were relocatedour headquartersfrom Moshav Batzra to a facility inRa'anana,Ra’anana, Israel, and leased bytheits subsidiary-Marnetics Ltd. The facility consists of approximately 232 square meters. The lease expired on May 30,20022003 and was renewed untilApril 30,December 2003.TheAgreement was reached with the landlord that Marnetics can remain rentexpense forfree at the facility until a replacement tenant iscurrently approximately US $2,436 per month, plus Israeli value added tax.found. Marnetics is just paying the city property tax on the facility.As part of sale of the
Company'sCompany’s electrical operations as described in"Item“Item 8B-– SignificantChanges"Changes”, all rights and obligations of the Company regarding the facility in Batzra were assigned to the purchaser of theCompany'sCompany’s Electrical Business, Idan Millennium Investments and Assets Ltd., as of March 31, 2001.ITEMItem 5.
OPERATIONS AND FINANCIAL REVIEW AND PROSPECTSOperations and Financial Review and ProspectsThe following contains forward-looking statements, which involve risks and uncertainties. Actual events or results may differ materially from those discussed in forward-looking statements as a result of various factors. The following discussion and analysis of financial condition and results of operations should be read along with the accompanying Consolidated Financial Statements for the year ended December 31,
2001. See "ITEM2003. (See“Item 8A- - FINANCIAL INFORMATION"–Financial Information”.) These reports are presented in United States dollars and have been prepared in accordance with US GAAP.22
A.
OPERATING RESULTS OVERVIEWOperating ResultsOverview
Marnetics Broadband Technologies Ltd. (formerly Stav Electrical Systems (1994) Ltd.)
(the "Company"(“the Company or"Stav"Stav”) has been engaged in the development of capacity enhancement and traffic analysis solutions for IP networks through its wholly owned subsidiary Marnetics Ltd. (“Marnetics”) and was engaged in the manufacture, installation and maintenance of electrical and lighting systems, mainly for public institutionsand in the development of Internet performance enhancement solutions through its wholly owned subsidiary Marnetics Ltd.The
Company'sCompany’s operations during20012002 and first half of year 2003 consisted oftwo lines of business: (1)the core business of developing and marketingbroadband Internet fortification solutions which shifted to the development and marketing ofnetwork capacity enhancement and network information analysis solutions for IP networks or the Network Business, which is handled through our wholly-owned subsidiary, Marnetics Ltd.,During 2003 the research development and(2) historicalmarketing activities of our core business were halted and the Company is now engaged in efforts to sell a controlling share in the Company, the sale ofelectricalits subsidiary Marnetics Ltd. and/or of Marnetic’s intellectual property, as well as continuing the legal proceedings initiated by the Company, its defense in proceedings initiated against it andlighting contracting and engineering business orother administrative activities essential to theElectrical Business, which was sold during 2001Company’s operations. (See“Item 8B – Significant Changes.”)On June 1, 2000, a share exchange agreement was signed between the Company and Marnetics Ltd. The agreement was consummated after final approval of the
Company'sCompany’s shareholders on December 31, 2000. The fair value of Stav shares, US$ 11,314,280 was determined on the basis of the average market price of its outstanding shares US$ 8.00. Goodwill in the amount of $11,309,000 was recorded accordingly.The
acquisition ofmerger between Marneticsbyand the Company was accounted for as a reverseacquisition.merger. As the shareholders of Marnetics (as a group) received the largest ownership interest in the Company, Marnetics was determined to be the"accounting acquirer"“accounting acquirer” in the reverse acquisition. As a19result, the historical financial statements of the Company (prior to December 31, 2000) were replaced with the historical financial statements of Marnetics. The statement of operations for 2001 includes the operations of the Company and of Marnetics. Thestatements of operations for 2000 and 1999 includeonlytheresults ofoperations of Marnetics. TheDecember 31, 2001 andDecember 31, 2000 balance sheet includes theconsolidatedaccounts of the Company and Marnetics. The fair value of Stav shares, US$ 11,314,280 was determined on the basis of the average market price of its outstanding shares US$ 8.00 per share. Goodwill in the amount of $11,309,000 was recorded accordingly.Effective March 2001, the Company sold off the electrical business and wrote-off goodwill in the amount of $2 million as discontinued business. Further, during 2001, in view of the markets downturn, the Company assessed the value and future benefit of its enterprise level goodwill pursuant to Accounting Principles Board Opinion No. 17, “Intangible Assets” (“APB 17”). The result of the assessment was a full write-off of the goodwill in the amount of $9,309,000
Marnetics has a limited operating history and is subject to risks, expenses and uncertainties frequently encountered by companies in the new and rapidly evolving markets for network capacity enhancement products and services. The Company has ceased its business activities since the middle of June 2003 and is seeking a purchaser for a controlling share in the Company and/or for the subsidiary Marnetics Ltd. and/or for Marnetics’s intellectual property. The inability to accomplish one or more of these goals would have a material adverse effect on the Company. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty and these adjustments may be material.
During 2000, Marnetics raised US$ 7.04 million from new investors and recruited additional employees. During 2001, Marnetics continued to increase its research and development activities and shifted its core business from developing and marketing Internet performance enhancement solutions to the development and marketing of IP network, capacity and analysis solutions.
In May 2002, Marnetics submitted an application to obtain research and development grant in the sum of $230,000 from the Office of the Chief Scientist, of the Ministry of Industry and Trade, of the State of Israel (“OCS”) which application was subsequently approved in November 2002. To date Marnetics has received a
limited operating historygrant of $220,000. The grant is based on research and development expenses that Marnetics had actually expensed until December 31, 2003. There can be no certainty that the remaining funding will be received by Marnetics.23
As of April 26, 2003, the Company decided to lay off the majority of the employees of the Company and its wholly-owned subsidiary, Marnetics Ltd. in the areas of marketing, sales and research and development. The Company maintained the services of certain of its officers in order to implement its operational plan, which reflected the reduction of the company’s activities in the areas of research and development, and marketing and sales
At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company.(See “Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company has
sustained losses sincebeen in on-going serious discussions throughout the second quarter of year 2004 with a with a third party acquirer interested in purchasing a controlling share in the Company.(See “Item 8B – Significant Changes.”) There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its
inception. Marnetics anticipates that bothordinary shares, certain information regarding thelosses and negative operating cash flowCompany would no longer be available nor would it continue to be in its current form. Nevertheless, if registration is terminated, the Company will continue toincrease duringbe a public company under theforeseeable future until Marnetics develops a customer base that will generate sufficient revenuesIsraeli Companies Law, and as such would still be required tofund operating expenses. Sinceprepare annual financial statements, have External Directors serving on itsinception in June 1998, through December 31, 2001, Marnetics has incurred cumulative losses of $21,312,000Board andcumulative negative operating cash flows of $5,353,000. During 2001, in view ofAudit Committee, and all other requirements as detailed under themarkets downstream, the Company assessed the value and future benefit of its enterprise level goodwill pursuant to Accounting Principles Board Opinion No. 17, "Intangible Assets" ("APB 17"). The result of the assessment was a full write-off of the goodwill in the amount of $9,309,000. On June 10,Company’s Law regarding public companies.Effective March 2001 the Company
executed an agreement, effective March 31, 2001, to sell, it's Electrical Business, including certain related liabilities,sold to Idan Millenium Investments and AssetsLtd, wholly-owned byLtd. (“IDAN’), a company under theCompany'scontrol of Dov Strikovsky, a major shareholder and formerchief executive officerPresident, Chairman andcurrent major stockholder, Dov Strikovsky. Mr. Strikovsky was the sole bidder in a public request for proposals, which was announced on May 15, 2001 and ended on May 30, 2001. The Board of Directors considered the purchase offer and authorized the Company's acceptanceCEO of thePurchaser's bid. The sale was forCompany, all the fixed assets, inventories, other assets and liabilities and related goodwill, in the amount of an an appraised value of $2,000,000, relating to the electrical operations, for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum withIdan Millenium Investments and Assets LtdIDAN to change the terms of payments to such that the first 11installmentsinstallment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000. The Company, considering the collectibility probability, decided to establish an allowance on the amount not yet collected.AsDuring year 2002 $71,000 was repaid on the account ofJuly,the sale consideration. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him. (See“Item 7B – Related Party Transactions.”)In prior years the Company granted loans to Mr. Strikovsky in the amount of $1,228,000. The loan was linked to the Israeli CPI and bore interest of 2% per annum and was repayable in eight annual installments each comprised of 1/8 of the principal and the accrued interest thereon commencing December 2000. At December 31, 2001 the Company reassessed the collectibility of the loan in accordance with provisions of SFAS No. 114 “Accounting by Creditors for Impairment of a Loan”, and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. Income from impaired loan will be recorded using the cash method. During year 2002 $142,000 was repaid on the account of the loan. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him.
To secure his obligations under the various agreements Mr. Strikovsky has collateralized 300,000 shares that he owns of the Company. No other payments were made by Mr. Strikovsky subsequent to December 31, 2002. (See“Item 7B – Related Party Transactions – Indemnification by Significant Shareholder.”)
On May 9, 2001 an agreement (the “Bank Agreement”) was signed between the Company and Bank Hapoalim, Ltd. (the “Bank”) with respect to the Company’s debt to the Bank in the amount of $3,127,000 (the “Debt”). In accordance with the Bank Agreement, the Bank has agreed to release the Company from its obligation to repay the Debt and to cancel the floating charge and liens registered in favor of the Bank on properties of the Company provided that, by May 31, 2001 the Company shall pay $954,000 to the Bank on account of the Debt (the “Repaid Amount”) and in addition the Company shall have assigned to the Bank all its rights with respect to the debt of the municipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaid amount.
24
In addition, the Company has provided the Bank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of the Municipality of Hod Hasharon, which has been assigned to the Bank (Note 10b). To date the Municipality of Hod Hasharon has not made any re-payment on account of the debt, and therefore the guarantee has not decreased. According to the terms of the Bank Agreement, following November 30, 2002, the Bank is entitled to exercise the outstanding amount of the guarantee, and since the guarantee has not decreased, the Company decided to establish an allowance for the guarantee in full.
The Company has informed the Bank that, following prolonged negotiations, the Municipality of Hod Hasharon stated its position to the effect that it is not obligated towards the Company and retains all rights in the matter, and that further more has, in its opinion, claims against the Company amounting to some NIS 4 Million (approximately $900,000). In light of the position taken by counsel to the municipality, the Company informed the Bank that bringing legal action is unavoidable, and that in the opinion of the Company remains the only course of action that may result in the recovery of the funds due to it.
In light of the current relationship between the Company and Mr. Strikovsky (See“Item 8A - Legal Proceedings”), the Company was of the opinion that the suit brought against the Municipality of Hod Hasharon should be based upon the letter by the head of the Municipality’s Engineering Department approving the assignment of the debt to the Bank and confirming the debt towards the Company. The Company believed that it would be proper that the Bank join the Company in bringing such suit and share in its expense. The Bank has yet to formally respond to the Company’s suggestion, although it has learned from counsel to the Bank that it is reluctant to join the suit, but may be willing to share some of the expenses involved. The Company is of the Opinion that the Bank’s position is detrimental to the Company’s efforts.
On November 20 2003, the Company’s subsidiary, Marnetics Ltd. filed suit against the Municipality of Hod Hasharon and its then head of the Engineering Department in the sum of NIS 10,000,000 (approximately $2.2 million). On March 2004, the Municipality of Hod Hasharon filed a counterclaim for NIS 4.48 million for payment in excess of work and services provided. (See“Item 8A - Legal Proceedings”.)
The setting up of a reserve for the value of the guarantee has had a negative impact on the financial condition of the Company. Failure to collect the total amounts, or part of it, from Idan Millenium Investments and Assets
Ltd. paidLtd, Mr. Dov Strikovsky and thefirst four installments.Municipality of Hod Hasharon can have a negative impact on financial condition the Company and on the negotiations with any potential purchaser or investor.The loss from operation of the discontinued activities in the Electrical Business was $450,000. The loss on the sale of the Electrical Business was $2,278,000.
As of June 30, 2002, Marnetics Ltd. holds 13.12%Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies
Ltd. ("Speedwise"Ltd (“Speedwise”), an Israeli hi-tech company established. In September 2000, Speedwise issued shares to a third party resulting inJuly 1999. Thea decrease in the Company’s holdings to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwisedo not currently impose any obligations on Marnetics. Speedwise is actively seeking additional funds to enable it to continue its operations throughat $60,000 and recorded an impairment charge of $522,000. As at the end of theyear. If such additional fundsyear 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares willnotbeavailable for Speedwise or if a business combination is effected with Speedwise reflecting a lower value for Speedwise thanrecorded in thecarrying amount, some or allyear in which monies are actually received.25
As of April 26, 2003, the Company decided to lay off the majority of the
Company's investment may not be recoverable. Further, the Company executed on March 24, 2002 an anti dilution agreement as a result of a proposed investment by an investor which would significantly dilute the holdingsemployees of the Companyin Speedwise Technologies. The investment did not take place. Speedwise is negotiating new alternativesand those offund raising or business combination that could result, if effected, a significant dilution toits wholly-owned subsidiary, Marneticsholding in Speedwise. Marnetics decided not to participateLtd. in the areas of marketing, sales and research and development The remaining employees are in the area of administration and are being compensated until end of June 2004. It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company.(See “Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company has been in on-going serious discussions throughout the second quarter of year 2004 with a with a third party acquirer interested in purchasing a controlling share in the Company.(See “Item 8B – Significant Changes.”) There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.
The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would no longer be available nor would it continue to be in its current
fund raising made by Speedwise. 20form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving on its Board and Audit Committee, and all other requirements as detailed under the Company’s Law regarding public companies. YEAR ENDED DECEMBER 31,
20012003 COMPARED TO YEAR ENDED DECEMBER 31,20002002 UPDATEOperating Revenues
The Company had
no$4000 in salesin eitherfor theyears endingyear ended December 31,2000 or2003 compared to $19,000 in sales for the year ended December 31,2001. Commercialization of the products started in second quarter of2002.Operating Expenses
Research and Development expenses consisted primarily of salaries and related expenses. Research and Development expenses
increased from $252,000 indecreased to $210,000 for the yearendingended December 31,2000 to $812,000 in2003 from $486,000 for the yearendingended December 31,2001.2002. Theincreasedecrease was primarily due toCompany's expansionCompany’s reduction of its research and developmentactivities.activities and the receipt of a grant from the OCS in the sum of $80,000.Selling and Marketing expenses which consisted mostly of salaries
and rose from $142,000 atdecreased to $174,000 for theend ofyear ended December 31,2000 to $310,000 at2003 from $464,000 for theend ofyear ended December 31,2001,2002, due toinitializationreduction of business development efforts. Travel and promotional expenses decreased as promotional activities were reduced.General and Administrative expenses consisted primarily of salaries and related expenses for administrative and executive staff, fees for professional services, and general office and rent expenses. General and Administrative expenses
increased from $722,000 indecreased to $434,000 for the yearendingended December 31,2000, to $1,128,000 in2003, from $784,000 for the yearendingended December 31,2001.2002. Theincreasedecrease was primarily due to therecruiting and hiringreduction ofadditionalemployees anddue to increaseddecreased professional and consulting fees.Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd (“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in the Company’s holdings to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000. As at the end of the year 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares will be recorded in the year in which monies are actually received.
26
Non-cash compensation expenses totaled $792,000 for the year ended December 31, 2003 and $792,000 the year ended December 31, 2002. Non-cash compensation includes the amortization of unearned employee stock-based compensation and expenses for options granted to a related party. Stock-based compensation expenses are amortized over the vesting schedule of the option, typically four years, using the straight-line approach.
Financial Income
Net financial income (expense) for the year ended December 31, 2003 and the year ended December 31, 2002 was $(101,000) and $32,000, respectively. These items consist of interest earned on bank deposits and gains and losses from a re-measurement of monetary balance sheet items resulting from transactions in non-dollar currencies.
Share in losses of Affiliate
Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd (“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in the Company’s holdings to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000. As at the end of the year 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares will be recorded in the year in which monies are actually received.
Tax
During the year 2002 the Company and Marnetics reached an agreement with the tax authorities regarding tax liability for the years 1998 to 2001. Marnetics Ltd. reached an agreement with the tax authorities up to and including year 2002. The Company
establishedmade a provision forlegal claimsthis liability and for the year 2002. Marnetics Ltd. has not been assessed for income tax purposes since incorporation.Discontinued Operations
On June 10, 2001, the Company executed an agreement, effective March 31, 2001, to sell, it’s Electrical Business, including certain related liabilities, to Idan Millenium Investments and Assets Ltd, wholly-owned by the Company’s former President, Chairman and Chief Executive Officer and current major stockholder, Dov Strikovsky. The company recorded a loss on the sale in the
amountsum of$750,000 to provide$2,278,000. The company recorded the loss from the Electrical Business forits possible legal exposure.the first quarter of 2001 as a discontinued operation resulting in a loss of $450,000.Net Loss
Net loss for the year ended December 31, 2003 and for the year ended December 31, 2002 was $1,767,000 and $3, 021,000, respectively. Net loss per share was $(0.24) and $(0.41) respectively.
27
YEAR ENDED DECEMBER 31, 2002 COMPARED TO YEAR ENDED DECEMBER 31, 2001 UPDATE
Operating Revenues
Commercialization of the products started in third quarter of 2002. The Company had $19,000 sales for the year ended December 31, 2002, comprised of $9,000 from the Speedwise OEM Agreement, and $6,000 from selling Prospera products, and $4,000 from consulting services. The Company had no sales for the year ended December 31, 2001.
Operating Expenses
Research and Development expenses consisted primarily of salaries and related expenses. Research and Development expenses decreased to $486,000 for the year ended December 31, 2002 from $812,000 for the year ended December 31, 2001. The decrease was primarily due to Company’s reduction of its research and development activities and the receipt of a grant from the OCS in the sum of $140,000.
Selling and Marketing expenses consisted mostly of salaries and increased to $464,000 for the year ended December 31, 2002 from $310,000 for the year ended December 31, 2001, due to initialization of business development efforts. Travel and promotional expenses increased as products were ready for sale.
General and Administrative expenses consisted primarily of salaries and related expenses for administrative and executive staff, fees for professional services, and general office and rent expenses. General and Administrative expenses decreased to $784,000 for the year ended December 31, 2002, from $1,128,000 for the year ended December 31, 2001. The decrease was primarily due to the reduction of employees and decreased professional and consulting fees.
The Company and Mr. Strikovsky were named as a defendant in a claim for specific performance of an agreement
allegedlyentered into by the Company and the plaintiff, Ananda Capital Partners, Inc., in April 1999 (the “Agreement”) as well as damages as a result of a breach ofthis allegedthe agreement. On July 2, 2001, due to the fact that no defense and/or reply were provided by the Company, judgment was entered against the Company in the amount of $725,000. On February 7, 2002 the Company filed a motion to vacate the judgment and on February 27, 2002 the court rejected the motion. The Companyis in the process of filingfiled an appeal on the courtdecision. See "ITEMdecision which was accepted by the Supreme Court of the state New York with instructions to allow evidentiary hearing that is now in process. The plaintiff proposed to settle the suit for $250,000 but the Company rejected the proposal. In 2001 the Company has established an allowance in the amount of $750,000 to provide for its possible exposure. Based on the new developments the Company decreased the allowance by $500,000 to $250,000 which was its current estimate of the probable exposure. (See“Item 8A- LEGAL PROCEEDINGS".(1) – Financial Information -Legal Proceedings.”)On June 1, 2000, a share exchange agreement was signed between the Company and Marnetics Ltd. The fair value of Stav shares, US$ 11,314,280 was determined on the basis of the average market price of its outstanding shares at US$ 8.00 per share. Goodwill in the amount of $11,309,000 was recorded accordingly.
DuringEffective March 2001, sold off the electrical business and wrote-off goodwill in the amount of $2 million as discontinued business. Further, during 2001, in view of the markets downstream, the Company assessed the value and future benefit of its enterprise level goodwill pursuant to Accounting Principles Board Opinion No. 17,"Intangible Assets" ("“Intangible Assets” (“APB17"17”).See "ITEM(See“Item 18FINANCIAL STATEMENTS - NOTE 1 & 3B".Financial Statements.) The result of the assessment was a full write-off of the goodwill in the amount of $9,309,000.AtAs at December 31, 2001 the Company reassessed the collectibility of the loan given to Mr. Dov Strikovsky and his affiliated companies, a major shareholder and former President, Chairman and former CEO of the Company, and his affiliated companies in the amount of $1,228,000 in accordance with provisions of SFAS No. 114
"Accounting“Accounting by Creditors for Impairment of aLoan"Loan��, and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. Income from impaired loan will be recorded using the cash method.See "ITEMDuring 2002, $266,000 was repaid to the Company. (See“Item 7B -RELATED PARTY TRANSACTIONSRelated Party Transactions -LOANS TO SIGNIFICANT SHAREHOLDER AND FORMER DIRECTOR AND CEO"Loans to Significant Shareholder and Former Director and CEO ”.)28
Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd (“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in the Company’s holdings to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000.
The Company has provided Bank Hapoalim with a guarantee of up to $716,000, which amount decreases in the ratio of NIS 1:2 for amounts paid on account of the outstanding debt of the Municipality of Hod Hasharon, which had been assigned to the Bank (Note 3b). To date Hod-Hasharon has not made any re-payment on account of the debt, and therefore the guarantee has not decreased. According to the terms of the Bank Agreement, following November 30, 2002, the Bank is entitled to exercise the outstanding amount of the guarantee, and since the guarantee has not decreased, the Company established an allowance for the guarantee in full.
Non-cash
Compensationcompensation expenses totaled $792,000 for the year ended December 31, 2002 compared to $805,000 for the year ended December 31, 2001. Non-cash compensation includes the amortization of unearned employee stock-based compensation and expenses for options granted to a related party. Stock-based compensation expenses are amortized over the vesting schedule of the option, typically four years, using the straight-line approach.During the year ending December 31, 2001, Company recorded an aggregate unearned stock-based compensation of $60,000. Stock-based compensation included in operating expenses totaled 21$805,000 in the year ending December 31, 2001 compared to $2,408,000 in the year ending December 31, 2000.Financial Income
Net financial income
infor the yearendingended December 31,20002002 and for the yearendingended December 31, 2001 was$167,000$32,000 and $175,000, respectively. These items consist of interest earned on bank deposits and gains and losses from a re-measurement of monetary balance sheet items resulting from transactions in non-dollar currencies.Share in losses of Affiliate
Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd
("Speedwise"(“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in theCompany'sCompany’s holdingsin Speedwiseto 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to15%14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000.Tax
During the year
ending December 31, 20002002 the Companyfollowedand Marnetics reached an agreement with theequity methodtax authorities regarding tax liability for the years 1998 to 2001. The Company made a provision for this liability andshared in the losses of the affiliate in the amount of $639,000. Effective January 1, 2001, the investment is carried at cost, and therefore, the Company does not share in any losses of the affiliate infor the yearending December 31, 2001.2002.Discontinued Operations
On June 10, 2001, the Company executed an agreement, effective March 31, 2001, to sell,
it'sit’s Electrical Business, including certain related liabilities, to Idan Millenium Investments and Assets Ltd, wholly-owned by theCompany'sCompany’s formerchief executive officerPresident, Chairman and Chief Executive Officer and current major stockholder, Dov Strikovsky. The company recorded a loss on the sale in the sum of $2,278,000. The company recorded the loss from the Electrical Business for the first quarter of 2001 as a discontinued operation resulting in a loss of $450,000.Net Loss
Net loss
in the year ending December 31, 2000 and the year ending December 31, 2001 was $3,996,000 and $16,895,000, respectively. YEAR ENDED DECEMBER 31, 2000 COMPARED TO YEAR ENDED DECEMBER 31, 1999 Operating Revenues As Marnetics' products were still in the development phase and had not begun commercialization, Marnetics had no sales in either the years ending December 31, 1999 or December 31, 2000. Operating Expenses Research and Development expenses consisted primarily of salaries and related expenses and sub-contractor expenses. Research and Development expenses increased from $33,000 in the year ending December 31, 1999, to $252,000 in the year ending December 31, 2000. The increase was primarily due to Marnetics resumption of its research and development activities after Marnetics obtained equity financing in the first quarter of 2000. Selling and Marketing expenses consisted mostly of salaries and rose to $142,000 at the end of December 31, 2000, due to initialization of business development efforts. General and Administrative expenses consisted primarily of salaries and related expensesforadministrative and executive staff, fees for professional services, and general office and rent expenses. General and Administrative expenses increased from $44,000 in the year ending December 31, 1999, to $722,000 in the year ending December 31, 2000. The increase was primarily due 22to the recruiting and hiring of additional employees and due to increased professional and consulting fees. Non-cash Compensation includes the amortization of unearned employee stock-based compensation and expenses for options granted to a related party. Stock-based compensation expenses are amortized over the vesting schedule of the option, typically four years, using the straight-line approach. During the year ending December 31, 2000, Marnetics recorded an aggregate unearned stock-based compensation of $1,836,000. Stock-based compensation included in operating expenses totaled $2,408,000 in the year ending December 31, 2000, compared to no such expenses inthe year ended December 31,1999. Financial Income Net financial income in2002 and for the yearendingended December 31,19992001 was $3,021,000 andthe year ending December 31, 2000 was $9,000 and $167,000, respectively. These items consist of interest earned on bank deposits and gains and losses from a re-measurement of monetary balance sheet items resulting from transactions in non-dollar currencies. Share in Losses of Affiliates Until September 2000, the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd ("Speedwise"). In September 2000, Speedwise issued shares to a third party resulting in a decrease in the Company's holdings in Speedwise to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 15%. During the years ending December 31, 2000 and December 31, 1999 the Company followed the equity method and shared in the losses of the affiliate in the amount of $639,000 and $21,000$16,895,000, respectively. NetLoss Netlossin the year ending December 31, 1999per share was $(0.41) andthe year ending December 31, 2000 was $117,000$(2.51) respectively.29
B. Liquidity and
$3,996,000, respectively. B. LIQUIDITY AND CAPITAL RESOURCESCapital ResourcesTo date, the Company has funded its operations through equity investments and bank credit lines. During the year 2000 Marnetics issued shares in consideration of
$7,298,000.$7,297,000. On December 31,2001,2003, the Company had$2.4 million$234,000 of cash and cash equivalents compared to$6.5 million at$957,000 on December 31,2000.2002. The decrease of $723,000 ismostly due toprimarily a result of cash being used to finance theoperationoperational activitiesinof theamount of $4.1 million.Company as well as to pay for legal expenses. As of December 31,2001,2003, the Company had nosignificantbank credit lines and is financing itsactivity based onlyactivities from available cash.As from the second quarter of the year 2004, in accordance with the Company’s operational plan for the year 2004(See Item 8B – Significant Changes), Company began selling off some of its office equipment and computers and has generated additional cash from these sales.
At the annual shareholders meeting on
equity resources.March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company.(See “Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. TheCompany'sCompany has been in on-going serious discussions throughout the second quarter of year 2004 with a with a third party acquirer interested in purchasing a controlling share in the Company. (See“Item 8B – Significant Changes.”) There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.The Company’s capital requirements have been reduced in accordance with the diminished activities of the Company.
The cash balances and
will continueequivalents as of December 31, 2003 are sufficient to meet the budgeted operating expenses for year 2004, but would besignificantinsufficient to cover all of the liabilities, namely the provisions for the bank guarantee andits cash requirements could exceed cash flow from operations. As a result,legal claims as presented in theCompany may become dependent on bank credit lines and salesfinancial statements as ofits securities to fund its development and activities.December 31, 2003(See –Item 18 Financial Statements).Net cash used in operating activities in
1999, 2000,2003, 2002, and 2001 was$124,000, $872,000,$715,000, $1,391,000, and $4,120,000, respectively. Since the Company has not generatedanymeaningful revenues to date, itmust useused its working capital to fund its research and development, marketing, sales general and administrative expenses. At present the net cash is being used to fund administrative expenses.The Company had as of December 31,
20012003 a negative working capital of$1,596,000,$859,000, compared to a positive working capital of$4,925,000$3,000 as of December 31,2000.2002.The
Company'sCompany’s cash and cash equivalents are generally held in short term US dollar bank deposits.23DuringTotal shareholder equity (deficiency) on December 31, 2003 was $(767,000) and $208,000 on December 31, 2002.
C. Recently Issued Accounting Standards
In January 2003, the
year 2001FASB issued Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities, an interpretation of ARB 51”. The primary objectives of this interpretation are to provide guidance on theCompany entered intoidentification of entities for which control is achieved through means other than through voting rights (“variable interest entities”) and how to determine when and which business enterprise (the “primary beneficiary”) should consolidate the variable interest entity. This new model for consolidation applies to anagreemententity in which either (i) the equity investors (if any) do not have a controlling financial interest; or (ii) the equity investment at risk is insufficient to finance that entity’s activities without receiving additional subordinated financial support from other parties. In addition, FIN 46 requires that the primary beneficiary, as well as all other enterprises withBank Hapoalim Ltda significant variable interest inrespecta variable interest entity, make additional disclosures. Certain disclosure requirements of FIN 46 were effective for financial statements issued after January 31, 2003. In December 2003, the FASB issued FIN 46 (revised December 2003), “Consolidation of Variable Interest Entities” (“FIN 46-R”) to address certain FIN 46 implementation issues. The effective dates and impact of FIN 46 and FIN 46-R are as follows: (i) Special-purpose entities (“SPEs”) created prior to February 1, 2003. The company must apply either theCompany's short-term credit borrowed fromprovisions of FIN 46 or early adopt theBank inprovisions of FIN 46-R at theamount of $3,127,000. In accordance with the Bank agreement, the Bank has agreed to release the Company from its obligation and to cancel the floating charge and liens registered in favorend of theBank on propertiesfirst interim or annual reporting period ending after December 15, 2003. (ii) Non-SPEs created prior to February 1, 2003. The company is required to adopt FIN 46-R at the end of theCompany providedfirst interim or annual reporting period ending after March 15, 2004. (iii) All entities, regardless of whether an SPE, thatthe Company shall pay $954,000were created subsequent tothe Bank on accountJanuary 31, 2003. The provisions of FIN 46 were applicable for variable interests in entities obtained after January 31, 2003. The adoption of theDebtprovisions applicable to SPEs andin addition the Company shall have assigned to the Bankallits rights with respect to the debt of the municipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaid amount. See "ITEM 7B - ASSIGNMENT OF BANK DEBT". Failure to collect the total amounts, or part of it, from Idan Millenium Investments and Assets Ltd., Mr. Dov Strikovsky and the municipality of Hod Hasharon couldother variable interests obtained after January 31, 2003 did not have anegativematerial impact on thecompany future cash flowcompany’s consolidated financial position, consolidated results of operations, or liquidity.30
In April 2003, the FASB issued SFAS No. 149, “Amendment of SFAS No. 133 on Derivative Instruments and
liquidity. See "ITEM 3D - RISK FACTORS - RISKS RELATING TO COLLECTION OF DEBT BY THE COMPANY". C. RESEARCH AND DEVELOPMENT AsHedging Activities.” SFAS No. 149 amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. In particular, this Statement clarifies under what circumstances a contract with an initial net investment meets theCompany ischaracteristic of a derivative. It also clarifies when a derivative contains a financing component that warrants special reporting in thestagestatement ofcommercializationcash flows. SFAS No. 149 is generally effective for contracts entered into or modified after June 30, 2003 and did not have a material impact on the Company’s financial statements.In May 2003, the FASB issued SFAS No. 150, “Accounting for Certain Financial Instruments with Characteristics of
products developedboth Liabilities and Equity.” SFAS No. 150 establishes standards for how a company classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify certain financial instruments as a liability (or as an asset inyears 2001some circumstances). SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and2002, it anticipates that a significant amountotherwise is effective at the beginning ofits operating expenses will be expended intheareafirst interim period beginning after June 15, 2003. The adoption ofresearchSFAS No. 150 did not have an impact on the Company’s financial statements.D. Research and
development.DevelopmentResearch and Development expenses
increased from $33,000 indecreased to $210,000 for the yearendingended December 31,1999, to $252,000 in2003 from $486,000 for the yearendingended December 31,2000, to $812,000 in the year ending December 31, 2001.2002. Theincreasedecrease was primarily due to Marneticsexpansionreduction of its research and development activitieshiring additional staff,andpurchasereducing staff. As ofequipment and software. The main targetsJune 2003, the Vice President oftheR&D, Nr. Hanoch Newman, was no longer employed by Marnetics. Present research and developmentdepartment for the year 2002 are to commercialize new versions of the Prospera(TM) platform and to develop additional network related solutions.efforts have ceased.In May 2002, Marnetics Ltd. submitted to the OCS a request to obtain research and development funding in the sum of
$250,000$230,000 from the Office of the Chief Scientist, of the Ministry of Industryofand Trade, of the State of Israel("OCS"(“OCS”) for development of products for theProspera(TM) platform. ThereProspera™ platform which was approved on November 2002. The total amount of grants received during the years ended December 31, 2003 and December 31, 2002 were $80,000 and $140,000 respectively, or a total of $220,000.Marnetics is committed to pay royalties to the Office of the Chief Scientist of the Government of Israel on proceeds from sales of products in which the Chief Scientist has participated by way of grants, up to the amount of 100% of the grants received, in dollar terms plus interest at LIBOR. The royalties are payable at a rate of 3% for the first three years of product sales and 3.5% thereafter. No royalty expenses were paid to the Chief Scientist in 2002 and 2003. The research and development grants are presented in the statements of operations as an offset to research and development costs. The refund of the grant is contingent on future sales and Marnetics has no
certainty thatobligation to refund these grants, if sufficient sales are not generated. Based on theapplication will be approved, and if approved, what conditionsterms established in the agreement with the OCSwill demand of Marnetics Ltd. and if this would be acceptablethe Company may not sell its IP tomanagement. D. TREND INFORMATIONa non-Israeli entity.E. Trend Information
The market for network capacity enhancement solutions is in an early stage of development and its success is not guaranteed. Therefore, we cannot accurately assess the size of the market, the products needed to address the market, the optimal distribution strategy, or the competitive environment that will develop. In order for
usthis area to be successful,ourpotential customers mustrecognize the value of our new approach to bandwidth management solutions, and decide toinvest inthetraffic management of their networks and improving the performance of mission critical applications. The growth of the network capacity enhancement solutions market also depends upon a number of factors, including the availability of inexpensive bandwidth, especially in international markets, and the growth in complexity of WAN and the CapEx of enterprises.RECENTLY ISSUED ACCOUNTING STANDARDS In July 2001, the Financial Accounting Standards Board ("FASB") issued statement of Financial Accounting Standards No. 141 ("SFAS 141"), Business Combinations." SFAS 141 requires the purchase method of accounting for business combinations initiated after June 30, 200131
F. Off-Balance Sheet Arrangements
We do not have any off-balance-sheet arrangements.
Item 6. Directors, Senior Managers and
eliminates the pooling-of-interests method. The Company does not believe that the adoption of SFAS 141 will have a significant impact on its financial statements. In July 2001, the FASB issued Statement of Financial Accounting Standards No. 142 ("SFAS 142"), GoodwillEmployeesA. Directors and
Other Intangible Assets", which is effective January 1, 2002. SFAS 142 requires, among other things, the discontinuance of goodwill amortization. In addition, the standard includes provisions for the reclassification of certain existing recognized intangibles as goodwill, reassessment of the useful lives of existing recognized intangibles, reclassification of certain intangibles out of previously reported goodwill and the identification of reporting units for transitional goodwill 24impairment test six months from the date of adoption. The Company does not believe that the adoption of SFAS 142 will have a significant impact on its financial statements. In June 2001, the FASB issued Statement of Financial Accounting Standards No. 143, "Accounting for Asset Retirement Obligations" ("FAS 143"), which is effective for years beginning after June 15, 2002, which will be the Company's fiscal year 2003. FAS 143 addresses legal obligations associated with the retirement of tangible long-lived assets that result from the acquisition, construction, development or normal operation of a long-lived asset. The standard requires that the fair value of a liability for an asset retirement obligation be recognized in the period in which it is incurred if a reasonable estimate of fair value can be made. Any associated asset retirement costs are to be capitalized as part of the carrying amount of the long-lived asset and expensed over the life of the asset. The Company does not believe that the adoption of SFAS 143 will have a significant impact on its financial statements. In August 2001, the FASB issued Statement of Financial Accounting Standards No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets (FAS 144), which addresses financial accounting and reporting for the impairment or disposal of long-lived assets and supersedes SFAS No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of, and the accounting and reporting provisions of APB Opinion No. 30, Reporting the Results of Operations, for a disposal of a segment of a business. FAS 144 is effective for fiscal years beginning after December 15, 2001, with earlier application encouraged. The Company has not yet determined what the effect of FAS 144 will be on the earnings and financial position of the Company. ITEM 6. DIRECTORS, SENIOR MANAGERS AND EMPLOYEES A. DIRECTORS AND SENIOR MANAGEMENTSenior ManagementThe following is a list of our directors and senior management, as of
June 30, 2002,the end of March 31, 2004 followed by a description of their business background:NAME AGE POSITION* ---- --- --------- Moshe Kessner...................52 Director Pekka Roine.....................57 Director Moshe Rubin.....................50 External Director Yossi Shelly....................44
Name
Age
Position
Menachem Reinschmidt
44
Chairman of the Board*
Moshe Rubin
50
External Director
Dr. Ora Setter
51
External Director
George Balot
62
Director and Acting Chief Financial Officer*
David Sheetrit
41
Director and Acting Chief Executive Officer*
*Mr. Menachem
Reinschmidt............42 Director, CEO Joshua Piasetzky................54 Director David Sheetrit..................40 Chief Operating Officer Ilan Hadar......................37 Chief Financial Officer Hanoch Newman...................37 Vice President - Research and Development Todd Kedes......................36 Regional Sales and Marketing Director Ofer Chermesh...................36 Regional Sales and Marketing Director * Jacob Ben-Gur,Reinschmidt became Chairman of the Board of the Companyannounced his resignationon November 2002. Mr. David Sheetrit, who had been the Chief Operating Officer of the Company from January 2001, became thepositionActing Chief Executive Officer of the Company effective June 22, 2003. Mr. Ilan Hadar was the Chief Financial Officer of the Company up until July 26, 2003. As from June 15, 2003 Mr. George Balot shared the duties of CFO with Mr. Hadar until Mr. Hadar’s departure, at which time Mr. Balot was Acting Chief Financial Officer of the Company on a part-time basis.Menachem Reinschmidt, Chairman of the Board of
Director at a Company board meeting on January 31, 2002, due to his heavy work load and other duties other than as Chairman and Director of the Company. He officially resigned on June 5, 2002. Since the resignation of Mr. Ben-Gur,the Companydoes not have a permanent Chairman of the Board. MOSHE KESSNER,since November 2002 and Director of the Company sinceDecember 2001, and a Director of Marnetics Ltd. since July 2002.2001; Mr.Kessner is VP Technology of Kardan Communication Ltd. a company investing in the area of telecommunications. Prior to joining Kardan Communications, Mr. Kessner was Associate Vice President Business Development, ECI Telecom Ltd. (NASDAQ: ECIL), a telecom equipment vendor, which holds a 12.84% stake in the Company. In this capacity, he was involved in the investment strategy and investment companies of ECI Telecom. Prior to joining ECI in 1999, Mr. Kessner was Vice President Technology and Business Development of Tadiran Telecommunications Ltd. He served as Lieutenant Colonel in the Israel Defense Forces as Chief Research Engineer in the Signal Corp, involved in developing the computer security standards and 25several strategic and tactical communication systems. He learned the courses needed for a M.Sc. in Computer Science and holds a B.Sc. in Electrical Engineering. PEKKA ROINE, Director of the Company and Director of Marnetics Ltd. since July 2002, joined Prime Technology Ventures in 1999 as a General Partner. PekkaReinschmidt hasserved as chairman or director of numerous technology companies, including Solid, VistaCom, Metorex, AudioSoft, Buscom, Idesco, and Tunturi. He is also a founder of the Health On the Net foundation. Previously, Pekka held senior executive positions at Digital Equipment Corporation for 22 years including General Manager Finland, and he was the corporate director worldwide for the Travel and Transportation Industry. He holds an M.Sc and a B.Sc in Physics from the University of Helsinki in Finland. He is also a graduate of the Stanford Executive Program. MOSHE RUBIN, External Director of the Company since 1999, currently serves as a Financing Consultant for the Jerusalem branch of Pama Car Financing. For 15 years, he operated the Dihatsu car dealership, which he opened in Herzliya. He has also sold used cars, car parts and accessories, as well as worked in car maintenance. YOSSI SHELLY, External Director of the Company since 1999, is Managing Director of S. Alexander Ltd. Investment & Consulting firm, based in Beer-Sheva, Israel. During Mr. Shelly's career, he has served on many boards of directors of corporations and organizations. For nearly a decade, he held various posts within the Municipality of Beer-Sheva as well as being Chairman, and is currently acting COB of the Israeli Postal Authority. Prior to his career in management and consulting, Mr. Shelly served in the Israel Defense Forces for 17 years, dedicating most of his service as the commander of the Computerized Recruitment Center and concluding his service as a Personnel Officer in the Armored Corps. He retired as a Major. He holds a B.Sc. in Industrial Engineering and Management and is currently studying for a degree in law. MENACHEM REINSCHMIDT, Director of the Company since 2001,been Director of Marnetics Ltd., and Director of Marnetics, Inc,is currently Chief Executive Officersince the establishment ofthe Company and currently oversees all technology development activities of the Company.both entities. Mr. Reinschmidt established Marnetics in 1998 and was the first Chief Executive Officer of Marnetics.OneBeing one of the leading data communication experts in Israel, Mr. Reinschmidt has1719 years of experience in the most advanced fields of computer networks, including design, analysis, integration and development. His expertise incorporates advanced networking topics, including frame relay, TCP/IP, Internet architecture, ATM, Local Area Networks, routers and switches, voice-over IP, etc. Prior to founding Marnetics, from 1993 to 1997 Mr. Reinschmidt was President of ATLan, a software development company located in Tel Aviv. He is a lecturer and the author of the Hebrew bestsellerLocal Area Networks for PC and Compatibles.JOSHUA PIASETZKY,Moshe Rubin, External Director of the Company since
20011999, currently serves as a Financing Consultant for the Jerusalem branch of Pama Car Financing. For 15 years, he operated the Dihatsu car dealership, which he opened in Herzliya. He has also been involved in the businesses of car parts, accessories, and car maintenance.Dr. Ora Setter, External Director of the Company since November 2002, currently serves also as External Director on the board of directors of Israeli Ligtharege and Supply Ltd. of Ravad Ltd., two publicly traded companies. Dr. Setter has 20 years of experience in performing consulting to a variety of large enterprises in Israel including the major industrial companies and as well as political parties. Dr. Setter established several start-up companies in the area of knowledge management and e-learning. She is an active lecturer in Israel and at international conferences. Dr. Setter has been a lecturer for 10 years at the Business School of Management at Tel Aviv University. Dr. Setter received her doctorate of business from the Business School of Management at Tel Aviv University.
George Balot, Director of the Company since December 2002 and Director of Marnetics Ltd.
since July 2002, is Senior Vice President, member of the Audit Committee of the Company until June 2003, and Acting ChiefTechnicalFinancial Officer effective as ofECI Telecom Ltd. (NASDAQ: ECIL),June 15, 2003. Mr. George Balot has extensive experience in the financial management of medium and large corporations in addition to non-profit organizations in the USA and Israel. Before coming to Israel in 1978, Mr. Balot, atelecom equipment vendor, whichCertified Public Accountant (USA) was a manager with KPMG in NY, USA. In Israel Mr. Balot has held positions as CFO at large high tech companies, a large non-profit educational institution with branches located located throughout the entire country, and also as an independent financial consultant to high tech companies and others. Mr. Balot holds a12.84% stake in the Company. He is also a director in several of the subsidiaries of ECI Telecom Ltd. and co-founder of AxONLink. Joshua has been one of the key contributors to the growth and success of ECI Telecom - from annual sales of about 2M$ when he joined the company in 1975, to over 1B$ at present. He conceived several of ECI Telecom's most successful products. Joshua has actively participated in several ITU and ETSI Committees. He is also one of the founders and the chairman of the Broadband MAGNET Consortium in Israel, which developed various advanced technologies, in the area of broadband telecommunications. Joshua holds a B.Sc. and M.Sc. degree in Electrical EngineeringB.S. from theTechnion - Israel InstituteRutgers University School ofTechnology - Haifa. He is also an Israel Patent AttorneyBusiness Administration, NJ, USA, where he majored in Accounting.32
David Sheetrit, Director since April 2003, and
a number of United States, European and Israeli patents are registered in his name. In 1982, Joshua won the Rothschild Prize for Innovation and Export. DAVID SHEETRIT, Chief Operating Officer, has served as the Company'sActing Chief Executive Officer since June 22, 2003, has also served as Marnetics Ltd’s President and Director since April 2003. Since January 2001 Mr. Sheetrit was the Chief Operating Officerduring 2001,of the Company andalso served as Director ofMarneticsLtd. Mr.Ltd.Mr. Sheetrit serves also as a Director of Marnetics Inc. Before joining Marnetics, Mr. Sheetrit was Head of the Tel Aviv Branch of the College of Management since 1995. In this capacity he supervised the operations, investments, marketing activities and academic programs of the College, whichiswas comprised of 3,000 students and 200 faculty and staff. Mr. Sheetrit has lectured at various26colleges and academies and served as an independent organizational and business consultant to various organizations and institutions. ILAN HADAR, Chief Financial OfficerHe holds a M.Sc. degree in Industrial Management/Business Administration from Ben Gurion University.Changes in the Composition of the
Company and servesBoard of Directors during the Year 2003On March 4, 2003, the last director designated by Prime Technology Ventures, Mr. Pekka Roine, resigned.
In April 2003 David Sheetrit was appointed as
Director of Marnetics, Inc. Mr. Hadar is responsible for financial management and control and has been with the Company since May 2002. Mr. Hadar possesses ten years of experience in financial management positions with particular expertise in facilitating IPOs, M & A and maintaining shareholder and investor relationships. Additionally, Mr. Hadar has extensive experience in managing the operations of publicly traded enterprises in various operating sectors. Prior to joining the Company, Mr. Hadar served as the CFO of Kardan Technologies Ltd (TASE: KRTC) where he participated in the team that led the IPO of the company. Mr. Hadar was alsoa member of theinvestment activities teamCompany’s Board ofthe company in the e-commerce sector. PriorDirectors.Term and Rights to
Kardan Technologies Mr. Hadar spent several years with Nessuah Zannex Ltd. (TASE: NESU), a leading Israeli full service brokerage house, the Israeli representative of US Bancorp Piper JaffrayDesignate Board MembersThe Amended and
Invesco. Mr. Hadar led the merger between Nessuah and Zannex to form the current structure of that company. Mr. Hadar is a Certified Public Accountant (Israel and USA) and holds M.B.A. in Finance and B.A. in Economics & Accounting from the Hebrew University in Jerusalem. HANOCH NEWMAN, Vice President Research and Development, joined Marnetics in June 2000 as its Vice President of Research and Development. He is a specialist in real-time systems, embedded systems, UNIX/WIN, C++/C communication, and device drivers. He also has vast experience in computer programming, with expertise in TCP/IP and other Internet and Communication protocols, as well as system management. His past experience includes serving as Project Manager at Elron Software NCC from 1999 to 2000, R&D Manager at CT Motion (start-up) from 1998 to 1999, and CTO and MIS in the Israeli Air Force for five years prior thereto. He holds a B.A. in Computer Sciences. TODD KEDES, Regional Sales and Marketing Director. Mr. Kedes joined the Company in May 2002 brings to Marnetics an experienced international business development, marketing and sales background combining over twelve years diverse and progressive responsibilities in hi-tech datacom, telecom, hardware and software products and services, as well as consumer products. Prior to Marnetics, Mr. Kedes worked with Tel Aviv-based Magna Capital, a management-consulting group, where he played key roles in myriad international business development projects for clients such as Tnuva, Rabintex and Shrem Fudim Kellner. Mr. Kedes also provided independent marketing and sales consulting services to Nicosia Cyprus-based Net Planet Earth, a satellite backbone service provider. Prior to Magna Capital and independent management consulting, Mr. Kedes successfully pursued a hi-tech career in Israel, including: most recently, Director of Sales at Harmonic Data Systems for EMEA territories; International Sales Manager at Comverse Network Systems (later known as StarHome); Tegrity, as Regional Sales Manager; and, Executive Marketing Director at Geo Interactive Media Group, Ltd. (later known as Emblaze). Prior to Israel, Mr. Kedes ran his own business, TRGA, as President and Founder, importing and distributing consumer products from China, Italy and France and distributing them to retailers and wholesale distributors in Southern California and Nevada. Mr. Kedes holds an MSBA (Dean's List) - 1993 - and MBA (Dean's List) - - 1992 - in International Marketing, Operations Management and Venture Management from the University of Southern California and a BA - 1988 - in General and Cultural Anthropology from the University of Pennsylvania. Mr. Kedes is business-level proficient in five languages. OFER CHERMESH, Regional Sales and Marketing Director. Mr. Chermesh joined the Company in April 2002, and has over 10 years of experience in Sales, Marketing and Business Development. In his previous position Mr. Chermesh was part of Comverse's Advanced Solution Group (ASG), where he was responsible for selling new Comverse products to existing and potential new customers. Prior to Comverse, Mr. Chermesh was a co-founder of an Israeli-start up company, where he played a key managerial role and was responsible for overall Sales, Marketing & Business Development activities. Mr. Chermesh holds a B.A. in Statistics from Haifa University in Israel. 27TERM AND RIGHTS TO DESIGNATE BOARD MEMBERS TheRestated Articles of Association of the Company provide that each director is elected for a period of one year at theCompany's annual meetingCompany’s Annual Meeting ofshareholdersShareholders and serves until the next such meeting or until his or her successor is duly elected and qualified. Directors may be re-elected annually without limitation.The Company's directors, withWith the exception of the two
external directors representing the publicExternal Directors (who are paid in accordance with the provisions of the Companies Law, as defined below) and of Mr. Menachem Reinschmidt for his services as Active Chairman (under the Services Agreement with Netlogic Ltd., a company wholly owned by Mr. Reinschmidt), the Company’s directors do not currently receive any compensation for their services as directors.Certain shareholders and option-holdersThe Company paid Mr. George Balot an attendance fee ofthe Company the right to nominate and, pursuant to shareholder agreements, have elected their designees$200 forthe Company's Boardhis participation in meetings ofDirectors. Until November 25, 2001, ISG Solid Capital Markets, LLC, the representative of several investors in our initial public offering, had the right, at its option, to designate one director tothe Board of Directors whichdirector will be reasonably acceptablewere held prior to and up until his becoming Acting Chief Financial Officer of the Company.Certain shareholders of the Company have the right to nominate designees for the Company’s Board of Directors. The
Company had agreed to pay such director or non-voting advisor an attendance fee of $1,500 per meetingformer Marnetics Ltd. shareholders, who were issued shares of theBoard of Directors. There currently is no such designated member ofCompany pursuant to a merger agreement between theBoardCompany andaccordingly the right has expired. The formerMarneticsSubsidiary shareholdersLtd. consummated on December 20, 2000, agreed that they will vote in favor of certain nominees for Director of the Company as follows: (i)two nomineesone nominee designated by ECITelecommunicationsTelecom Ltd.,(“ECI”) in the event that ECI holds 12.5% of the issued and outstanding share capital of the Company, or two nominees in the event that ECI holds 25% of the issued and outstanding share capital of the Company, (ii) one nominee designated by STI Ventures Investments No. 2 B.V.and(“STI”), as long as STI holds not less than 5% of the outstanding share capital of the Company, as well as STI can appoint one member as an observer to the Board of Directors of the Company, (iii) one nominee designated collectively by Prime Technology Ventures NV, Docor International BV and Ronchal InvestmentsNV.NV, as long as the Docor Group holds no less than 5% of the outstanding share capital of the Company, and (iv) one nominee designated by Linkware Ltd. (a company under the control of Mr. Reinschmidt) as based on an agreement between the shareholders. To date, STIVentures Investments No. 2 B.V. hasand ECI have notyetdesignated a nominee for theCompany'sCompany’s board andECI has onlythe last director designatedone director nominee. ALTERNATE DIRECTORSby Prime Technology Ventures, Mr. Pekka Roine, resigned on March 4, 2003.Alternate Directors
The Articles of Association of the Company provide that any director may, by written notice to the Company, appoint another director or any other person to serve as an alternate director, and may cancel such appointment. An alternate director has the number of votes equivalent to the number of directors who appointed him. The term of appointment of an alternate director may be for one meeting of the Board of Directors or for a specified period.
EXTERNAL DIRECTORS33
External Directors
Under the Israel Companies Law (the
"COMPANIES LAW"“Companies Law”), public companies are required to elect two external directors who must meet specified standards of independence. Companies that are registered under the laws of Israel and whose shares are listed for trading on a stock exchangeexternaloutside of Israel, such as the Company, are defined as public companies and under such definition are subject to the requirement of electing two external directors. An external director may not have had during the previous two years any economic relationship with the Company. Controlling shareholders of a company, 50% shareholders, and their relatives or employees cannot serve as external directors. External directors are elected by shareholders. No individual shall be appointed as an external director if his other positions or affairs create or are liable to create a conflict of interest with his position as director, or if they are liable to constrain his ability to serve as director. The shareholders voting in favor of their election must include at least one-third of the shares of the non-controlling shareholders of the Company who are present at the meeting. This minority approval requirement need not be met if the total shareholdings of the non-controlling shareholders who vote against their election represent 1% or less of all of the voting rights in the Company. Under the Companies Law, external directors serve for a three-year term, which may be renewed for only one additional three-yearterm. Ourterm, accordingly, Dr. Ora Setter will serve for a three-year term, or until November 2005.One of our two external directors,
Messrs.Moshe Rubin,and Shelly werewas appointed on October 4, 1999 before the adoption of the Companies Law and under the previous Israeli corporate laws. Pursuant to the provisions of the Companies Law an external director appointed in accordance with the provisions of the former corporate governance law shall be deemed an external director appointed in accordance with the provisions of the Companies Law however the term of appointment shall be for a five-year period thereforethe external directors of the CompanyMr. Rubin shall remain in office until October 2004.28Under the Companies law, external directors can be removed from office only by the same special percentage of shareholders as can elect them, or by a court, and then only if the external directors cease to meet the statutory qualifications with respect to their appointment or if they violate their duty of loyalty to the Company. If, when an external director is elected, all members of the board of directors of a company are of one gender, the external director to be elected must be of the other gender. Any committee of the board of directors must include at least one external director. An external director is entitled to compensation as provided in regulations adopted under the Companies Law and is otherwise prohibited from receiving any other compensation, directly or indirectly, in connection with such service.
LIABILITY OF OFFICERS AND DIRECTORSThe Company’s Amended and Restated Articles of Association provides that the Board of Directors shall consist of a minimum of two (2) and a maximum of eleven (11) directors. Each director, except for External Directors, shall serve as a director from the time of appointment until the next Annual General Meeting.
The Amended and Restated Articles of Association provides that directors may be removed only for cause by a majority of shareholders. The Companies Law also provides that
an Israeli company cannot exculpate ana director shall be removed from officeholder from liabilityin one of the following events: (i) if he has resigned or removed in accordance withrespect tothe provisions stated therein; (ii) upon conviction for abreachcriminal offence as detailed therein; (iii) in the event that a court has ordered his removal; (iv) in the event that he has been declared bankrupt.Liability, Indemnification and Exemption of
his duty of loyalty, but may exculpate in advance an office holder from his liabilityOfficers and DirectorsAccording to the
company, in whole or in part, with respect to a breach of his duty of care. The Company'sCompanies Law and the Amended and Restated Articles of Associationprovide that, subject to any restrictions imposed by corporate law,of the Company,may enter into a contract for the insurance of the liability of any of the Company's office holders with respect to an act performed by him in his capacity as an office holder and regarding: o a breach of his duty of care to the Company or to another person; o a breach of his duty of loyalty to the Company, provided that the office holder acted in good faith and had a reasonable basis to assume that his act would not prejudice the Company's interests; or o a financial liability imposed upon him in favor of another person. In addition,the Company may indemnify an office holder against:o a financial liability imposed on him in favor of another person by any judgment, including a settlement or an arbitrator's award approved by a court in respect of an act performed in his capacity as an office holder; and o reasonable litigation expenses, including attorneys' fees, expended by such office holder or charged to him by a court, in proceedings the Company institutes against him or instituted on the Company's
•
a financial liability imposed on him in favor of another person by any judgment, including a settlement or an arbitrator’s award approved by a court in respect of an act performed in his capacity as an office holder; and
•
reasonable litigation expenses, including attorneys’ fees expended by such office holder or charged to him by a court, in proceedings the Company institutes against him or instituted on the Company’s behalf or by another person, or in a criminal charge from which he was acquitted, or a criminal charge for which he was convicted, providing such charge does not require proof of criminal intent.
34
These provisions are specifically limited in their scope by the Companies Law which provides that a company may not indemnify an office holder, nor enter into an insurance contract, which would provide coverage for any monetary liability incurred as a result of any of the following:
o a breach by the office holder of his duty of loyalty unless the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company; o a breach by the office holder of his duty of care if such breach was done intentionally or in disregard of the circumstances of the breach or our consequences; o any act or omission done with the intent to derive an illegal personal benefit; or o
•
a breach by the office holder of his duty of loyalty, unless the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
•
a breach by the office holder of his duty of care, if such breach was done intentionally or in disregard of the circumstances of the breach or of the consequences;
•
any act or omission done with the intent to derive an illegal personal benefit; or
•
any fine levied against the
office holder. 29Under the Companies Law, the Company's shareholders may amend the Articles of Association to include either of the following provisions: o A provision authorizing the Company to grant in advance an undertaking to indemnify an office holder, provided that the undertaking is limited to types of events which the board of directors deems to be anticipated and limited to an amount determined by the board of directors to be reasonable under the circumstances; or o A provision authorizing the Company to retroactively indemnify anoffice holder.In addition, pursuant to the Companies Law, approval
ofby theCompany's audit committeeCompany’s Audit Committee and theCompany'sCompany’s Board of Directors and, in specified circumstances by theCompany'sCompany’s shareholders, must be obtained for the indemnification of, and procurement of insurance coverage for, theCompany'sCompany’s office holders for the following actions:o breach of duty of care by any office holder owed to the Company or any other person; o breach of fiduciary duty by any office holder owed to the extent that such office holder acted in good faith and had a reasonable basis to assume that the action would not prejudice the Company; and o
•
breach of duty of care owed to the Company or any other person by any office holder;
•
breach of fiduciary duty owed to the Company by any office holder, to the extent that such office holder acted in good faith and had a reasonable basis to assume that the action would not prejudice the Company; and
•
any financial liability imposed on any office holder for the benefit of a third party as a result of any act or omission such office holder committed as an office holder of the Company.
As a result of
a Shareholders Resolutionprevious shareholders’ resolutions datedSeptember 14, 2001,March 12, 2004, the Companyhasentered into an indemnification agreement with the officers and directors of the Companyas of December 2001and intends toentercontinue entering into an agreement with each new officer and director, subject to shareholder approval. Such agreements contain provisions which endeavor to limit the personal liability of the officers and directors, both to the Company and toourits shareholders, for monetary damages resulting from breaches of certainof theirfiduciary duties as directors and officers of the Company. In particular, such agreements provide that the Company will indemnify such individuals to the fullest extent permitted by the Companies Law, as such rights shall from time to time be amended or limited, against all expense, liability, and loss reasonably incurred or suffered by theindemniteeindemnified as a result of serving as an officer or director or employee of the Company, or any affiliate thereof or any other entity at the request of the Company.In addition,Under the
Company has obtained reimbursement indemnity insurance to reimburse directorsCompany’s Amended andofficers of the Company for losses sustained as a result of any claim arising from a wrongful act, individually or collectively, in the discharge of their duties or in breach of their fiduciary duties solely in their capacity as officers and directors of the Company, and to reimburse the Company for losses sustained as a result of any claim arising from any such wrongful act where an indemnity has been given or lawfully is required to be given to officers or directors of the Company. Consequently, under the Company's AmendedRestated Articles of Association, the Company may also indemnify its officers and directors for financial obligations imposed on them in favor of a third party by a court judgment, including a compromise judgment or a court-approvedarbitrator'sarbitrator’s decision, as well as for concomitant reasonable legal expenses, includingattorney'sattorney’s fees, as a result of any claim arising from awrongwrongful act in the discharge of their duties in their capacity as officers or directors of the Company which could materially adversely affect the business, prospects, financial condition, or results of operations of the Company.Furthermore,(See –Item 8B Significant Changes) regarding providing legal services under a legal services agreement in lieu of obtaining D&O insurance).Consequently, the ability of the Company’s shareholders, including United States shareholders, to recover monetary damages from officers and directors of the Company for certain breaches of their fiduciary duties may be significantly limited.
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Securities Act”) may be permitted to officers, directors, and controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company has been advised that, in the opinion of the
U.S.United States Securities and30Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable in the United States. B.
COMPENSATIONCompensationThe
Company'sCompany’s directors do not currently receive any compensation for their services as directors. In addition, under the Companies Law, external directors are entitled to annual compensation plus per meeting attendance fee. The Company currently pays its external directors an annual fee of US$3,000$3,100 and per meeting attendance fee of US$185.$200. Every two telephone conference calls are considered one meeting. Mr.Yossi Shelly also receives travel expensesGeorge Balot received a per meeting attendance fee offifty cents per kilometer. The Company intends to grantUS $200 until his becoming Active Chief Financial Officer on June 15, 2003. In addition, upon Mr.Moshe Kessner, who is a memberBalot’s assuming the function ofthe board of directorsActing Chief Financial Officer of the Company, he received compensation of $2,000 per month for 70 hours per month of work for the Company from June 15, 2003 until December 31, 2003, andin light of his$2,500 per month from January 1, 2004 until March 31, 2004. At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Companyoptionsfor the second quarter of year 2004.It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. (See“Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to
purchase 36,000 Ordinary Sharesthese officers with written proposals for such services.In addition, Mr. Balot had an agreement with the Company to receive a finder’s fee based only on success in selling the Company’s technology and/or finding an appropriate merger partner for the Company. This agreement expired during year 2003.
Effective December 2, 2001, Marnetics Ltd. entered into a services agreement with Netlogic Ltd., a company under the control of Menachem Reinschmidt, Chairman of the Board of Directors of the Company,
which shall vest overwhereby he provides executive managerial and other related services on aperiodnon-exclusive basis with respect to the Company, Marnetics Ltd. and any of12its affiliated companies, as may be prescribed from time to time by the Board of Directors of Marnetics,The Board of Director after receiving the approval of the Audit Committee approved an Addendum to the Netlogic Ltd. Services Agreement (effective December 2, 2002) for six (6) months, from December 2, 2002 to June 2, 2003. The position of Mr. Reinschmidt during the
dateperiod with the Company was that of Active Chairman of the Board of Directors. The duties of the Active Chairman, amongst others, includes locating potential companies to enter into partnerships, finding potential mergers and acquisitions, finding investors interested in the Company, selling the Company’s technology and its intellectual property. Mr. Reinschmidt spent 50% of hisnomination.time with respect to these duties and the compensation for such duties being a monthly gross fee of $5,000 (five thousand dollars) plus Value Added Tax. In addition, the Company provides Mr. Reinschmidt with a leased car and cellular phone for the duration of the extension of the Netlogic Ltd. Services Agreement.A Second Addendum to this Services Agreement effective December 2, 2002, was signed on June 2, 2003 and approved by the shareholders for the additional period through December 31, 2003.
The Company with shareholder approval extended the Netlogic Ltd. Services Agreement for an additional period up to March 31, 2004 for the continued rendition of services at two days per week with a monthly compensation of $2,000 with a leased car and a cellular phone. At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Company for the second quarter of year 2004.
It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. (See“Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.
In addition, Mr. Reinschmidt is receiving contingent compensation for continued support of the Company’s Legal Proceedings. (SeeItem 7B Related Party Transactions - Compensation for Continued Support of Company’s Legal Proceedings.”)
36
Mr. David Sheetrit, Acting Chief Executive Officer of the Company since June 2003, the Chief Operating Officer of the Company between January 2001 and June 2003, and Director of the Company since April 2003, provides services under a Services Agreement and received monthly compensation through December 31, 2003 of $4,000, a leased car and a cellular phone, the same as when he was the Chief Operating Officer of the Company. For the additional period through March 31, 2004 his monthly compensation, based upon two days a week, was reduced to $2,000. At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Company for the second quarter of year 2004.
It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. (See“Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.
In addition, Mr. Sheetrit is receiving contingent compensation for the continued support of the Company’s Legal Proceedings. See“Item 7.B. Related Party Transactions –Compensation for Continued Support of Company’s Legal Proceedings”
Mr. Ilan Hadar, former CFO, left the Company effective the end of July 2003.
Mr. Hanoch Newman, VP Research and Development, provided services to the Company during 2003 at a reduced salary according to 80% of his time. In addition to his salary, he was entitled to receive from sales commission of 8 percent of all sales accomplished through his efforts. Mr. Newman left the Company in June 2003.
C.
BOARD PRACTICESBoard PracticesSee
"ITEM“Item 6A- DIRECTOR AND SENIOR MANAGEMENT"– Director and Senior Management” for period that our directors and senior management are serving.COMMITTEES OF THE BOARD OF DIRECTORS - AUDIT COMMITTEECommittees of the Board of Directors – Audit Committee
The Companies Law also provides that public companies must appoint an audit committee. The responsibilities of the audit committee include identifying irregularities in the management of the
Company'sCompany’s business and approving related-party transactions as required by law. An audit committee must consist of at least three members, and include all of theCompany'sCompany’s external directors. However, the chairman of the board of directors, any director employed by the Company or providing services to the Company on a regular basis, any controlling shareholder and any relative of a controlling shareholder may not be a member of the audit committee. An audit committee may not approve an action or a transaction with a controlling shareholder, or with an office holder, unless at the time of approval two external directors are serving as members of the audit committee and at least one of the external directors was present at the meeting in which an approval was granted.In addition, the Companies Law requires the board of directors of a public company to appoint an internal auditor nominated by the audit committee. A person who does not satisfy the Companies
Law'sLaw’s independence requirements may not be appointed as an internal auditor. The role of the internal auditor is to examine, among other things, the compliance of theCompany'sCompany’s conduct with applicable law and orderly business practice. Following the combination transaction between the Company and Marnetics, Ltd., the Company has decided to appoint a new internal auditor whose candidacy will be recommended by the Audit Committee and approved by theCompany'sCompany’s Board of Directors.The Company has an audit committee that consists of
Yossi Shelly, Chairman,Ora Setter and MosheRubin and Pekka Roine.Rubin. George Balot served on the audit committee until his assuming the function of Acting Chief Financial Officer in June 2003. The audit committeeexercises the powers ofexamines, for the Board of Directors,with respect totheCompany'sCompany’s accounting, reporting and financial control practices.ADVISORY COMMITTEE In orderAdvisory Committee
During year 2002, to further the
Company'sCompany’s progress in both marketing and technology, an Advisory Committeecomprised of the following persons thatwas formed to represent both the technology and the investments made in theCompany:Company. It was comprised of the following individuals: Erez Aluf, representing STI Ventures Investments No. 2 B.V., Moshe Kessner, Joshua Piasetzky representing ECI Telecom Ltd, and Michael Schlesinger representing Docor International BV.These representatives doThe Committee, advisory to management in nature, did not have the power of board of director membersbut are advisoryand has been inactive since August 2002.37
D. Employees
On December 11, 2002 the Board of Directors resolved to authorize management of Marnetics to structure an Employment Stock Option Plan for the year 2003 and to allocate to employees of Marnetics up to 5 (five) per cent of the issued and outstanding share capital of Marnetics on a fully diluted basis. During year 2003 there was no allocation.
As of April 26, 2003 when the Company and its wholly-owned subsidiary, Marnetics Ltd, decided to lay off the majority of its marketing, sales, research and development employees, the Company had employed approximately 13 persons, of whom six (6) worked in
natureresearch and development, two (2) in marketing and sales, and five (5) in general and administrative.The Company maintained the services of certain of its officers in order to implement its operational plan, which reflected the reduction of the company’s activities in the areas of research and development, and marketing and sales. Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot have been serving the Company under services agreements.
The Board of Director after receiving the approval of the Audit Committee approved an Addendum to the
managementNetlogic Ltd. Services Agreement (effective December 2, 2002) for six (6) months, from December 2, 2002 to June 2, 2003. The position of Mr. Reinschmidt during the period with the Company was that of Active Chairman of the Board of Directors. The duties of the Active Chairman, amongst others, includes locating potential companies to enter into partnerships, finding potential mergers and acquisitions, finding investors interested in the Company, selling the Company’s technology and its intellectual property. Mr. Reinschmidt spent 50% of his time with respect to these duties and the compensation for such duties being a monthly gross fee of $5,000 (five thousand dollars) plus Value Added Tax. In addition, the Company provides Mr. Reinschmidt with a leased car and cellular phone for the duration of the extension of the Netlogic Ltd. Services Agreement.A Second Addendum to this Services Agreement effective December 2, 2002, was signed on June 2, 2003 and approved by the shareholders for an additional period through December 31, 2003.
The Company with shareholder approval extended the Netlogic Ltd. Services Agreement for an additional period up to March 31, 2004 for the continued rendition of services at two days per week with a monthly compensation of $2,000 with a leased car and a cellular phone. (See“Item 7B Related Party Transactions – Netlogic Ltd.”)
At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Company for the second quarter of year 2004.
It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize.(See “Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.
In addition, Mr. Reinschmidt is receiving contingent compensation for continued support of the Company’s Legal Proceedings. (SeeItem 7B Related Party Transactions - Compensation for Continued Support of Company’s Legal Proceedings.”)
Mr. David Sheetrit, Chief Executive Office of the Company since June 2003, the Chief Operating Officer of the Company between January 2001 and June 2003, and Director of the Company since April 2003, provides services under a Services Agreement and received monthly compensation through December 31, 2003 of $4,000, a leased car and a cellular phone, the same as when he was the Chief Operating Officer of the Company.
D. EMPLOYEES As ofFor the additional period through March 31, 2004 his monthly compensation, based upon two days a week, was reduced to $2,000. At a board meeting on June 30,2002,2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Companyemployed approximately 14 persons full-timefor the second quarter of year 2004. It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and2 persons part-time.expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize.(See “Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.38
In addition, Mr. Sheetrit is receiving contingent compensation for the continued support of the Company’s Legal Proceedings. (See“Item 7B Related Party Transactions –Compensation for Continued Support of Company’s Legal Proceedings.”)
Mr. Ilan Hadar, former CFO, left the Company effective the end of July 2003.
Based on a signed agreement June 22, 2003, effective June 15, 2003 and in effect until December 31,
2003, Mr. George Balot was the Acting Chief Financial Officer of the Company on a part-time basis of $2,000 a month for 70 hours of work, with an additional $45 per hour for every approved hour over that time, and $2,500 a month for the period January 1, 2004 through March 31, 2004. At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Company for the second quarter of year 2004. It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize.(See “Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services. Mr. Hanoch Newman, VP Research and Development, provided services to the Company during 2003 at a reduced salary. In addition to his salary, he was entitled to receive sales commission of 8 percent of all sales accomplished through his efforts. Mr. Newman left the Company in June 2003.
Israeli law, as well as collective bargaining agreements and orders of the Israeli Ministry of Labor and Welfare, contain provisions regarding conditions of employment, including, among other things, the length of the workday, minimum wages, insurance for work-related accidents, the determination of severance pay, and adjustments of wages in accordance with inflation. The Company generally provides
ourits employees with benefits and working conditions at or above the required minimums. Furthermore, Israeli employees and employers are required to pay predetermined sums to the National Insurance Institute, which is similar to the United States Social Security Administration. Since January 1, 1995, such amounts have included payments for national health insurance. The payments to the National Insurance Institute are approximately 14.6% of wages, of which 4.9% are contributed by the Company pursuant to Israeli law requirements, and the rest, 9.7%, by the employee.Most of the
Company'sCompany’s employeesarewere insured through aManagers'Managers’ Insurance Policy, which offers a combination of pension plans, insurance in cases of death and injury, and retirement and severance pay benefits. An amount equal to 5% of anemployee'semployee’s gross salary is contributed to theManagers'Managers’ Insurance Policy by the Company and an additional 5% by the employee. Another component of up to 2.5% paid by the Company covers insurance for damages sustained by employees due to loss of work capability. An additional amount equal to 8.3% is funded by the Company to cover severance liability.In addition, most of the
Company'sCompany’s employeeshave a "Keren Hishtalmut" saving planhad been provided with an Educational Fund Savings Plan pursuant to which the Company contributes an amount equal to 7.5% of theemployee'semployee’s salary and the employee contributes an amount equal to 2.5% of his salary.Obligations of the Company resulting from the termination of employer-employee relationships are primarily accounted for through allocations made on behalf of the employees to various compensation funds, pension funds, and insurance companies within the framework of Managers’ Insurance Policies and the Mivtahim
and Managers' Insurance Policies.Pension Fund,The wages of most of the
Company'sCompany’s employeesarewere linked to changes of the Israeli standard of living price index (CPI) as determined by the Israeli Bureau of Statistics.The total overhead expenses for wages in Israel are usually, approximately 30%.
39
As of
June 30, 2002,December 31, 2003, the Company had no outstanding loans to employees and officers of the Company except to Mr. Dov Strikovsky, former theformerPresident, Chairman and CEO, who is no longer employed by the Company but is a significant shareholder of the Company.See "ITEM 7B-RELATED PARTY TRANSACTIONS."(See“Item 7B-Related Party Transactions.”)E.
SHARE OWNERSHIPShare OwnershipSee
ITEMItem 7:"MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS." STOCK OPTION PLAN“Major Shareholders and Related Party Transactions.”Stock Option Plan
In connection with the June 1, 2000 share exchange agreement
("(“theagreement"agreement”) signed between the Company and Marnetics, the Board of Directors of the Company adopted an unwritten Option Plan (the"Option Plan"“Option Plan”). The Option Plan provides for the grant of options to purchase up to an aggregate of 1,000,000 Ordinary Shares to directors, key employees and consultants of the Company. The Board of Directors of the Company will determine the terms of the grants. Under the Option Plan, the Company granted, to a company under the control oftheDov Strikovsky, a major shareholder and former CEO and chairman of the board of the Company, 400,000 fully vested options to purchase shares at the exercise price of $3. With respect to these options non-cash compensation expenses totaling $2,000,000 were recorded and charged to earnings in accordance with APB 25"Accounting“Accounting for Stock Issued toEmployees"Employees”.The
Company'sCompany’s board of directors adopted a written stock option plan in its meeting of June 17, 2001. As ofJune 30, 2002, 397,208December 31, 2003, 187,221 options are allocated toemployees on a fully diluted basis.employees. In addition, former employees of Stav, have been allocated 157,143 options, which are fully vested.There remain 453,222 options that are unallocated. 32ITEMOn December 11, 2002 the Board of Directors resolved to authorize management of Marnetics to structure an Employment Stock Option Plan for the year 2003 and to allocate to employees of Marnetics up to 5 (five) per cent of the issued and outstanding share capital of Marnetics on a fully diluted basis. During year 2003 there was no allocation.
Item 7.
MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONSMajor Shareholders and Related Party TransactionsA.
MAJOR SHAREHOLDERSMajor ShareholdersThe following table identifies, as of
June 30, 2002,February 2, 2004, certain information with respect to the beneficial ownership of securities of the Company of each person or entity by the Company to be the beneficial owner of five percent (5%) or more of the Ordinary Shares of the Company:NAME AND ADDRESS OF BENEFICIAL OWNER NUMBER PERCENT(1) - ---------------- ------ ---------- Linkware Ltd.................................. 1,740,575(2) 18.82% 3 Hadror Street P.O. Box 73 Hod Hasharon 45100 Israel Dov Strikovsky................................ 1,015,714(3) 10.98% 83 Akiva Street Ra'anana, Israel ECI Telecommunications Ltd.................... 1,187,439(4) 12.84% 34 Hasivim Street Kiryat Aryeh Industrial Park Petach Tikva Israel STI Ventures Investments No. 2 B.V............ 1,180,907 12.77% Hullenbergweg 379 1101 Cr. Amsterdam Zuide - Oost The Netherlands Prime Technology Ventures NV.................. 630,550 6.82% Stroombaan 6-8 1181 VX Amstelveen, The Netherlands (1) The number of shares beneficially owned is determined under rules promulgated by the Securities and Exchange Commission, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares that the individual has the right to acquire within 60 days after June 30, 2002, through the exercise of any stock option or other right. The inclusion herein of such shares, however, does not constitute an admission that the named shareholder is a direct or indirect beneficial owner of such shares. Unless otherwise indicated, each person or entity named in the table has sole voting power and investment power, or shares such power with his or her spouse, with respect to all shares of capital stock listed as owned by such person or entity. This does not include an unallocated pool (including prior to merger) of 453,222 options in the calculation of the percentages. (2) Includes 302,266 shares that may be acquired pursuant to options that are presently or will become exercisable within 60 days at an exercise price of par value per share. (3) Includes 580,000 shares that may be acquired pursuant to options with an exercise price of $3.00 per share, which are presently or will become exercisable within 60 days by O.S.I Limited which is controlled by a trust, the beneficiaries of which are family members of Dov Strikovsky. 33
Name and Address of
Beneficial Owner
Number
Percent(1)
Linkware Ltd.
3 Hadror Street
P.O. Box 73
Hod Hasharon 45100 Israel
1,740,575
(2)
18.77
%
Dov Strikovsky
83 Akiva Street
Ra’anana, Israel
985,714
(3)
10.63
%
ECI Telecommunications Ltd.
34 Hasivim Street
Kiryat Aryeh Industrial Park
Petach Tikva Israel
1,187,439
12.81
%
STI Ventures Investments No. 2 B.V
Hullenbergweg 379
1101 Cr. Amsterdam
Zuide – Oost
The Netherlands
1,180,907
12.74
%
Prime Technology Ventures NV
Stroombaan 6-8
1181 VX Amstelveen,
The Netherlands
630,550
6.80
%
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(4) Does not include 567,500 shares that could have been acquired pursuant to an option with an exercise price of $2.992 per share that expired on August 30, 2001. There was no extension to the option.
(1)
The number of shares beneficially owned is determined under rules promulgated by the Securities and Exchange Commission, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares that the individual has the right to acquire within 60 days after February 2, 2004, through the exercise of any stock option or other right. The inclusion herein of such shares, however, does not constitute an admission that the named shareholder is a direct or indirect beneficial owner of such shares. Unless otherwise indicated, each person or entity named in the table has sole voting power and investment power, or shares such power with his or her spouse, with respect to all shares of capital stock listed as owned by such person or entity. The calculation hereunder does not take into account (i) an unallocated pool of 648,759 options and (ii) 17,125 un-vested options granted to employees.
Based on 7,362,390 Ordinary Shares outstanding as of February 2, 2004 and 1,964,113 options, which are presently or will become exercisable within 60 days.
(2)
Includes 302,266 shares that may be acquired by Linkware Ltd. pursuant to options that are presently or will become exercisable within 60 days at an exercise price of par value per share. Mr. Menachem, Reinschmidt, major shareholder and Active Chairman of the Board of Directors of the Company, is a controlling shareholder of Linkware Ltd.
(3)
Includes 550,000 shares that may be acquired pursuant to options with an exercise price of $3.00 per share, which are presently or will become exercisable within 60 days by O.S.I. Limited, which is controlled by a trust, the beneficiaries of which are family members of Dov Strikovsky.
As of
June 30, 2002,February 2, 2004, 1,008,809 Ordinary Shares of the Company were held of record in the United States. Such Ordinary Shares were held by five (5) record holders and represented 13.7% of the total Ordinary Shares then outstanding(10.9%(10.1% on fully diluted basis). OnJune 30, 2002,February 2, 2004, 6,353,581 of the Ordinary Shares were held of record outside of the United States. Such shares were held by seventeen (17)recordRecord holders and represented 86.3%(89.1%(89.9% on a fully diluted basis) of the total Ordinary Shares outstanding. Since brokers or other nominees held 927,546 of these Ordinary Shares,were held by brokers or other nominees,the number of record holders in the United States may not be representative of the number of beneficial holders or where the beneficial holders are resident.During 2001, 1,084,500 options granted to MarneticsThe following table sets forth certain
shareholder were expired unexercised. Accordinginformation as of February 2, 2004, with respect to theagreementbeneficial ownership of shares of Ordinary Shares by each of the Company’s directors and executive officers, individually, and the directors and executive officers of the Company as a group, assuming conversion of all convertible debt or preferred stock and exercise of all warrants and stock options by suchoptions have to be divided between the formersperson and only by such person41
Amount and Nature of
Beneficial Ownership(1)
Name of Beneficial Owner
Number of
Shares
Percent
of Class(2)
Menachem Reinschmidt, Director and CEO
1,740,575
(3)
18.7
%
Moshe Rubin, External Director
--
--
David Sheetrit, Director and CEO*
34,375
(4)
*
All Officers and Directors as a Group
(2 individuals)
1,774,950
19.03
%
*Less than 1%
(1)
The number of shares beneficially owned is determined under rules promulgated by the Securities and Exchange Commission, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares as to which the individual has sole or shared voting power or investment power and also any shares that the individual has the right to acquire within 60 days after February 2, 2004, through the exercise of any stock option or other right. The inclusion herein of such shares, however, does not constitute an admission that the named shareholder is a direct or indirect beneficial owner of such shares. Unless otherwise indicated, each person or entity named in the table has sole voting power and investment power, or shares such power with his or her spouse, with respect to all shares of capital stock listed as owned by such person or entity. The calculation hereunder does not take into account (i) an unallocated pool of 648,759 options and (ii) 17,125 un-vested options granted to employees.
(2)
Based on in 7,362,390 Ordinary Shares outstanding as of February 2, 2004 and 1,964,113 options, which are presently or will become exercisable within 60 days.
(3)
Menachem Reinschmidt is a controlling shareholder of Linkware Ltd. and, as such, has the ability to control the voting and disposition of the securities owned by such company. Mr. Reinschmidt disclaims beneficial ownership of such shares. Includes 302,266 shares that may be acquired pursuant to options, which are presently or will become exercisable within 60 days by Linkware Ltd. at an exercise price of par value per share.
(4)
Includes 34,375 shares that may be acquired pursuant to options, which are presently or will become exercisable within 60 days. Mr. Sheetrit has an option to acquire 2% of Linkware Ltd.,out of which 1% are presently or will become exercisable within 60 days after February 2, 2004.
B.
Related Party Transactions
Sale of
Marnetics. The Company issued without consideration 955,057 shares and 129,433 options that were divided according to the agreement. B. RELATED PARTY TRANSACTIONS SALE OF ELECTRICAL BUSINESSElectrical BusinessEffective March 2001 the Company sold to Idan Millenium Investments and Assets Ltd. (“IDAN’), a company under the control of
Mr.Dov Strikovsky, a major shareholder and former President, Chairman and CEO of the Company, all the fixed assets, inventories, other assets and liabilities and related goodwill, in the amount of an appraised value of $2,000,000, relating to the electrical operations for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum withIdan Millenium Investments and Assets LtdIDAN to change the terms of payments to such that the first 11 installment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000.In addition, the Purchaser has also assumed approximately $715,000 of liabilities related to the Electrical Business.The Company, considering the collectibility probability, decided to establish an allowance on the amount not yet collected. During years 2002 $71,000 was repaid on the account of the sale consideration. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him. See"ITEM“Item 8B- SIGNIFICANT CHANGES." SPEEDWISE TECHNOLOGIES LTD.– Significant Changes.”42
Speedwise Technologies Ltd.
In April 2001, Marnetics Ltd. entered into a software license agreement with Speedwise Technologies Ltd., a company in which Marnetics Ltd. currently owns
13.12% interest.14.7% interest, that has ceased business operations. See"ITEM“Item 4B- LICENSING ARRANGEMENTS."– Licensing Arrangements.”In July 2001, Marnetics Ltd. entered into an OEM agreement with Speedwise Technologies Ltd.
, a company in which Marnetics owns 13.12%Income ofits outstanding shares.$9,000 was earned from Speedwise during year 2002. See"ITEM“Item 4B- CUSTOMERS."– Customersand Distributors.” The OEM agreement wascancelledsince cancelled.Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd (“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in
November 2001. NETLOGIC LTD.a decrease in the Company’s holdings to 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. InFebruaryOctober 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000. For the year ended December 31, 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares will be recorded in the year in which monies are actually received.Netlogic Ltd.
The Board of Director after receiving the approval of the Audit Committee approved an Addendum to the Netlogic Ltd. Services Agreement (effective December 2, 2002) for six (6) months, from December 2, 2002 to June 2, 2003. The position of Mr. Reinschmidt during the period with the Company was that of Active Chairman of the Board of Directors. The duties of the Active Chairman, amongst others, includes locating potential companies to enter into partnerships, finding potential mergers and acquisitions, finding investors interested in the Company, selling the Company’s technology and its intellectual property. Mr. Reinschmidt spent 50% of his time with respect to these duties and the compensation for such duties being a monthly gross fee of $5,000 (five thousand dollars) plus Value Added Tax. In addition, the Company provides Mr. Reinschmidt with a leased car and cellular phone for the duration of the extension of the Netlogic Ltd. Services Agreement.
A Second Addendum to this Services Agreement effective December 2, 2002, was signed on June 2, 2003 and approved by the shareholders for an additional period through December 31, 2003.
The Company with shareholder approval extended the Netlogic Ltd. Services Agreement for an additional period up to March 31, 2004 for the continued rendition of services at two days per week with a monthly compensation of $2,000 with a leased car and a cellular phone.
At a board meeting on June 30, 2004 it was agreed to compensate both for their time and services rendered and expenses, to Mr. Reinschmidt, Mr. Sheetrit and Mr. Balot for their services to the Company for the second quarter of year 2004.
It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize.(See “Item 8B – Significant Changes.”) The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.
43
Compensation for Continued Support of Company’s Legal Proceedings
In light of the Company’s need for the continued support and involvement of its officers and directors in the legal proceedings which the Company and its subsidiary, Marnetics Ltd.
entered into a services agreement, have initiated against the Municipality of Hod Hashron, as well as against Dov Strikovsky and others (see“Legal Proceedings” below), the Company decided, withNetlogic Ltd., a company undershareholder approval, considering it’s limited financial resources, to secure thecontrolcontinued involvement and support of Messrs. Menachem Reinschmidt,DirectorChairman of the Board andCEODavid Sheetrit, director and acting Chief Executive Officer of the Company following March 31, 2004 by payment to each of Messrs. Reinschmidt and Sheetrit of 9% of any amounts awarded to the Company and/or its subsidiary, Marnetics Ltd., regarding these legal proceedings against the Municipality of Hod Hasharon.The Company considers Messrs. Reinschmidt and Sheetrit’s continued support and involvement in the above legal proceedings, in light of the extent of their previous involvement, to be a pivotal factor in the Company’s ability to prevail in such proceedings, and therefore to be in the best interests of the Company and
provides onits shareholders. The Company believes that the contingent form of payment for such services, concluded in negotiations with Messrs. Reinschmidt and Sheetrit, is appropriate in light of the Company’s limited financial capabilities and prospects.Inter Company Loan Agreement
During September 2002 the Company signed a
non-exclusive basis, executive managerial and other related servicesloan agreement withrespectMarnetics Ltd, a fully owned subsidiary, whereby Marnetics Ltd made available to the Company a secured loan of up to $500,000. The principle of the loan is linked to the changes in the Israeli CPI. The interest was set to 4% annually. The loan will be paid until December 31, 2005. In order to secure the repayment of the loan, the Company agreed to pledge in favor of Marnetics Ltd. the amounts that will be collected from the account of the “Loans to Significant Shareholder andanyFormer Director and Officer” in the amount ofits affiliated companies, as may be prescribed from time to time by the board of directors of Marnetics. 34COMBINATION TRANSACTION$1,228,000.Combination Transaction
Effective December 31, 2000, Stav Electrical Systems (1994) Ltd. acquired Marnetics Ltd. pursuant to the terms of that certain share exchange agreement among the Company, Marnetics Ltd. and the security holders of Marnetics Ltd. Upon the closing of that transaction, certain entities and individuals affiliated with the Company, including Dov Strikovsky, a principal shareholder and
theformer President, Chairman and Chief Executive Officer of the Companyorand entities affiliated with Mr. Strikovsky, received options to purchase up to 400,000 Ordinary Shares of the Company.ASSIGNMENT OF BANK DEBTAssignment of Bank Debt
On May 9, 2001, an agreement was signed between the Company and Bank Hapoalim Ltd.
("Bank"(“Bank”) with respect to theCompany'sCompany’s debt to the Bank in the amount of $3,127,000 (the"Debt"“Debt”). In accordance with theBankagreement with the Bank,hasthe Bank agreed to release the Company from its obligation to repay the Debt and to cancel the floating charge and liens registered in favor of the Bank on properties of the Company provided that, by May 31, 2001, the Companyshallpay $954,000 to the Bank on account of the Debt (the"Repaid Amount"“Repaid Amount”), and in addition, the Companyshall have assignedassign to the Bank all its rights with respect to the debt of themunicipalityMunicipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaidamount.amount in May 2001.In addition, the Company
hasprovided the Bank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of HodHasharon. Until May 31,Hasharon which has been assigned to the Bank. To date, Hod Hashron has not made any re-payment on account of the debt, and therefore the guarantee has not decreased to date. According to the terms of the agreement with the Bank, following November 30, 2002, the Bankcommittedis entitled to exercise the outstanding amount of the guarantee. As the guarantee has notto claim the guaranty fromdecreased, the Companybut if legal proceduresdecided tocollectrecord an allowance in thedebt fromfinancial records for themunicipalityentire amount of the guarantee.The Company has informed the Bank that, following prolonged negotiations, the Municipality of Hod Hasharon
werestated its position that it is not obligated towards the Company and that it retains all rights in the matter, and that further has claims against the Company amounting tobegin,some NIS 4 Million (approximately $900,000). In light of the position taken by counsel to the Municipality, the Company informed the Bankhas committed not to claimthat bringing legal action is unavoidable, and that in theguarantee fromopinion of the Companyuntil November 30, 2002.remains the only course of action that may result in the recovery of the funds due to it.44
In light of the current relationship between the Company and Mr. Strikovsky, the Company was of the opinion that the suit brought against the Municipality of Hod Hasharon should be based upon the letter by the head of the Municipality’s Engineering Department approving the assignment of the debt to the Bank and confirming the debt towards the Company.
Therefore, the Company was of the opinion that it would be proper that the Bank join the Company in bringing such suit and share in its expense. The Bank has yet to formally respond to the Company’s suggestion, although it has learned from counsel to the Bank that it is reluctant to join the suit, but may be willing to share some of the expenses involved. The Company
will haveis of the opinion that the Bank’s position is detrimental toassessthefinancial impact on its financial statements in caseCompany’s efforts.On November 20 2003, the
payment will not be done on time byCompany’s subsidiary, Marnetics Ltd., filed suit against themunicipalityMunicipality of HodHasharon. INDEMNIFICATION BY SIGNIFICANT SHAREHOLDERHasharon and its then head of the Engineering Department, in the sum of NIS 10,000,000 (approximately $2.2 million). On March 2004, the Municipality of Hod Hasharon filed a counterclaim for NIS 4.48 million for payment in excess of work and services provided. (See“Item 8A - Legal Proceedings.”)Indemnification by Significant Shareholder
1. Following the Bank agreement, on June 30, 2001 an agreement was signed between Mr. Strikovsky and the Company pursuant to which Strikovsky agreed to reimburse the Company for the Repaid Amount and any additional amount that the Company may have to pay to the Bank if the Bank exercises the guarantee related to the debt of Hod Hasharon. The reimbursement amount of $954,000 is due and payable to the Company and will be paid in monthly installments of $48,000 commencing on June 1, 2004 until paid in full. All amounts due and payable to the Company are linked to the Israeli CPI and bear interest of 4% per annum. The reimbursement amount of $954,000 was not yet recognized as the probability of its realization is in doubt.
2. In connection with the Stav/Marnetics transaction and pursuant to an amendment to the share exchange agreement, Mr. Strikovsky granted an indemnification to the former shareholders of Marnetics Ltd. against certain losses or damages related to the Electrical Business and had deposited
200,000300,000 shares of the Company held by him in escrow as security for his indemnification obligations.3. During the audit of the financial statements of Stav Electrical Systems (1994) Ltd. for the year ended December 31, 2000, it was discovered that excess advances were paid to certain suppliers in the amount of $0.5 million. On June 30, 2001, Mr. Strikovsky, the Company and the former shareholders of Marnetics Ltd. entered into a separate indemnification agreement that further defined, clarified and expanded the terms of the initial indemnification, added indemnification obligations related to the bank debt assignment (as described above) and provided for an additional 100,000 shares of the Company held by Mr. Strikovsky to be held in escrow as security for such indemnification obligations. Under this indemnification agreement, Mr. Strikovsky agreed to:
35o Reimburse the Company for US $954,000 which is the amount the Company has paid to the bank pursuant to the debt assignment described above, to be paid in monthly installments of US $48,000 commencing June 1, 2004 until paid in full. All amounts due and payable to the Company are linked to the Israeli CPI and bear interest of 4% per annum. The reimbursement amount of $954,000 was not yet recognized as the probability of its realization is in doubt; and o Guaranty the repayment of $0.5 million to the Company by certain suppliers of the Company in connection with excess advances made to such suppliers by the Company in the year-ended December 31, 2000. Such sum was paid to the Company in July 2001 by realization of bank guarantees in favor of the Company. o
•
Reimburse the Company for US $954,000 which is the amount the Company has paid to the bank pursuant to the debt assignment described above, to be paid in monthly installments of US $48,000 commencing June 1, 2004 until paid in full. All amounts due and payable to the Company are linked to the Israeli CPI and bear interest of 4% per annum. The reimbursement amount of $954,000 was not yet recognized as the probability of its realization is in doubt; and
•
To indemnify the Company for any amount it may pay to Bank Hapoalim in the future under the guarantee granted by the Company in favor of the bank under the debt assignment or for any losses the Company may incur in connection with such debt assignment documents.
45
4. The Company
under its former name,and Mr.DovStrikovsky were named asco-defendantsa defendant in a claim for specific performance of an agreement allegedly entered into by the Company and the plaintiff, Ananda Capital Partners, Inc., in April 1999 (the “Agreement”) as well as damages as a result of a breach of the agreement.The Company did not appear or defend the law suit because it did not receive notice of its commencement or any of the subsequent proceedings.On July 2, 2001, due to the fact that no defense and/or reply were provided by theco-defendants,Company or Mr. Strikovsky, judgment was entered against the Company and Mr.DovStrikovsky in the amount of $725,000. On December 5, 2001, Mr. Strikovsky gave an undertaking to indemnify the Company for all legal expenses and court costs arising out or in connection with this claim. On February 7, 2002 the Company filed a motion to vacate the judgment and on February 27, 2002 the court rejected the motion. The Company filedthe appropriate papers to bringan appealtoon therejectioncourt decision which was accepted by the Supreme Court of themotionState New York with instructions tovacate the judgment. These papers will be filedallow evidentiary hearing. The hearing was held onor before July 8, 2002. It is expected that decision on the appeal will be issued by the court in or about October 2002. On December 5, 2001, Mr. Dov Strikovsky gave an undertaking to indemnifyMay 22, 2003 and the Company is awaiting the court’s decision. The plaintiff proposed to settle the suit forall legal fees, expenses$250,000 andcourt costs arising out orwhile the Company was willing to further negotiate a substantially lower amount, inconnection with this claim. Thelight of the plaintiff’s position the Company decided to reject the proposal. In 2001 the Company has established an allowance in the amount of $750,000 to provide for its possible exposure.LOANS TO SIGNIFICANT SHAREHOLDER AND FORMER DIRECTOR ANDIn light of those developments the Company decreased the allowance by $500,000 to $250,000 which, in light of the judgment against the Company and the settlement offer proposed, represents a conservative estimate of the probable exposure. (See“Item 8A (1) – Financial Information -Legal Proceedings.”)Loans to Significant Shareholder and Former Director and CEO
The Company
has,had, from time-to-time, made loans to Dov Strikovsky during the period of time he was Chairman of the Board of Directors, President, and Chief Executive Officer of the Company. At December 31, 1997, 1998, and 1999 the amount of such loans outstanding was US $1,151,000, US $1,443,000 and US $1,570,000 respectively. Such loans did not bear interest through December 31, 1997. (Such loans currently linked to the Israeli Consumer Price Index and bear interest at the rate per annum equal to LIBOR plus 2 %.) In addition, during 1999 and 2000, the Company inadvertently made excess advances to Mr. Strikovsky. Upon discovery of this error, Mr. Strikovskystarted to repayrepaid to the Company the amount of such excess advances.In preparation for its initial public offering, in April 1998, the Company entered into an agreement with Mr. Strikovsky which provided that he would pay interest only on such loans through October 1, 1998 and will amortize the principal amount, and pay interest thereon, commencing on January 1, 2000 and terminating on December 31, 2003. In September 1998, such agreement was superceded by an agreement pursuant to which Mr. Strikovsky agreed to repay such loans together with the interest thereon, on or prior to November 25, 2000, subject to extension in the sole discretion of the disinterested members of the Board of Directors of the Company. Mr. Strikovsky applied the net proceeds of the sale in the
Company'sCompany’s initial public offering of a number of his Ordinary Shares, approximately US $522,000, and also agreed to apply 50% of all dividends paid, net of taxes, on the Ordinary Shares owned by him to the prepayment of such loans. Pursuant to the September 1998 agreement, in 1999, the disinterested members of theCompany'sCompany’s Board of Directors voted to extend the repayment terms of the net loan. The loan is currently payable in eight annual installments, which commenced in December 31, 2000 and shall be repaid in full by December 31, 2007. First payment was made by way of applying Mr.Strikovsky'sStrikovsky’s net proceeds of the sale in theCompany'sCompany’s initial public36offering in the amount of $522,000. In September, 1999 a dividend that was paid to Mr. Strikovsky in the sum of $90,000, and he applied half of this amount, $45,000 towards repayment of the loan. During August, September 2002 Mr. Strikovsky paid the Company sum of $225,000 including interest. This amount credited first against the balance of its currents account in the sum of $87,000 and the sum of $138,000 was credited against the balance due of the loan.
Mr. Strikovsky did not make further payments towards this loan. The balance due of the loan is $138,000. The Company notified Mr. Strikovsky of its default and is
considering its futureinvolved in ongoing legalactions.efforts aimed at collecting amounts due from Mr. Strikovsky and the companies under his control. In year 2004 Mr. Strikovsky is involved in legal proceedings that can lead to his filing for bankruptcy which will have a direct negative impact on the ability of the Company to collect the amounts due from him.At December 31, 2001 the Company reassessed the collectibility of the net loan, in the amount of $1,228,000 granted to Mr. Strikovsky in previous years, in accordance with provisions of SFAS No. 114
"Accounting“Accounting by Creditors for Impairment of aLoan"Loan”, and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. Income from impaired loan will be recorded using the cash method.46
In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him.
C.Interests of Experts and Counsel
Not Applicable
ITEMItem 8.
FINANCIAL INFORMATIONFinancial InformationA.
FINANCIAL INFORMATIONFinancial InformationSee
"ITEM 18-FINANCIAL STATEMENTS"“Item 18-Financial Statements”.LEGAL PROCEEDINGSLegal Proceedings
1. The Company
under its previous name,and Mr.DovStrikovsky were named asco-defendantsdefendants in a claim for damages and specific performance of an agreement allegedly entered into by the Company and the plaintiff, Ananda Capital Partners, Inc., in April 1999as well as damages as a result of a breach of the alleged agreement. The Company did not appear or defend the law suit because it did not receive notice of its commencement or any of the subsequent proceedings.(the “Agreement”). On July 2, 2001, due to the fact that no defense and/or reply were provided by theco-defendants,Company or Strikovsky, judgment was enteredby the Supreme Court of the State of New York,against the Company andMr. DovStrikovsky in the amount of $725,000. On February 7, 2002, both the Company and Strikovsky filed a motion to vacate the judgment, and on February 27, 2002, the court rejected the motion. The Company filedthe appropriate papers to bringan appeal that was accepted by the Supreme Court of the State New York with instructions to allow an evidentiary hearing in regard to therejectiondefendants claim that the default judgment was entered without proper service of process. The hearing was held on May 22, 2003, but the court has not yet entered its decision. The plaintiff proposed to settle the suit for $250,000, and while the Company was willing to further negotiate a substantially lower amount, in light of themotion to vacate the judgment. These papers will be filed on or before July 8, 2002. It is expected that decision on the appeal will be issued by the court in or about October 2002. On December 5, 2001, Mr. Dov Strikovsky gave an undertaking to indemnifyplaintiff’s position, the Companyfor all legal fees, expenses and court costs arising out or in connection with this claim. Thedecided to reject the proposal. In 2001 the Companyhasestablished an allowance in the amount of $750,000 to provide for its possible exposure. In light of subsequent developments, the Company decreased the allowance by $500,000 to $250,000, which, in light of the judgment against the Company and the settlement offer proposed, represents a conservative estimate of the probable exposure.During June 2002, the plaintiff filed a request of enforcement with the District Court of Tel Aviv, Israel, asking the court to enforce the judgment against the Company and Mr. Dov Strikovsky in the amount of $725,000, in Israel.
The Company filed the appropriate papers to bring an appeal to the rejection of the motion to vacate the judgment, in July 2002.
On September 10, 2002, the District Court of Tel Aviv, Israel agreed to grant the Company an extension of thirty days to file its motion to contest the enforcement of the judgment from the date of the Israeli Court’s decision regarding the motion to dismiss the enforcement of judgment claim. The Court later denied the Company’s motion. In light of the proceedings conducted in this matter in the United States, a hearing as to the substance of the claims has not yet been held, and Company and opposing counsel have agreed, from time to time, to postpone the date of such hearing. Currently, a hearing in the case is scheduled for January 9, 2005.
2. On September 10 2003, the Company filed suit against Mr. Strikovsky and others in the sum of NIS 3,193,743 (approximately $700,000) due to default under loans extended to Mr. Strikovsky by the Company, as well as other debts related to the sale of its electrical business to companyies under Mr. Strikovsky’s control. On December 4, 2003, the Company was able to obtain a court order for the seizure of certain notes credited to the defendants by the Municipality of Hod Hasharon.
In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him. There is scheduled on July 14, 2004, a hearing in court for the protection of the creditors of Mr. Strikovsky.
47
3. On May 9, 2001 an agreement was signed between the Company and Bank Hapoalim, Ltd. with respect to the
Company'sCompany’s debt to the Bank in the amount of $3,127,000.See ITEM 7(See“Item7B -RELATED PARTY TRANSACTIONSRelated Party Transactions -ASSIGNMENT OF BANK DEBT.Assignment of Bank Debt.”)After the consummation of the Bank Agreement, the Company was informed that the municipality of Hod Hasharon is delaying the payments due to the Bank. As a consequence the Company is carrying out
negotiationnegotiations with the municipality of Hod Hasharon for the repayment of the debt including interest accrued thereon. The legal advisor of the Company in a letter dated June 6, 2002 wrote that the present negotiations by the lawyers of the Company with the lawyers representing the municipality of Hod Hasharon can be considered to be legal procedures and that theguarantyguarantee can be considered extended under the Bank agreement until November 30, 2002.3.Since then the Bank has extended its agreement to withhold proceedings, which has lapsed in May 2003.On November 20 2003, the Company’s subsidiary, Marnetics Ltd., filed suit against the Municipality of Hod Hasharon and its then head of the Engineering Department, in the sum of NIS 10,000,000 (approximately $2.2 million) (for court fee purposes), claiming that the negligence of and/or misrepresentations made by the Municipality at the time of the reverse merger transaction between the Company and Marnetics Ltd., in regard to the Municipality’s debt towards the Company, caused Marnetics Ltd. damages of some NIS 24,000,000 (approximately $5.33 million) between the years 2000 and 2002. On March 2004, the Municipality of Hod Hasharon filed a counterclaim for NIS 4.48 million for payment in excess of work and services provided.
4. On December 4, 2001, Mr. Menachem Reinschmidt, the Active Chairman of the Board of Directors of the Company, received two letters from Advocate Yori Nehushtan on behalf of two shareholders of the Company, Messrs. Yossi Tessler and
Lavni Krasni, shareholders inLavi Krasni. The letters raised theCompany sent to Menachem Reinschmidt, CEO ofallegation that theCompany, a demand letter with claims regarding information published by the Company regarding the BITmax Line of Products, in theCompany’s Proxy Statement filedinon November 17,2000. Menachem has rejected these claims2000, contained false representations regarding the Company’s technology. Mr. Reinschmidt and theso-called damages being claimed. AsCompany contend that no false representations were given, that such representations were given subject to various risk factors clearly detailed in the Company’s Proxy Statement, and that in any event, such representations are protected under the “safe harbor” provisions of thedateSecurities and Exchange Act ofJune 30, 2002, to the best of the knowledge of the Company no action has been taken by the proposed claimants.1934 as forward looking statements under United States securities laws. On September 14, 2001,by waythe shareholders ofa Shareholders Meeting,Marnetics Ltd.'s shareholdersapproved a resolution to indemnifyMenachemMr. Reinschmidt in respect to37the demand letter sent by Advocate Yori Nehustan on behalf of Yossi Tessler and Lavie Krasni, in accordance with the provisions and limitations set out in the Israeli Companies Law 5759-1999. DIVIDEND POLICYLaw.5. During March 2003, the Company received letters from the lawyers of Marot Imaging Israel Ltd., the Israeli representative of Getty Images, Inc. that pictures from GETTYIMAGES were incorporated into the Company’s internet site without obtaining the copyright permission of the owner. The Company denied responsibility for the alleged infringement, as the builder of the site retained by the Company was responsible for the incorporation of the images into the site. Upon notification that the images may be infringing rights of third party’s, the Company ceased to use the pictures in question and has so notified the agent of Getty Images. Although Marot Imaging has offered to settle the matter the Company at this time has decided not to accept the settlement offer. To date no action has been filed with the courts by Marot in this matter.
6. During year 2002, the Company resolved an issue with the Israel Airports Authority regarding previous agreements made with the former CEO of the Company whereby the Company had issued in the past a guarantee to provide electrical work to the Israel Airports Authority.
On November 24, 1997 the Company under the previous name Stav Electrical Systems(1994) Ltd signed an agreement to perform services for the Israel Airports Authority and provided a guarantee to perform the services under the agreement. On January 21, 2001a further agreement was signed regarding changes and additions to such services to be performed. The Company, under its previous name, requested that Stav Lighting Manufacturer Electric Services (Company no. 51-1108128) and Stav Electric Works Ltd. (Company no. 51-1065880) perform the services and manage the work for the Company.
On November 28, 2002 Stav Electric Works Ltd. and Stav Lighting Manufacturer Electric Services joined with the Company, jointly and severally, to perform the services for the Israel Airport Authority, whereby the monies owing under the agreements with the Israel Airports Authority will be paid to the Company.
48
On December 10, 2002, the Company and the Israeli Airports Authority came to agreement regarding payment to the Company for work provided by the previous companies involved in the previous agreements, upon the Company committing to renew the guarantee by March 2, 2003. Since then the guarantee has been cancelled.
7. The Company had an outstanding debt of approximately $28,000 to the law firm of Ohernstein & Brown for legal services rendered to the Company in connection with its defense of the Ananda Capital Partners Inc. lawsuit. The debt was settled in full by payment of $14,000 in June 2004. Ohernstein & Brown has signed a release of claim against the company, but no longer represents the Company in regard to the Ananada Capital Partners Inc. law suit.
Dividend Policy
Although in 1999 we declared a cash dividend on our Ordinary Shares, we do not anticipate declaring a dividend for the foreseeable future. In addition, the payment of cash dividends in the future (if ever declared by the Board) is limited by the Israeli law to the profits of the Company and could potentially be limited or prohibited by the terms of financing agreements we may enter into
(e.g.(e.g., a bank line of credit or an agreement relating to the issuance of debt securities of the Company). Marnetics has never paid any cash dividends to date on its ordinary shares.B.
SIGNIFICANT CHANGES SALE OF ELECTRICAL BUSINESSSignificant ChangesAs of April 26, 2003, the Company decided to lay off the majority of the employees of the Company and those of its wholly-owned subsidiary, Marnetics Ltd. in the areas of marketing, sales and research and development The remaining employees are in the area of administration and are being compensated until end of June 2004. It was further discussed at the board meeting on June 30, 2004, the continuation of the compensation and expenses for their services after June 30, 2004 regarding providing services in the negotiations with the potential purchaser in managing the due diligence process, the closing of the transaction, the proxy process and the annual shareholders meeting, as well as any initial steps for liquidation if the negotiations with the potential purchaser do not materialize. The Company will discuss such at the next board meeting and come back to these officers with written proposals for such services.
At the annual shareholders meeting on March 12, 2004, the Company’s operational plan for the year 2004 was approved. It made provision for steps to begin liquidation of the Company. (See “Item 8B – Significant Changes.”) It is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company has been in on-going serious discussions throughout the second quarter of year 2004 with a with a third party acquirer interested in purchasing a controlling share in the Company. (See “Item 8B – Significant Changes.”) There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.
The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would no longer be available nor would it continue to be in its current form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving on its Board and Audit Committee, and all other requirements as detailed under the Companies’s Law regarding public companies.
THE COMPANY’S OPERATIONAL PLAN FOR THE YEAR 2004
Following is a summary of the Company’s Operational Plan for the year 2004:
1. Finalize the sale of Marnetics Ltd. to Magal Ltd., or find an alternate purchaser if the proposed transaction with Magal Ltd. is not consummated. Since the operational plan was approved, the transaction was not consummated due to a failure to come to agreement in the negotiations.
49
2. If no agreement for the sale of Marnetics Ltd. is consummated, to seek a purchaser for all of Marnetics Ltd.’s Intellectual Property (technology) as well as for the sale of the Company’s fixed assets not in use.
3. Actively seek a purchaser for the shares of the Company who will bring new business to the Company, or who seeks an investment in the Company. The Company is currently considering an offer for the acquisition of a controlling interest in the Company by a third party which, if consummated, will result in such third party having a effective control of the Company. The proposal the Company is considering has been made along the guidelines detailed below, and if the negotiations are completed, consummation of the transaction will be subject to the receipt of all necessary approvals, including shareholder approval. In addition, the execution of the contemplated transaction will dependent upon the settlement and/or disposition of the proceedings involving Bank Hapoalim and Ananda Capital Partners Inc., to the satisfaction of the third party acquirer.
The guidelines for the proposed transaction are as follows: (a) a cash investment in the Company of $300,000 against issuance of shares according to a post-money valuation of $500,000; (b) continuing legal proceedings initiated by the Company and its subsidiary Marnetics Ltd. against the Municipality of Hod Hasharon and Mr. Strikovsky, with all funds recovered in such proceedings going to the benefit of the current shareholders of the Company.
4. File notice with the Securities and Exchange Commission (SEC) in order to enable the Company to cease SEC filings and reporting.
5. Legal proceedings:
•
Continue supporting the legal proceedings currently in progress against Mr. Dov Strikovsky and companies controlled by him, as well as those against the Municipality of Hod Hasaharon;
•
Continue defense in legal proceedings initiated against the Company, including those that have been threatened, Ananda Capital Partners Inc., or may be possibly initiated, Bank Hapoalim and/or the Municipality of Hod Hasharon..
6. Maintain bookkeeping, budgeting and the reporting of results.
7. Provide financial management for the maximization of yields on funds invested.
8. If a purchaser for the Company is not found prior to March 31, 2004, then to begin steps towards liquidation of the Company. For the year 2004, the Company forecasts the following utilization of its estimated cash balance of $230,000 as follows:
Q1 2004
Q2-Q4 2004
Director fees
14,000
-
Salaries
24,000
6,000
Legal fees
50,000
45,000
Filing costs and related expenses
15,000
-
Outstanding taxes
-
64,000
Other
10,000
2,000
Total
113,000
117,000
50
Potential Purchaser of the Company
The Company is in negotiations with a third party acquirer interested in purchasing a controlling share in the Company, including Marnetics Ltd and its intellectual property. This would possibly bring a new direction to the Company. The Company is considering the proposal, which may be different to the Company’s Operational Plan for the Year 2004(See Item 8B – Significant Changes.”) In addition, the execution of the contemplated transaction will be dependent upon the settlement and/or disposition of various legal proceedings the Company is involved in, to the satisfaction of the third party acquirer. There can be no assurance that the potential investor will agree to purchase a controlling share in the Company or that the conditions to closing of such transaction (which will require shareholder approval) will be obtained.
Reduction of Marnetics Business and Research and Development Activities
As of April 26, 2003, the Company decided to lay off the majority of the employees of the Company and its wholly-owned subsidiary, Marnetics Ltd. in the areas of marketing, sales and research and development. The Company maintained the services of certain of its officers in order to implement its operational plan, which reflected the reduction of the company’s activities in the areas of research and development, and marketing and sales.
Approval of the Principles for the Sale of Marnetics Ltd.
The Board of Directors proposed to sell its wholly-owned subsidiary, Marnetics Ltd. (the “Subsidiary”), which has operated the core business of the Company in developing and marketing network capacity enhancement and network information analysis solutions for IP networks, to Magal Ltd. (“Magal”), a holding company of a group of leading Israeli companies in the field of data communications and infrastructure (the “Transaction”).
The Company received shareholder approval for the transaction in March 2004 but to date the negotiations have not been consummated.
The main principles of the proposed sale of Marnetics Ltd. to Magal, for which the Company sought shareholder approval, were as follows:
•
The Company would sell to Magal its holdings in Marnetics Ltd., constituting the entire issued and outstanding share capital of the Subsidiary (the “Sale”).
•
Prior to the Sale, certain assets recorded in the books of Marnetics Ltd. would be transferred to the Company for no consideration, which are mainly cash and cash equivalents, its holdings in Speedwise Ltd., and other fixed assets which would enable the Company to continue its operations as proposed after consummation of the Transaction. The remaining assets of the Subsidiary would be, mainly, all its intellectual property rights in and to the technology it has developed (the “Technology”) and certain of the fixed assets related thereto.
•
Upon consummation of the Sale, Magal would assign to Marnetics Ltd. its exclusive rights to distribute and maintain 3Com Corporation’s (“3Com”) Faxport for workgroup (version 8.0) and WINport (version 8.0) software, as well as the worldwide exclusive right to use 3com’s distribution and service basis related to such software. In addition, Magal would assign to Marnetics Ltd. all the original source code, as well as source code developed in Israel.
•
Upon consummation of the Sale, Marnetics Ltd. would waive repayment of the Company’s entire outstanding debt towards Marnetics Ltd. (approximately $2.2 million as of December 31, 2003).
51
•
Any monies received by Marnetics Ltd. subsequent to the sale to Magal, as a consequence of the lawsuit against the Municipality of Hod Hasharon, would be considered to be the property of the former owners of Marnetics Ltd. and would be transferred to the Company immediately upon receipt by Marnetics.
•
In consideration for its holdings in Marnetics Ltd., the Company would receive from Magal:
•
Royalty fee payments equaling 5.5% of Marnetics Ltd.’s annual sales of products developed by Marnetics Ltd. prior to the Sale, and derivatives thereof, for a period of 5 years following the Sale (the “Royalties”);
•
25% of the actual amounts saved by Marnetics Ltd. in income taxes, due to Marnetics’recorded deductible losses prior to the Sale, which are realized within 10 years of the Sale;
•
10% of the consideration (in cash or securities) resulting from the sale, merger or IPO (Initial Public Offering) of Marnetics Ltd. or one of its parent companies, if occurring within 6 years following the Sale.
•
If the Royalties actually received by the Company do not total $10,000 or more by the end of two years from the date of the Sale, the Company would have the joint, non-exclusive, but unlimited right to use the Technology for its own benefit.
The Transaction included several conditions to closing, chiefly, the completion of a due diligence examination of the Subsidiary by Magal, and the Company’s obtaining all the necessary consents, waivers and approvals required by law or otherwise to effect the Transaction, including that of the Office of the Chief Scientist in the Ministry of Trade and Industry. On August 18, 2003 the Company obtained the consent of principal of Bank Hapoalim Ltd. for the sale, which is required under the terms of the debentures securing the Company’s debt to the Bank.
The Board of Directors considered the consummation of the transaction for the sale of Marnetics Ltd. to Magal to be in the best interests of the Company and its shareholders and noted the following reasons:
•
In light of the Company’s diminished financial resources and following lengthy efforts by management to continue the use and benefit of the technology developed by Marnetics Ltd., the offer made by Magal was the best and most serious proposal offered to the Company’s management at the time.
•
The Company had an established relationship with Magal Ltd., through its affiliate Magalcom, a distributor of Marnetics Ltd.’s line of products, hence Magal is well aware of Marnetics’ potential. The Board considered this to be a marked advantage in realizing such potential.
•
The Board also believed that Magal’s undertaking to incorporate its distribution activities of 3Com Corporation’s products with those of Marnetics Ltd. would further strengthen the marketability of Marnetics products through, among other things, exposure to Magal’s existing client base.
52
Following the consummation of the Transaction, the Company proposed to continue its operations for the main purpose of collecting outstanding debts owed to the Company by Mr. Dov Strikovsy and the Municipality of Hod Hasharon, regarding which the Company had initiated legal proceedings, as well as continue its defense in legal proceedings initiated against it, including those which have been threatened or may be possibly initiated. In the event that the Transaction is not consummated, for whatever reason, the Company proposed that in addition to the above, it shall continue to seek opportunities for the sale of the Subsidiary and its Technology and/or other transactions with respect thereto.
Delisting of Trading of Shares from the Amex
By letter dated November 15, 2002, the Company was advised that its status was not in compliance with certain of the standards of the American Stock Exchange (the “Exchange”), namely 1) the aggregate market value of the shares publicly held was less than $1 million for more than 90 consecutive days and, 2) the common stock had been selling for a substantial period of time at a low price per share. As a consequence, the Exchange considered suspending dealing in, or removing the common shares from the list. The Company was offered an opportunity to submit a plan which would demonstrate an ability to regain compliance with the continued listing standards. Such a plan was submitted on December 23, 2002 and revised on January 13, 2003.
On January 31, 2003, the Exchange communicated to the Company that it had completed its review and determined to initiate de-listing proceedings.
By correspondence dated February 6, 2003, the Company appealed the Exchange’s determination and, in written submission dated March 9, 2003, the Company provided information in support of its request for review.
On March 25, 2003, a hearing was held before an Exchange Listing Qualifications Panel. By letter dated March 26, 2003, the Exchange notified the Company of the Panel’s determination that the Company’s common stock should be de-listed by the Exchange.
The AMEX suspended trading in the Company’s common stock effective April 1, 2003 and the Company did not appeal the Panel’s decision.
As from April 1, 2003 the Company’s shares began to be quoted on the Pink Sheets under the symbol MXBT.PK.
The Company is currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would no longer be available nor would it continue to be in its current form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving on its Board and Audit Committee, and all other requirements as detailed under the Company’s Law regarding public companies.
Sale of Electrical Business
Effective March 2001 (executed June 10,
2001,2001) the Companyexecuted an agreement, effective March 31, 2001, to sell it's Electrical Business, including certain related liabilities,sold to Idan Millenium Investments and AssetsLtd, wholly-owned byLtd. (“IDAN’), a company under theCompany'scontrol of Dov Strikovsky, a major shareholder and formerchief executive officerPresident, Chairman andcurrent major stockholder, Dov Strikovsky. Mr. Strikovsky was the sole bidder in a public request for proposals that was announced on May 15, 2001 and ended on May 30, 2001. The Board of Directors considered the purchase offer and authorized the Company's acceptanceCEO of thePurchaser's bid. The sale was forCompany, all the fixed assets, inventories, other assets and liabilities and related goodwill, in the amount of an appraised value of $2,000,000, relating to the electrical operations for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum withIdan Millenium Investments and Assets LtdIDAN to change the terms of payments to such that the first 11 installment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000. The Company, considering the collectibility probability, decided to establish an allowance on the amount not yet collected.The first four installments were paid.During year 2002 Mr. Strikovsky repaid $71,000 on the account of the sale consideration. In year 2004 Mr. Strikovsky is involved in legal proceedings leading towards his filing for bankruptcy. If adjudged bankrupt, this will have a direct negative impact on the ability of the Company to collect the amounts due from him. (See“Item 7B – Related Party Transactions.”)53
This summary highlights selected information about the Electrical Business purchase agreement and may not contain all of the information that is important to you. To understand the sale of the Electrical Business more fully and for a more complete description of the legal terms, you should read
"ITEM(See -“Item 7B- RELATED TRANSACTIONS"– Related Transactions”), and the agreements, which areattachedincluded asExhibits 10.6 and 10.7 hereto and the other documents referred to herein. The Company's operations during 2001 consisted of two lines of business: (1) core business of developing and marketing broadband Internet fortification solutions which shiftedexhibits to thedevelopmentannual reports on Form 20-F for the fiscal years ended December 31, 2000 andmarketingDecember 31, 2001.Legal Services Agreement
The Company entered into a legal services agreement with the offices of
capacity enhancementAdvocate Oded Steiff for the provision of legal services in Israel to the Company, its wholly owned subsidiary Marnetics Ltd. andinformation analysis solutionstheir officers and directors, as from December 31, 2003. Prior to December 31 2003, the Company received legal services forIP networks orit on-going operations in Israel from theNetwork Business,law firm of Haim Samet, Steinmetz, Haring & Co., which ishandled through our wholly-owned subsidiary, Marnetics Ltd.affiliated with Holland & Knight LLP.,and (2) historical business of electrical and lighting contracting and engineering business ortheElectrical Business,law firm whichwas sold during 2001. During the year 2001, dueprovided legal services to theshiftCompany mostly with regard to U.S. securities issues.As a result of the
technology focusCompany’s financial restraints, and in light ofMarnetics,the Company’s now limited scope of operations, the Company sought to enter into anew CEO was broughtlong-term relationship, within a fixed fee structure, which will meet its expected legal needs, especially with regard to its ongoing litigation matters.In addition, the legal services agreement that the Company entered into with the offices of Advocate Oded Steiff will meet the Company’s needs in lieu of obtaining D&O insurance, which the Company maintained in recent years, and which the Company’s finances can no longer support. The Company believes that the legal services agreement will be sufficient to cover those legal expenses that the Company may incur in regard to D&O claims arising from acts prior to entering into the
Company. Menachem Reinschmidt established Marnetics in 1998agreement andwas its first Chief Executive Officer,which are covered under the Company’s previous D&O insurance, andoversees all technology development activitiesthat the scope of theCompany. Onelegal services agreement proposed is reasonably sufficient to cover future claims that may arise.The services to be rendered under the agreement proposed include both ongoing legal services (drafting of correspondence and agreements, legal representation in negotiations, etc.) as well as representation in court proceedings initiated against the
leading data communication expertsabove persons and entities, up to but not including evidentiary hearings.The ongoing legal services will be provided for a period of seven years, beginning January 1, 2004, and are limited to 10 hours per month and representation in
Israel, Mr. Reinschmidt has 17 yearsup to 6 claims.In consideration for the above services, the Company will pay a sum of
experience in the most advanced fields of computer networks, including design, analysis, integration and development. His expertise incorporates advanced networking topics, including frame relay, TCP/IP, Internet architecture, ATM, Local Area Networks, routers and switches, and voice-over IP. ITEMUS$ 40,000 plus VAT (Value Added Tax) as a one-time non-refundable payment.Item 9.
THE OFFER AND LISTINGThe ListingA.
LISTING DETAILSListing DetailsThe following are the high and low sales prices by fiscal quarter for the quarterly periods in which the Ordinary Shares
have beenhad traded on theAmerican Stock Exchange. 38AMEX.
Ordinary Shares
Trading Prices
High
Low
1998
Fourth Quarter (from November, 25, 1998)
US $6.125
US $4.875
1999
First Quarter
5.250
4.000
Second Quarter
4.125
1.750
Third Quarter
2.500
1.500
Fourth Quarter
3.500
1.330
2000
First Quarter
24.750
2.500
Second Quarter
15.750
6.750
Third Quarter
17.500
14.063
Fourth Quarter
14.500
6.313
2001
First Quarter
7.250
4.200
Second Quarter
4.600
1.10
Third Quarter
2.20
0.30
Fourth Quarter
0.90
0.35
2002
First Quarter
0.89
0.30
Second Quarter
0.44
0.20
Third Quarter
0.25
0.06
Fourth Quarter
0.18
0.06
2003
First Quarter
0.22
0.06
54
ORDINARY SHARES TRADING PRICES --------------------- HIGH LOW --------- --------- 1998 Fourth Quarter (fromFor the period from April 1, 2003 until July 6, 2004, the Company’s shares are traded on the Pink Sheets, and the high during this period was $0.16 and the low was $0.01. As at July 6, 2004, the shares were quoted at $0.03.
B. Markets
By letter dated November
25, 1998)....... US $6.125 US $4.875 1999 First Quarter ................................. 5.250 4.000 Second Quarter ................................ 4.125 1.750 Third Quarter ................................. 2.500 1.500 Fourth Quarter ................................ 3.500 1.33 2000 First Quarter ................................. 24.750 2.500 Second Quarter ................................ 15.750 6.750 Third Quarter ................................. 17.500 14.063 Fourth Quarter ................................ 14.500 6.313 2001 First Quarter ................................. 7.250 4.200 Second Quarter ................................ 4.600 1.100 Third Quarter ................................. 2.200 .300 Fourth Quarter................................. .900 .35015, 2002,First Quarter.................................. .890 .300 Second Quarter ................................ .440 .200 B. Not applicable C. MARKETS The Company's Ordinary Shares are quoted onthe Company was advised that its status was not in compliance with certain of the standards of the American Stock Exchange (the “Exchange”), namely 1) the aggregate market value of the shares publicly held was less than $1 million for more than 90 consecutive days and, 2) the common stock had been selling for a substantial period of time at a low price per share. As a consequence, the Exchange considered suspending dealing in, or removing the common shares from the list. The Company was offered an opportunity to submit a plan which would demonstrate an ability to regain compliance with the continued listing standards. Such a plan was submitted on December 23, 2002 and revised on January 13, 2003.On January 31, 2003, the Exchange communicated to the Company that it had completed its review and determined to initiate de-listing proceedings.
By correspondence dated February 6, 2003, the Company appealed the Exchange’s determination and, in written submission dated March 9, 2003, the Company provided information in support of its request for review.
On March 25, 2003, a hearing was held before an Exchange Listing Qualifications Panel. By letter dated March 26, 2003, the Exchange notified the Company of the Panel’s determination that the Company’s common stock should be de-listed by the Exchange.
The AMEX suspended trading in the Company’s common stock effective April 1, 2003 and the Company did not appeal the Panel’s decision.
As from April 1, 2003 the Company’s shares began to be quoted on the Pink Sheets under the symbol
"MXB."MXBT.PK.The Company
hasis currently examining the possibility of terminating the registration of its ordinary shares under the Securities Exchange Act of 1934, hence ceasing its reporting obligations to the Securities Exchange Commission. The Company will make the required notifications and filings in accordance with the course of action that it shall adopt. It should be noted that if the Company will terminate the registration of its ordinary shares, certain information regarding the Company would nopresent intentionlonger be available nor would it continue tolist or quotebe in itssecuritiescurrent form. Nevertheless, if registration is terminated, the Company will continue to be a public company under the Israeli Companies Law, and as such would still be required to prepare annual financial statements, have External Directors serving onany markets outsideits Board and Audit Committee, and all other requirements as detailed under the Company’s Law regarding public companies.55
C. Plan of Distribution
Not applicable.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the
United States. However, the Company may seek such listings in the future if its BoardIssueNot applicable.
Item 10. Additional Information
A. Share Capital
Not applicable.
B. Memorandum and Articles of
Directors determines that it is in the best interest of the Company. Possibility of De-Listing At present, the Company may not be in compliance with certain continued listing standards required by the American Stock Exchange, although no assertion has been made by the American Stock Exchange as such, nor has the American Stock Exchange contacted the Company whatsoever about any de-listing. Any such de-listing of the shares would result in a possible absence of a liquid trading market for the Company's Ordinary Shares. D. Not applicable E. Not applicable ITEM 10. ADDITIONAL INFORMATION A. Not applicable B. MEMORANDUM AND ARTICLES OF ASSOCIATIONAssociationMarnetics Broadband Technologies Ltd. is an Israeli company registered with the Israel Registrar of Companies, registration no. 520004389-4.
On
September 14, 2001November 26, 2002, at the annual general meeting of shareholders, the shareholders of the Company amended Article2999 of the Articles of Association of the Companyregardingto provide to thetimeframe for the fixing of the record date by 39the Board of Directors to at least four (4) but not more than forty (40) days prior to a shareholders meeting, or such other timeframe, asfullest extent allowedby the Regulationsunder Israeli Companies Law(Allowancesa change of language to provide provisions which endeavor to limit personal liability of an office holder towards the Company and shareholders regarding insurance coverage, indemnification and exemption fromPublic Companies Whose Shares are Listed for Trade Outsideduty ofIsrael) - 2000 (the "Regulations") there under or its successor statute.care. This amendment to the Articles of Association is included as an exhibit as revised articles of association tothisthe annual report on Form20-F. See "ITEM 19 - EXHIBITS". PURPOSES AND OBJECTS OF THE COMPANY20-F for the fiscal year ended December 31, 2002.Purposes and Objects of the Company
Pursuant to Section 3 of our Articles of Association, the
Company'sCompany’s purpose is to operate according to business considerations for the production of profits.POWERS OF THE DIRECTORSPowers of the Directors
The Directors shall formulate the
Company'sCompany’s policy and shall supervise the exercise of the GeneralManager'sManager’s office and his acts, including, but not limited to the determination of theCompany'sCompany’s plans of activity, the principles for financing such plans and the organizational structure of the Company.The power of our directors to vote on a proposal, arrangement or contract in which the director is materially interested is limited by the relevant provisions of the Companies Law.
RIGHTS ATTACHED TO SHARESRights Attached to Shares
Our registered share capital consists of a single class of 25,000,000 Ordinary Shares, par value NIS 0.08 per share, of which 7,362,390 Ordinary Shares were issued and outstanding as of June
30, 2002.2003. All outstanding Ordinary Shares are validly issued, fully paid and non-assessable. The rights attached to the Ordinary Shares are as follows:DIVIDEND RIGHTS56
Dividend Rights
Subject to the permitted distribution provisions of the Companies Law, the Board of Directors may declare a dividend to be paid to the shareholders according to their rights and interests in the profits, and may fix the record date for eligibility and the time for payment.
Subject to any preferential, deferred, qualified or other rights, privileges or conditions attached to any special class of shares with regard to dividends, the profits of the Company available for dividend and resolved to be distributed shall be applied in payment of dividends upon the shares of the Company in proportion to the amount paid up or credited as paid up per the nominal value thereon respectively.
The Board of Directors may from time to time pay to the shareholders on account of the next forthcoming dividend such interim dividends as, in their judgment, the position of the Company justifies.
VOTING RIGHTSVoting Rights
Holders of our Ordinary Shares have one vote for each ordinary share held on all matters submitted to a vote of shareholders. Such voting rights may be affected by the grant of any special voting rights to the holders of a class of shares with preferential rights that may be authorized in the future. The quorum required for any meeting of shareholders consists of at least two shareholders present in person or by proxy who hold or represent, in the aggregate, at least one third of the voting rights of the issued share capital. In the event that a quorum is not present within fifteen minutes of the scheduled time, the
shareholders'shareholders’ meeting will be adjourned to the same day in the following week, or such time and place as the board of directors may determine. If at such reconvened meeting a quorum is not present within half an hour from the time appointed for holding the meeting, any two shareholders present in person or by proxy will constitute a quorum.40Notwithstanding the aforesaid, if a General Meeting was convened at the demand of shareholders as permitted by Section 63(b) of the Companies Law, then a quorum at such adjourned meeting shall be present only if one or more shareholders are present who held in the aggregate at least 5% of the issued share capital of the Company and at least 1% of the voting rights in the Company or one or more shareholders who hold in the aggregate at least 5% of the voting rights in the Company.
Subject to the Companies Law, except decisions regarding the amendment of Article 101 of our Articles Association and/or the approval of transactions with interested parties (as listed in our Articles of Associations), any resolution at a General Meeting shall be deemed adopted if approved by the holders of a majority of the voting rights in the Company represented at the meeting in person or by proxy and voting thereon.
The Directors of the Company are appointed by the Annual General Meeting, unless appointed by the Board to fill a vacancy, and shall serve as Directors from the time of appointment until the next Annual General Meeting, unless such Director is disqualified for whatever reason.
RIGHTS IN THE EVENT OF LIQUIDATIONRights in the Event of Liquidation
If the Company shall be liquidated, whether voluntarily or otherwise, the liquidators may, subject to the provision of the Statutes, divide among the shareholders any part of the assets of the Company and may vest any part of the assets of the Company in trustees upon such trusts, for the benefit of the shareholders, as the liquidators deem appropriate.
CHANGING RIGHTS ATTACHED TO SHARESChanging Rights Attached to Shares
If, at any time, the share capital is divided into different classes of shares, the rights attached to any class may be varied with the sanction of a majority vote at a meeting of the shareholders passed at a separate meeting of the holders of the shares of the class.
GENERAL MEETINGS57
General Meetings
An Annual General Meeting shall be held at least once in every calendar year at such time, not being more than fifteen months after the holding of the last preceding Annual General Meeting, and at such time and place as may be determined by the Board of Directors. Such Annual General Meetings shall be called
"Annual Meetings"“Annual Meetings”, and all other Meetings of the shareholders shall be called"Extraordinary Meetings"“Extraordinary Meetings”. The Annual Meeting shall receive and consider theDirectors'Directors’ Report, the Financial Statements, appoint auditors, elect Directors, and transact any other business which, under these Articles or by the Companies Law, may be transacted at a General Meeting of the Company, provided that notice of such other business was given to shareholders in accordance with the provisions of the Articles.At least twenty-one (21) days and not more than sixty (60) days notice of any General Meeting shall be given, specifying the place, the day and the hour of meeting and, in the case of special business, the nature of such business, shall be given in the manner hereinafter mentioned, to such shareholders as are under the provisions of the Articles, entitled to receive notices from the Company.
An Extraordinary Meeting may be convened by the Board of Directors, whenever they think fit or upon a demand in writing by members holding at least 10% of our issued capital.
INCREASE IN OUR CAPITALLimitations on Foreign Shareholders to Hold or Exercise Voting Rights
There are no limitations on foreign shareholders in our articles of association. Israeli law restricts the ability of citizens of countries that are in a state of war with Israel to hold shares of Israeli companies.
Approval of Transactions under Israeli Law
The Companies Law imposes fiduciary duties that “office holders,” including directors and executive officers, owe to their company. An office holder’s fiduciary duties consist of a duty of care and a duty of loyalty. The duty of care generally requires an office holder to act with the level of care which a reasonable office holder in the same position would have acted under the same circumstances. The duty of loyalty generally requires an office holder to act in good faith and for the good of the company. Specifically, an office holder must avoid any conflict of interest between the office holder’s position in the company and his or her other positions or personal affairs. In addition, an office holder must avoid competing against the company or exploiting any business opportunity of the company for his or her own benefit or the benefit of others. An office holder must also disclose to the company any information or documents relating to the company’s affairs that the office holder has received due to his or her position in the company. The term “office holder” includes any person who, either formally or in substance, serves as a director, general manager or chief executive officer, or who reports directly to the general manager or chief executive officer. Each person listed in the table under “Item 6. Directors, Senior Managers and Employees—A. Directors and Senior Management” above is an “office holder” of the Company.
Under the Companies Law, all arrangements as to compensation of office holders who are not directors require approval of the board of directors and, in certain cases, the prior approval of the audit committee. Arrangements as to compensation of directors also require audit committee and shareholder approval.
The Companies Law requires that an office holder promptly disclose any personal interest that he or she may have, and all related material information known to him or her, in connection with any existing or proposed transaction by the company. A personal interest of an office holder includes a personal interest of the office holder’s relative or a corporation in which the office holder or the office holder’s relative is a 5% or greater shareholder, director or general manager or has the right to appoint at least one director or the general manager. The office holder’s duty to disclose shall not apply in the event that the personal interest only results from a personal interest of the office holder’s relative in a transaction that is not an extraordinary transaction. An extraordinary transaction is a transaction not in the ordinary course of business, not on market terms, or likely to have a material impact on the company’s profitability, assets or liabilities.
Under the Companies Law, once the office holder complies with the above disclosure requirement, the board of directors is authorized to approve the transaction, unless the articles of association provide otherwise. A transaction that is adverse to the company’s interest may not be approved. If the transaction is an extraordinary transaction, then it also must be approved by the company’s audit committee and board of directors, and, under certain circumstances, by the shareholders of the company. Generally, when an extraordinary transaction is considered by the audit committee and board of directors, the interested directors may not be present or vote.
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Duties of Shareholders
Under the Companies Law, the disclosure requirements that apply to an office holder also apply to a controlling shareholder of a public company. A controlling shareholder is a shareholder who has the ability to direct the activities of a company, including a shareholder that owns 25% or more of the voting rights if no other shareholder owns more than 50% of the voting rights, but excluding a shareholder whose power derives solely from his or her position on the board of directors or any other position with the company. Extraordinary transactions with a controlling shareholder or in which a controlling shareholder has a personal interest, and the engagement of a controlling shareholder as an office holder or employee, generally require the approval of the audit committee, the board of directors and the shareholders. The shareholder approval must include at least one-third of the shares of non-interested shareholders voted on the matter. However, the transaction can be approved by shareholders without this one-third approval if the total shares of non-interested shareholders voted against the transaction do not represent more than one percent of the voting rights in the company.
In addition, under the Companies Law, each shareholder has a duty to act in good faith toward the company and other shareholders and to refrain from abusing his or her power in the company, such as in shareholder votes. In addition, specified shareholders have a duty of fairness toward the company. These shareholders include any controlling shareholder, any shareholder who knows that it possesses the power to determine the outcome of a shareholder vote and any shareholder who, pursuant to the provisions of the articles of association, has the power to appoint an office holder or any other power with respect to the company. However, the Companies Law does not define the substance of this duty of fairness.
Increase in Our Capital
The Company may from time to time by a majority vote at a meeting of shareholders, whether all the shares for the time being authorized shall have been issued or all the shares for the time being issued shall have been fully called up or not, increase its share capital by the creation of new shares.
41C.
MATERIAL CONTRACTS Software license agreement by and between Marnetics Ltd. and Speedwise Technologies Ltd. dated as of April 17, 2001. See "ITEM 4B - BUSINESS OVERVIEW - LICENSING ARRANGEMENTS." Indemnification agreement between Dov Strikovsky, the Company and the former shareholders of Marnetics Ltd. dated as of June 30, 2001. See "ITEM 7B - MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS - RELATED PARTY TRANSACTIONS - INDEMNIFICATION BY SIGNIFICANT SHAREHOLDER."Material ContractsServices agreement with Netlogic Ltd., a company under the control of Mr. Menachem Reinschmidt, Director and
CEOChairman of the Company effective December 2, 2001, dated February 11,2002. See "ITEM2002, and (ii) an Addendum to the Services agreement dated December 2, 2002 until June 2, 2003, a Second Addendum to the Services agreement for an additional period through December 31, 2003 and an extension until March 31, 2004. (See “Item 7B -MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS-RELATED PARTY TRANSACTIONS." AssetMajor Shareholders and Related Party Transactions – Related Party Transactions.”)Mr. Reinschmidt and Mr. Sheetrit are receiving contingent compensation for the continued support of the Company’s Legal Proceedings of 9% each of any amounts awarded to the Company and/or its subsidiary, Marnetics Ltd in its action against the Municipality of Hod Hasharon. (See“Item 7.B. Related Party Transactions –Compensation for Coninued Support of Company’s Legal Proceedings.”)
Amendment to the asset purchase agreement
between the Company and Idan Millennium Investments and Assetsdated as of June 10, 2001 (Effective March 31, 2001). See "ITEM 8B - SIGNIFICANT CHANGES - SALE OF ELECTRICAL BUSINESS." Amendment to the asset purchase agreementbetween the Company and Idan Millennium Investments and Assets dated as of May 6, 2002.See "ITEM(See“Item 8B- - SIGNIFICANT CHANGES - SALE OF ELECTRICAL BUSINESS." Agreements to the assignment– Significant Changes – Sale ofdebt by and amongElectrical Business.”)Until September 2000 the Company
Bank Hapoalim Ltd.held 33.6% of the outstanding shares of Speedwise Technologies Ltd (“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in the Company’s holdings to 19.19% andShlavor Systems Ltd. dated asduring February 2001 additional shares were issued to third parties resulting in a further dilution to 14.73%. In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration ofMay 9, 2001. See "ITEMcash and shares. Since then Speedwise has ceased operations but still owns the shares of the third party. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investment in Speedwise at $60,000 and recorded an impairment charge of $522,000. For the year ended December 31, 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares will be recorded in the year in which monies are actually received. (See“Item 18 - Consolidated Financial Statements December 31, 2003”); also (See -”Item 7B -MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONSMajor Shareholders and Related Party Transactions – Related Party Transactions.”)59
Inter Company Loan Agreement between the Company and Marnetics where as Marnetics Ltd will grant the Company a loan of up to $500,000 dated September 2002. (See“Item 7B -
RELATED PARTY TRANSACTIONS - ASSIGNMENT OF BANK DEBT."Major Shareholders and Related Party Transactions – Related Party Transactions.”)In March 2002, Marnetics signed a distribution agreement with Magalcom Communications & Computers Ltd. to become a non–exclusive distributor of Marnetics products in Israel. The agreement has terminated during June 2003. (See“Item 8B – Significant Changes” regarding negotiations to sell Marnetics to Magalcom.)
D.
CURRENCY EXCHANGE CONTROLS The IsraeliCurrencyControl Law, 1978, imposes certain limitations concerningExchange ControlsSince January 1, 2003, all exchange control restrictions imposed by the State of Israel have been removed, although there are still reporting requirements for foreign currency
transactions and transactions between Israeli and non-Israeli residents, which limitations may be regulated or waived by the Controller of Foreign Exchange at the Bank of Israel, through "general" and "special" permits. In May 1998, a new "general permit" was issuedtransactions. However, legislation remains in effect pursuant to whichsubstantially all transactions in foreigncurrency controls can be imposed by administrative action at any time. Nonresidents of Israel who purchase our ordinary shares arepermitted. Anyable to receive any dividendsor other distributions paid in respect of Ordinary Shares andthereon (and any amounts payable upon the dissolution, liquidationorand winding up of ouraffairs, as well as the proceeds of any sale in Israel of our securities to an Israeli resident areaffairs) freely repatriableintoin non-Israelicurrencies at the rate of exchange prevailing at the time of conversion,currency, provided that Israeli income tax has been paid or withheld on(or withheld from)suchpayments.amounts. (See -“Item 10.E. Additional Information - Taxation - Taxation of Non-Resident Shareholders.”)Non-residents of Israel may freely hold and trade our ordinary shares, and the proceeds of sale thereof are not subject to Israeli currency control restrictions. Neither our Memorandum of Association, Articles of Association nor the laws of the State of Israel restrict in any way the ownership or voting of shares by non-residents, except with respect to subjects of countries that in a state of war with Israel.
TaxationE.
TAXATION ISRAELI TAXATIONTaxationThe following is a
shortsummary of the material Israeli and United States tax consequences, Israeli foreign exchange regulations and certain Israelitax consequences to persons holding our ordinary shares. The discussion is not intended and should not be construed as legal or professional tax advice and is not exhaustive of all possible tax considerations. Nonresidents of Israel are subject to income tax on income accrued or derived from sources in Israel or received in Israel. These sources of income include passive income such as dividends, royalties and interest, as well as non-passive income from services rendered in Israel. The Company is required to withhold income tax at the rate of 25% (15% for dividends generated by an Approved Enterprise) on all distributions of dividends other than bonus shares (stock dividends), unless a different rate is provided in a treaty between Israel and the shareholder's country of residence. Under the income tax treaty between the United States and Israel (the "Treaty"), the maximum tax on dividends paid to a holder of ordinary shares who is a U.S. resident (as defined in the Treaty) is 25%. 42Israeli law imposes a capital gains tax on the sale of securities and other capital assets. Under current law, however, gains from sales of the ordinary shares of the Company are exempt from Israeli capital gains tax for so long as (i) the shares are quoted on Nasdaq or listed on a stock exchange recognized by the Israeli Ministry of Finance and (ii) the Company qualifies as an Industrial Company or Industrial Holding Company under the Law for Encouragement of Industry (Taxes), 1969. In addition, under the Treaty, a holder of ordinary shares who is a U.S. resident will be exempt from Israeli capital gains tax on the sale, exchange or other disposition of such ordinary shares unless such holder owns, directly or indirectly, 10% or more of the voting power of the Israeli tax consequences to persons purchasing or holding Ordinary Shares.government programs affecting us. To the extent that the discussion is based on new tax or other legislation that has not been subject to judicial or administrative interpretation, there can be no assurance that the views expressed in the discussion will be accepted by the tax or other authorities in question. The discussion is not intended, and should not be construed, as legal or professional tax advice,andis not exhaustive of all possible taxconsiderations. Prospective purchasersconsiderations andholders of Ordinary Sharesshould not be relied upon for tax planning purposes. Each individual should consulttheirhis or her own taxadvisorsor legal advisor as to theU.S.,Israeli, United States or other tax consequences of the purchase, ownership and disposition ofthe Ordinary Shares,ordinary shares, including, in particular, the effect of any foreign, state or local taxes.GENERAL CORPORATE TAX STRUCTURE Currently,Tax Reform in Israel
On January 1, 2003 a comprehensive tax reform took effect in Israel. Pursuant to the
regular ratereform, resident companies are subject to Israeli tax on income accrued or derived in Israel or abroad. In addition, the concept ofcorporate“controlled foreign corporation’’ was introduced according to which an Israeli company may become subject to Israeli taxes on certain income of a non-Israeli subsidiary if the subsidiary’s primary source of income is passive income (such as interest, dividends, royalties, rental income or capital gains). The taxto whichreform also substantially changed the system of taxation of capital gains.General Corporate Tax Structure
Israeli companies are generally subject to corporate tax at the rate of 36% of their taxable income. However in our case, the rate is currently effectively reduced, as described below.
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On June 2, 2004, the Israel government introduced a bill to the Israel parliament proposing, among other things, changes to the corporate tax rate. The bill proposes to reduce the corporate tax rate from 36%
. TAXATION UNDER INFLATIONARY CONDITIONSto 35% for the 2004 tax year, 34% for the 2005 tax year, 32% for the 2006 tax year and 30% for the 2007 tax year and thereafter. In order to enact the bill as law, the bill must be approved by the Israel parliament and published. The bill might be modified prior to enactment or might not be enacted at all. Accordingly, we cannot predict the consequences of the bill to us.Special Provisions Relating to Measurement of Taxable Income
The Income Tax Law (Inflationary Adjustments), 1985, generally referred to as the “Inflationary Adjustments Law,
1985 (the "INFLATIONARY ADJUSTMENTS LAW"), was designed” represents an attempt toneutralizeovercome theerosion of capital investments in business andproblems presented topreventa traditional taxbenefits resulting from deduction of inflationary expenses. This law applies a supplementary set of inflationary adjustments to the normal taxable profits computed under regular historical cost principles.system by an economy undergoing rapid inflation. The Inflationary Adjustments Lawintroducedis highly complex. The material aspects to us can be described as follows:There is a special tax adjustment for the preservation of equity
based on changes in the Israeli consumer price index,whereby certain corporate assets are classified broadly into fixed,(inflation-resistant)inflation resistant, assets and non-fixed (soft) assets. Where acorporation'scompany’s equity,(asas defined inthe Inflationary Adjustments Law)law, exceeds the depreciated cost of fixed assets, ataxdeduction from taxable income that takes into account the effect of the applicable annual rate of inflation on such excess is allowed,(upup to a ceiling of 70% of taxable incomefor companiesin any single tax year, with the unused portion permitted to be carried forward on a linkedbasis, without limit). For income derived from state bonds or funds invested above 75% in state bonds, such ceiling is not used (100% is deducted).basis. If the depreciated cost of fixed assets exceedsshareholders'a company’s equity, then such excess multiplied by the applicable annual rate of inflationrate,is added to taxable income.CAPITAL GAINS TAXSubject to certain limitations, depreciation deductions on fixed assets and losses carried forward are adjusted for inflation based on the increase in the Israeli consumer price index (CPI).
Capital Gains Tax Applicable to Resident and Non-Resident Shareholders
Israeli law generally imposes a capital gains tax on the sale of capital assets located in Israel, including shares in Israeli resident companies, by both residents and non-residents of
Israel.Israel, unless a specific exemption is available or unless a treaty between Israel and the country of the non-resident provides otherwise. Regulations promulgated under the Israeli Income Tax Ordinance provided for an exemption from Israeli capital gains tax for gains accrued before January 1, 2003 and derived from the sale of shares of “industrial companies’’ that are traded on specified non-Israeli markets, including Thegains generated by anNasdaq National Market, provided that the sellers purchased their shares either in the company’s initial public offering or in public market transactions thereafter. This exemption does not apply to shareholders who are in the business of trading securities, or to shareholders that are Israelicompany, which isresident companies subject to theInflationary AdjustmentsIncome Tax (Adjustments for Inflation) Law- 1985.On January 1, 2003, the Law for Amendment of the Income Tax Ordinance (Amendment No.132), 5762-2002, known as the Tax Reform, came into effect thus imposing capital gains tax at a rate of 15% on gains derived on or after January 1, 2003 from the
dispositionsale ofsecurities,shares in Israeli companies publicly traded on a recognized stock exchange outside of Israel. This tax rate does not apply to: (1) dealers in securities; (2) shareholders that report in accordance with the Income Tax Law (Inflationary Adjustment) - 1985; or (3) shareholders who acquired their shares prior to an initial public offering. The tax basis of shares acquired prior to January 1, 2003 will be determined in accordance with the average closing share price in the three trading days preceding January 1, 2003. Non-Israeli residents shall be exempt from Israeli capital gains tax on any gains derived from the sale of shares publicly traded on a stock exchange recognized by the Israeli Ministry of Finance provided such shareholders did not acquire their shares prior to an initial public offering. Notwithstanding the foregoing, dealers in securities in Israel are taxedaccordingat regular tax rates applicable to business income. In any event, the provisions of the tax reform shall not affect the exemption from capital gains tax for gains accrued before January 1, 2003, as described in the previous paragraph.61
In December 2003, regulations promulgated pursuant to the Tax Reform were amended so that, in certain circumstances, capital gains derived from the sale and subsequent (same day) repurchase of shares traded on the TASE or from shares of Israeli companies publicly traded on a recognized stock exchange or regulated market in a country that has a treaty for the prevention of double taxation with Israel, may be taxed at a rate equal to the withholding tax rate applicable to revenues derived from such
Law. Pursuantsale. In accordance with an announcement published by the Israeli Income Tax Commission, the withholding tax rate applicable to the sale of such shares until the end of the 2003 tax year, which was equal at such time to 1% of the revenues generated in their sale, was determined as the final tax rate applicable to such sale. The amended regulations also determined that the day of such sale and repurchase shall be considered the new date of purchase of such shares. The forgoing was not applicable to: (i) dealers in securities; (ii) shareholders that report in accordance with the Inflationary Adjustment Law; (iii) shareholders who acquired their shares prior to an initial public offering; (iv) in some cases, shareholders that received their shares within the framework of an employer-employee relationship; or (iii) shareholders claiming a deduction for financing expenses in connection with such shares. The amended regulations further provided that with respect to shares of Israeli companies traded in a stock exchange outside of Israel, the market price determined at the close of the trading day preceding the day of the sale and repurchase of such shares, shall constitute the new tax basis for any future sale of such shares.In addition, pursuant to the Convention Between the Government of the United States of America and the Government of Israel with Respect to Taxes on Income, as amended (the
"U.S.-ISRAEL TAX TREATY"“United States- Israel Tax Treaty”), the sale, exchange or disposition ofOrdinary Shares or redeemable warrantsordinary shares by a person who qualifies as a resident of the United States within the meaning of theU.S.-IsraelUnited States-Israel Tax Treaty and who is entitled to claim the benefits afforded to suchresidentperson by theU.S.-IsraelUnited States- Israel Tax Treaty("TREATY U.S. RESIDENT"(a “Treaty United States Resident”) generally will not be subject to the Israeli capital gains tax unless such TreatyU.S.United States Resident holds, directly or indirectly, shares representing 10% or more of our voting power during any part of the12-month12- month period preceding such sale, exchange ordisposition.disposition, subject to certain conditions. A sale, exchange or disposition ofOrdinary Shares or redeemable warrantsordinary shares by a TreatyU.S.United States Resident who holds, directly or indirectly, shares representing 10% or more of our voting power at any time during such preceding 12-month period would be subject to such Israelitax;tax, to the extent applicable; however, under theU.S.-IsraelUnited States-Israel Tax Treaty, such TreatyU.S.United States Resident would be43permitted to claim a credit for such taxes against the U.S.United States federal income tax imposed with respect to such sale, exchange or disposition, subject to the limitations in United States laws applicable to foreign tax credits.TAXATION OF NON-RESIDENTSThe United States-Israel Tax Treaty does not relate to United States state or local taxes.Taxation of Non-Resident Shareholders
Non-residents of Israel are subject to Israeli income tax on income accrued or derived from sources in
Israel.Israel, including passive income such as dividends, royalties and interest. On distributions of dividends, other than bonus shares(stock dividends),and stock dividends, income tax at the rate of 25% (12.5% for dividends not generated by an approved enterprise if the non-resident is a United States corporation and holds 10% or more of our voting power throughout a certain period, and 15% for dividends generated by an approved enterprise) is withheld at the source, unless a different rate is provided in a treaty between Israel and theshareholder'sshareholder’s country of residence.The U.S.-IsraelUnder the United States- Israel Tax Treaty,provides for athe maximum taxof 25%on dividends paid to a holder of ordinary shares who is a TreatyU.S.United States Residentand for awill be 25%, however, under the Investment Law, dividends generated by an approved enterprise are taxed at the rate of12.5%15%.Under a recent amendment to the Inflationary Adjustments Law, non-Israeli corporations might be subject to Israeli taxes on
dividendsthe sale of traded securities in an Israeli company, subject to the provisions of any applicable double taxation treaty.Foreign Exchange Regulations
Dividends, if any, paid to the holders of the ordinary shares, and any amounts payable upon dissolution, liquidation or winding up, as well as the proceeds of any sale in Israel of the ordinary shares to an Israeli resident, may be paid in non-Israeli currency or, if paid in Israeli currency, may be converted into freely repatriable dollars at the rate of exchange prevailing at the time of conversion.
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United States Federal Income Taxes
The following summary sets forth the material United States federal income tax consequences applicable to the following persons who purchase, hold or dispose of ordinary shares (“U.S. Shareholders”): (i) citizens or residents (as defined for United States federal income tax purposes) of the United States; (ii) corporations or other entities taxable as corporations created or organized in or under the laws of the United States or any state thereof; (iii) estates, the income of which is subject to United States federal income taxation regardless of its source; and (iv) trusts, if (a) a United States
corporationcourt is able to exercise primary supervision over its administration, and (b) one or more United States persons have the authority to control all its substantial decisions. This discussion is based on the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), United States Treasury Regulations promulgated there under and administrative and judicial interpretations thereof, all as in effect as of the date of this Annual Report on Form 20-F. This discussion generally applies only to U.S. Shareholders thatholdswill hold the ordinary shares as capital assets and does not consider (a) all aspects of U.S. federal income taxation that may be relevant to particular U.S. Shareholders by reason of their particular circumstances (including potential application of the alternative minimum tax), (b) special treatment under the United States federal income tax laws applicable to such persons as financial institutions, insurance companies, broker-dealers, tax-exempt organizations and foreign individuals or entities, (c) the special rules applicable to U.S. Shareholders owning, directly or by attribution, 10% or more of our outstanding voting shares, (d) the special rules applicable to U.S. Shareholders who hold the ordinary shares as part of a hedging, straddle or conversion transaction, (e) the special rules applicable to U.S. Shareholders who acquire ordinary shares in a compensatory transaction, (f) the special rules applicable to U.S. Shareholders whose functional currency is not the dollar, and (g) any aspect of state, local or non-United States tax law. Accordingly, each investor should consult his or her own tax advisor as to the particular tax consequences to him or her of an investment in ordinary shares, including the effects of applicable state, local or foreign tax laws and possible changes in the tax laws.Dividends Paid on Ordinary Shares
A U.S. Shareholder generally will be required to include in gross income as ordinary dividend income the amount of any distributions in respect of ordinary shares (including the amount of any Israeli taxes withheld there from) to the extent that such distributions are paid out of our current or accumulated earnings and profits, as determined for United States federal income tax purposes. Distributions in excess of such earnings and profits will be treated first as a non-taxable return of capital reducing the U.S. Shareholder’s tax basis in his, her or its ordinary shares to the extent of the
Israeli company. PROPOSED TAX REFORM On June 12, 2002,distributions, and then as capital gain from a deemed sale or exchange of such ordinary shares. Such dividends generally will not qualify for therecommendationsdividends received deduction available to corporations. The amount ofa tax reform committee (the "Rabinovich Committee") were published. The Governmentany cash distribution in respect ofIsrael decidedordinary shares paid ina meeting on June 16, 2002 to adoptNIS will equal therecommendationsUnited States dollar value of theRabinovich Committee.distribution, calculated by reference to the exchange rate in effect on the date of the distribution.Subject to certain conditions and limitations, any Israeli tax withheld or paid with respect to dividends on the ordinary shares will be eligible for credit against a U.S. Shareholder’s United States federal income tax liability at such U.S. Shareholder’s election. The Code provides limitations on the amount of foreign tax credits that a U.S. Shareholder may claim, including extensive separate computation rules, under which foreign tax credits allowable with respect to specific categories of income cannot exceed the United States federal income taxes otherwise payable with respect to each such category of income. U.S. Shareholders that do not elect to claim a foreign tax credit may instead claim a deduction for Israeli
Ministryincome tax withheld or paid, but only for a year in which these U.S. Shareholders elect to do so for all foreign income taxes. Dividends with respect to the ordinary shares generally will be classified as foreign-source “passive income” for the purpose ofFinance announcedcomputing a U.S. Shareholder’s foreign tax credit limitations for United States foreign tax credit purposes. The rules relating to foreign tax credits are complex and you should consult your tax advisor to determine whether and if you would be entitled to this credit.Disposition of Ordinary Shares
The sale or exchange of ordinary shares generally will result in the recognition of capital gain or loss in an amount equal to the difference between the amount realized on the sale or exchange and the U.S. Shareholder’s tax basis in the ordinary shares. Such gain or loss generally will be long-term capital gain or loss if the U.S. Shareholder’s holding period of the ordinary shares exceeds one year at the time of the disposition. Gain or loss recognized by a U.S. Shareholder on a sale or exchange of ordinary shares generally will be treated as United States-source income or loss for United States foreign tax credit purposes. Under the tax treaty between the United States and Israel, gain derived from the sale, exchange or other disposition of ordinary shares by a holder who is a resident of the United States for purposes of the treaty and who sells the ordinary shares within Israel may be treated as foreign-source income for United States foreign tax credit purposes.
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Passive Foreign Investment Company Status
Generally, a foreign corporation is treated as a passive foreign investment company (“PFIC”) for United States federal income tax purposes for any tax year if, in such tax year, either (i) 75% or more of its
intentions to bringgross income is passive in nature (the “Income Test”), or (ii) therecommendationsaverage percentage of its assets during such tax year which produce, or are held forapprovalthe production of, passive income (determined by averaging theIsraeli Parliament bypercentage of the fair market value of its total assets which are passive assets as of the end ofJuly 2002. The recommendations deal with a numbereach quarter ofsubjects: reductionsuch year) is 50% or more (the “Asset Test”).Because less than 75% of our gross income in 2002 and in prior years constituted passive income, as defined for purposes of the
directIncome Test, we do not believe that application of the Income Test would have resulted in our classification as a PFIC for any of such years. In addition, we do not believe that application of the Asset Test would have resulted in our classification as a PFIC for any taxrateyear prior to 2001. For 2001 and 2002, however, it is possible that we could be classified as a PFIC under the Asset Test principally because a significant portion ofindividualour assets continued to consist of the cash raised in connection with the two public offerings of our ordinary shares in 1999, coupled with the decline in the public market value of our ordinary shares during 2001 and 2002 and the timing of the required valuations, although there is no definitive method prescribed in the Code, United States Treasury Regulations or administrative or judicial interpretations thereof for determining the value of a foreign corporation’s assets for purposes of the Asset Test. While the legislative history of the United States Taxpayer Relief Act of 1997 indicates that “the total value of a publicly-traded foreign corporation’s assets generally will be treated as equal to the sum of the aggregate value of its outstanding stock plus its liabilities”, there remains substantial uncertainty regarding the valuation of a publicly-traded foreign corporation’s assets for purposes of the Asset Test, and it is arguable that under alternative valuation methodologies, the value of our total assets as of the relevant valuation dates in 2001 and/or 2002 would not result in our classification as a PFIC during either or both of such years.In view of the uncertainty regarding the valuation of our assets for purposes of the Asset Test and the complexity of the issues regarding our treatment as a PFIC for 2001, 2002 and, quite possibly, subsequent years, U.S. Shareholders are urged to consult their own tax advisors for guidance as to our status as a PFIC. For those U.S. Shareholders who determine that we were a PFIC for 2001, 2002 and/or any subsequent years and notify us in writing of their request for the information required in order to effectuate the QEF Election described below, we will promptly make such information available to them.
If we are treated as a PFIC for United States federal income tax purposes for any year during a U.S. Shareholder’s holding period of ordinary shares and the U.S. Shareholder does not make a QEF Election or a “mark-to-market” election (both as described below), any gain recognized by the U.S. Shareholder upon the sale of ordinary shares (or the receipt of certain distributions) would be treated as ordinary income. This income would be allocated over the U.S. Shareholder’s holding period with respect to his ordinary shares and an interest charge would be imposed on the amount of deferred tax on the income allocated to prior taxable years.
Although we generally will be treated as a PFIC as to any U.S. Shareholder if we are a PFIC for any year during the U.S. Shareholder’s holding period, if we cease to satisfy the requirements for PFIC classification, the U.S. Shareholder may avoid the consequences of PFIC classification for subsequent years if he elects to recognize gain based on the unrealized appreciation in the ordinary shares through the close of the tax year in which we cease to be a PFIC. Additionally, if we are treated as a PFIC, a U.S. Shareholder who acquires ordinary shares from a decedent would be denied the normally available step-up in tax basis for these ordinary shares to fair market value at the date of death and instead would have a tax basis equal to the decedent’s tax basis in these ordinary shares.
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A U.S. Shareholder who beneficially owns shares of a PFIC must file Form 8621 (Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund) with the United States Internal Revenue Service for each tax year in which he holds shares in a PFIC. This form describes any distributions received with respect to these shares and any gain realized upon the disposition of these shares.
For any tax year in which we are treated as a PFIC, a U.S. Shareholder may elect to treat his, her or its ordinary shares as an interest in a qualified electing fund (a “QEF Election”), in which case, the U.S. Shareholder would be required to include in income currently his, her or its proportionate share of our earnings and profits in years in which we are a PFIC regardless of whether distributions of our earnings and profits are actually distributed to the U.S. Shareholder. Any gain subsequently recognized upon the sale by the U.S. Shareholder of his ordinary shares, however, generally would be taxed as capital
markets,gain and the denial of the basis step-up at death described above would not apply.As an alternative to a QEF Election, a U.S. Shareholder generally may elect to mark his ordinary shares to market annually, recognizing ordinary income or loss (subject to certain limitations) equal to the difference between the fair market value of his ordinary shares and the adjusted tax basis of his ordinary shares. Losses would be allowed only to the extent of net mark-to-market gain accrued under the election. If a mark-to-market election with respect to ordinary shares is in effect on
incomethe date of a U.S. Shareholder’s death, the normally available step-up in tax basis to fair market value will not be available. Rather, the tax basis of the ordinary shares in the hands of a U.S. Shareholder who acquired them fromoutside Israel, cancellationa decedent will be the lesser ofexemptionsthe decedent’s tax basis or the fair market value of the ordinary shares.The implementation of many aspects of the Code’s PFIC rules requires the issuance of regulations which in many instances have yet to be promulgated and
encouragement of business and technology entrepreneurship.which may have retroactive effect. We cannot becertain whether the proposed reformsure that any of these regulations will beadopted, when itpromulgated or, if so, what form they willbe adoptedtake or whatformeffect they will have on the foregoing discussion. Accordingly, and due to the complexity of the PFIC rules, U.S. Shareholders should consult their own tax advisors regarding our status as a PFIC for 2001, 2002 and anyreform will ultimately take.subsequent years and the eligibility, manner and advisability of making a QEF Election or a mark-to-market election if we are treated as a PFIC.For information with respect to the applicability of Israeli capital gains taxes on the sale of ordinary shares by United States residents, see“Capital Gains Tax Applicable to Resident and Non-Resident Shareholders,” above.
F. Dividends and Paying Agents
Not
applicableapplicable.G. Statement of Experts
Not
applicableapplicable.H.
DOCUMENTS ON DISPLAYDocuments on DisplayThe Company (formerly named Stav Electrical Systems (1994) Ltd.) is subject to certain of the informational requirements of the Securities Exchange Act of 1934 and the rules and regulations promulgated there under and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission. Reports, proxy statements and other information filed by the Company may be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N. W., Washington, D. C. 20549 and at the Regional Offices thereof at 233 Broadway, New York, New York and at 175 West Jackson Boulevard, Suite 900, Chicago, Illinois. Copies of such information can be obtained by mail from the Public Reference Section of the Commission at 450 Fifth Street, N. W., Washington, D. C. 20549 at prescribed rates. As a foreign private issuer, we became subject to the electronic filing requirements of Regulation S-T under the federal securities laws of the United States on November 4, 2002. Certain of our filings are available on the SEC’s website athttp://www.sec.gov. In addition,
beginning in July 2001we are not required under theCompany began filing itsExchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as United States companies whose securities are registered under the Exchange Act.65
You may request a copy of our U.S. Securities and Exchange Commission
electronicallyfilings, at no cost, by writing or calling us at Marnetics Broadband Technologies Ltd., 10 Hayetzira Street, Ra’anana 43000, Israel, Attention: Mr. David Sheetrit, Chief Executive Officer, telephone: ++ 972-9-7616868. A copy of each report submitted in accordance with applicable United States law is available for public review at our principal executive offices.A copy of each document concerning Marnetics Broadband Technologies Ltd. that is referred to in this Annual Report on Form 20-F, is available for public view at our principal executive offices at Marnetics Broadband Technologies Ltd., 10 Hayetzira Street, Ra’anana 43000, Israel.
I. Subsidiary Information
Not Applicable.
The Company is exposed to various market risks, including but not limited to risks deriving from changes in interest rates and inflation rates and changes in the exchange rate of the NIS against foreign currencies.
Interest Rate Risk. At December 31,
2001,2003, the Company had cash and cash equivalents in the aggregate amount of$2.4 million,$234,000 deposited primarily in major Israeli banks. These amounts accrue or bear nominal interest based on U.S. dollar interest rate and NIS interest rate.Foreign Currency Exchange Risks.At December 31,
2001, 93%2003, more than 95% of the cash and cash equivalent were deposits denominated in NIS and linked to the US dollar exchange rate.Only 15%Less than 5% of theCompany'sCompany’s current assets were cash deposits denominated inNIS in the aggregate amount of $0.4 44million.NIS. These amounts as presented in U.S. dollars may be affected by changes in the exchange rate between NIS and the U.S. dollars.Fair value of financial instruments. The financial instruments of the Company consist
primarilymainly of cash and cash equivalents, current accounts receivable, accounts payable andaccounts payable. In view of their nature,accruals. Due to the relatively short period to maturity, the fair value of the financial instruments included in theCompany'sworking capitalis usually identical or close toof the Company approximates their carryingamount. ITEMamounts.Not applicable.
Item 13. Defaults, Dividend Arrearage and Delinquencies
None.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds
None.
Item 15. Controls and Procedures
(a) We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in our periodic filings with the SEC is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms relevant to our Company. Within 90 days prior to the filing date of this Annual Report on Form 20-F, we have carried out an evaluation, under the supervision and with the participation of our management, including our active chairman of the board and chief financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based upon that evaluation, acting chief executive officer and acting chief financial officer after evaluating the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended) as of December 31, 2003, have concluded that, as of such date, our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the periods specified by the SEC’s rules and forms.
66
(b) There were no significant changes in our internal controls or in other factors that could significantly affect these controls subsequent to the date of the evaluation, nor were there any significant deficiencies or material weaknesses in our internal controls requiring corrective actions.
Item 16A. Audit Committee Financial Report
Our audit committee did have an audit committee financial expert, Mr. George Balot, as defined by Item 401(h) of the SEC’s Regulation S-K until June 2003, at which time Mr. Balot resigned from the audit committee to become the Acting Chief Financial Officer of the Company, effective June 15, 2003.
Under Israeli Companies Law every public company is required to retain the services of an independent internal auditor. Therefore, our Company continued to make use of the services of Mr. Yossi Barak, an Israeli CPA/MBA, whose has an understanding of generally accepted accounting principles and financial statements, who has the ability to assess the general application of such principles in connection with the accounting for estimates, accruals and reserves; experience preparing, auditing, analyzing or evaluating financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that can reasonably be expected to be raised by the registrant’s financial statements; and an understanding of internal control over financial reporting.
The Company did not formally adopt a Code of Ethics and Business Conduct that apply to all our directors, officers and employees, including our principal executive officer and principal financial officer.
The Company began formulating its Code of Ethics and Business Conduct in the latter half of year 2003 to meet the SEC requirements. In the second quarter of year 2004, the Company began serious negotiations for the sale of the Company and anticipated ceasing its SEC reporting requirements. If negotiations with spotential purchaser do not materialize the Company will request permission to cease filing reports with the SEC.
Item 16C. Principal Accounting Fees and Services
YEAR ENDED DECEMBER 31, 2003
YEAR ENDED DECEMBER 31, 2002
AMOUNT
($ IN THOUSANDS)
PERCENTAGE
AMOUNT
($ IN THOUSANDS)
PERCENTAGE
Audit Fees
8,800
88%
11,189
90.3
%
Tax Fees
1,200
12%
1,200
9.7
%
Notes:
Comprises audit and tax fees to Brightman Almagor, independent public accountants in Israel, a member of Deloitte Touche Tohmatsu. These fees include fees paid for both the Company and its subsidiary Marnetics Ltd.
Audit fees consist of services that would normally be provided in connection with statutory and regulatory filings or engagements, including services that generally only the independent accountant can reasonably provide.
67
Audit-related fees relate to assurance and associated services that traditionally are performed by the independent auditor, including: accounting consultation and consultation concerning financial accounting and reporting standards.
Pre-approval Policies and Procedures: Any services provided by Brightman Almagor that are not specifically included within the scope of the audit must be pre-approved by our audit committee prior to any engagement. None of the fees paid to Brightman Almagor were approved pursuant to a de minimus exception.
ITEM
13. DEFAULTS, DIVIDEND ARREARAGE AND DELINQUENCIES16D. Exemptions from Listing Requirements of Audit CommitteeNot yet applicable to the Registrant.
ITEM
14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS16E.Purchase of Equity Securities by Issuer and Affiliated PurchasersNot yet applicable
ITEM 15. [RESERVED] ITEM 16. [RESERVED]to the RegistrantItem 17.
FINANCIAL STATEMENTS.Financial Statements.Not applicable. The Company has elected to furnish financial statements pursuant to Item 18 below.
ITEMItem 18.
FINANCIAL STATEMENTS.Financial Statements.The Consolidated Financial Statements and related notes required by this item are
contained on pagesfound at the end of this Annual Report, F-1through F-18.to F-19.INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
INDEX TO CONSOLIDATED FINANCIAL STATEMENTSPage
- ------------------------------------------ ------------Report of Independent Public Accountants...................................AccountantsF-2
Consolidated Balance Sheets as of December 31, 20012003 and2000...............2002F-3
Consolidated Statements of Operations or the years ended December 31, 2001, 20002003, 2002, and19992001 and for the cumulative period from June 1, 1998 to December 31,2001........................................2003F-4
Statements of Changes in Shareholders'Shareholders’ Equity for the years ended December 31,2001, 20002003, 2002 and1999.........................................2001F-5
Statements of Consolidated Cash Flows for the years ended December 31, 2001, 20002003, 2002 and19992001 and for the cumulative period from June 1, 1998 to December 31,2001.....2003F-6 to F-8
Notes to the Financial Statements .........................................F-9 to F-18
45ITEMItem 19. EXHIBITS
1.1 Memorandum of Association of the Registrant (filed as Exhibit 3.1 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein). 1.2 Amended and Restated Articles of Associations of the Registrant (including revision for Amendment from September 14, 2001 reflected in amended wording to Article 29). 4.1 2001 Share Option Plan (incorporated by reference to Exhibit 4.1 to the Company's annual report on Form 20-F for year ended December 31, 2000). 4.2 Services agreement with Netlogic Ltd., a company under the control of Mr. Menachem Reinschmidt, Director and CEO of the Company, dated February 11, 2002. 8 List of subsidiaries (incorporated by reference to "Item 4 - Information on the Company - Organizational Structure" in this annual report on Form 20-F). 10.1 Form of officers' and directors' indemnification agreement (filed as Exhibit 10.3 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein). 10.2 Loan agreement between Bank Hapoalim Ltd. and the Registrant (filed as Exhibit 10.4 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein). 10.3 Promissory Note issued by Dov Strikovsky to the Company (filed as Exhibit 10.5 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein). 10.4 Share exchange agreement among Marnetics Ltd., its Shareholders and the Registrant dated as of May 31, 2000, as amended (filed as Exhibit 10.6 to Form 20-F for the year-ended December 31, 2000 and by this reference incorporated herein). 10.5 Indemnification agreement between Dov Strikovsky, the Company and the former shareholders of Marnetics Ltd. dated as of June 30, 2001 (incorporated by reference to Exhibit 10.5 to the Company's annual report on Form 20-F for year ended December 31, 2000). 10.6 Asset purchase agreement between the Company and Idan Millennium Investments and Assets Ltd. dated as of June 10, 2001 (incorporated by reference to Exhibit 10.7 to the Company's annual report on Form 20-F for year ended December 31, 2000). 10.7 Amendment to the asset purchase agreement between the Company and Idan Millennium Investments and Assets Ltd. dated as of May 6, 2002. 10.8 Agreements to the assignment of debt by and among the Company, Bank Hapoalim Ltd. and Shlavor Systems Ltd. dated as of May 9, 2001 (incorporated by reference to Exhibit 10.9 to the Company's annual report on Form 20-F for year ended December 31, 2000). 10.9 OEM agreement by and between Marnetics Ltd. and Speedwise Technologies Ltd. dated as of July 8, 2001 (incorporated by reference to Exhibit 10.10 to the Company's annual report on Form 20-F for year ended December 31, 2000). 46
1.1
Memorandum of Association of the Registrant (filed as Exhibit 3.1 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein).
1.2
Amended and Restated Articles of Associations of the Registrant (including revision for Amendment from November 26, 2002 reflected in amended wording to Article 99) (incorporated by reference to Exhibit 1.2 to the Company’s annual report on Form 20-F for the year ended December 31, 2002).
4.1
2001 Share Option Plan (incorporated by reference to Exhibit 4.1 to the Company’s annual report on Form 20-F for the year ended December 31, 2000).
4.2
Services agreement with Netlogic Ltd., a company under the control of Mr. Menachem Reinschmidt, Director and then Chief Executive Officer of the Company, effective December 2, 2001, dated February 11, 2002 (incorporated by reference to Exhibit 4.2 to the Company’s annual report on Form 20-F for year ended December 31, 2001).
68
4.3
Addendum to services agreement with Netlogic Ltd., a company under the control of Mr. Menachem Reinschmidt, current Chairman of the Board of the Company, dated December 2, 2002 (incorporated by reference to Exhibit 4.3 to the Company’s annual report on Form 20-F for the year ended December 31, 2001).
4.4
Second addendum to services agreement with Netlogic Ltd., a company under the control of Mr. Menachem Reinschmidt, current Chairman of the Board of the Company dated June 2, 2003 (incorporated by reference to Exhibit 4.4 to the Company’s annual report on Form 20-F for the year ended December 31, 2002).
4.5
Extension to the Service Agreement up until March 31, 2004 (incorporated by reference to “Item 6. Directors, Senior Managers and Employees – Compensation” in this annual report on Form 20-F).
8
List of subsidiaries (incorporated by reference to “Item 4 – Information on the Company – Organizational Structure” in this Annual Report on Form 20-F).
10.1
Form of officers’ and directors’ indemnification agreement (filed as Exhibit 10.3 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein).
10.2
Loan agreement between Bank Hapoalim Ltd. and the Registrant (filed as Exhibit 10.4 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein).
10.3
Promissory Note issued by Dov Strikovsky, the former President, Chairman and CEO of the Company, to the Company (filed as Exhibit 10.5 to Form F-1 Registration Statement No. 333-8800 and by this reference incorporated herein).
10.4
Share exchange agreement among Marnetics Ltd., its Shareholders and the Registrant dated as of May 31, 2000, as amended (filed as Exhibit 10.6 to Form 20-F for the year-ended December 31, 2000 and by this reference incorporated herein)
10.5
Indemnification agreement between Dov Strikovsky, the former President, Chairman and CEO of the Company, the Company and the former shareholders of Marnetics Ltd. dated as of June 30, 2001 (incorporated by reference to Exhibit 10.5 to the Company’s annual report on Form 20-F for year ended December 31, 2000).
10.6
Asset purchase agreement between the Company and Idan Millennium Investments and Assets Ltd. dated as of June 10, 2001 (incorporated by reference to Exhibit 10.7 to the Company’s annual report on Form 20-F for year ended December 31, 2000)
10.7
Amendment to the asset purchase agreement between the Company and Idan Millennium Investments and Assets Ltd. dated as of May 6, 2002 ((incorporated by reference to Exhibit 10.7 to the Company’s annual report on Form 20-F for year ended December 31, 2001).
10.8
Agreements to the assignment of debt by and among the Company, Bank Hapoalim Ltd. and Shlavor Systems Ltd. dated as of May 9, 2001 (incorporated by reference to Exhibit 10.9 to the Company’s Annual Report on Form 20-F for year ended December 31, 2000).
12.1
Certification of Chairman of the Board pursuant to Exchange Rules 13a-14 and 15d-14, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
12.2
Certification of Acting Chief Financial Officer pursuant to Exchange Rules 13a-14 and 15d-14, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
13.1
Certification of Chairman of the Board and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. This document is being furnished in accordance with SEC Release No. 33-8212 and 34-47551.
69
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Annual Report on its behalf.
MARNETICS BROADBAND TECHNOLOGIES LTD.
By:
/s/ Menachem Reinschmidt
Menachem Reinschmidt, Chairman of the Board
By:
/s/ George Balot
George Balot, Acting Chief Financial Officer
Date: July 14, 2004
70
EXHIBIT 12.1
Certification of Chairman of the Board
pursuant to Rules 13a-14(a) (17 CFR 240.13a-14(a)),
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.CERTIFICATION
I, Menachem Reinschmidt, certify that:
1. I have reviewed this annual report on Form 20-F of Marnetics Broadband Technologies Ltd..;
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 company as of, and for, the periods presented in this report;
4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15e and 15d-15e) for the company and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its
behalf.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 company’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 company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’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 company’s internal control over financial reporting.
Date: July 14, 2004
/s/ Menachem Reinschmidt
Menachem Reinschmidt
Chairman of the Board71
EXHIBIT 12.2
Certification of Chief Financial Officer
pursuant to Rules 13a-14(a) (17 CFR 240.13a-14(a)),
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.CERTIFICATION
I, George Balot, certify that:
1. I have reviewed this annual report on Form 20-F of Marnetics Broadband Technologies Ltd..;
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 company as of, and for, the periods presented in this report;
4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15e and 15d-15e) for the company and have:
(a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, 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 company’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 company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’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 company’s internal control over financial reporting.
Date: July 14, 2004
/s/ George Balot
George Balot
Acting Chief Financial Officer72
Exhibit 13.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002In connection with the Annual Report of Marnetics Broadband Technologies Ltd. (the “Company”) on Form 20-F for the year ended December 31, 2003, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certify pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 that to the best of our knowledge:
1.
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2.
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Menachem Reinschmidt
Name: Menachem Reinschmidt
Title: Chairman of the Board/s/ George Balot
Name: George Balot
Title: Acting Chief Financial OfficerDate: July 14, 2004
A signed copy of this written statement required by Section 906 has been provided to Marnetics Broadband Technologies Ltd. and will be retained by Marnetics Broadband Technoloiges Ltd. and furnished to the Securities and Exchange Commission or its staff upon request.
73
MARNETICS BROADBAND TECHNOLOGIES LTD.
By: /s/ Menachem Reinschmidt ------------------------------------- Menachem Reinschmidt, CEO By: /s/ Ilan Hadar ------------------------------------- Ilan Hadar, CFO Date: July 11, 2002 47
(A Development Stage Company)CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2003
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY)
(A Development Stage Company)CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2001CONTENTS
Page
F-2
F-3
F-4
F-5
F-6
F-9
MARNETICS BROADBAND TECHNOLOGIES LTD. CONSOLIDATED FINANCIAL STATEMENTS CONTENTS PageREPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
2 CONSOLIDATED BALANCE SHEETS as at December 31, 2001 and 2000 3 CONSOLIDATED STATEMENTS OF OPERATIONS forTo the
years ended December 31, 2001, 2000 and 1999 and for the cumulative period from June 1, 1998 to December 31, 2001 4 STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY for the years ended December 31, 2001, 2000 and 1999 5 CONSOLIDATED STATEMENTS OF CASH FLOWS for the years ended December 31, 2001, 2000 and 1999 and for the cumulative period from June 1, 1998 to December 31, 2001 6 NOTES TO THE FINANCIAL STATEMENTS 9REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS TO THE SHAREHOLDERS OF MARNETICS BROADBAND TECHNOLOGIES LTD.Shareholders of Marnetics Broadband Technologies Ltd.We have audited the accompanying consolidated balance sheets of
MARNETICS BROADBAND TECHNOLOGIES LTD. ("Marnetics Broadband Technologies Ltd. (“theCompany"Company”) (adevelopment-stagedevelopment stage company) as of December 31,20012003 and2000,2002, and the related consolidated statements of operations,changes in shareholders'shareholders’ equity (deficiency) and cash flows for the years ended December 31,2001, 20002003, 2002 and19992001 and the cumulative period from June 1, 1998 (date of commencement of operations) to December 31,2001.2003. These consolidated financial statements are the responsibility of theCompany'sCompany’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.We conducted our audits in accordance with
auditingthe standardsgenerally accepted inof theUnited States of America.Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by theCompany'sCompany’s management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.In our opinion, the aforementioned consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company (a
development-stagedevelopment stage company) as of December 31,20012003 and2000,2002, and its consolidated results of operationschanges in shareholders' equityand its cash flows for the years ended December 31,2001, 20002003, 2002 and19992001 and the cumulative period from June 1, 1998 (date of commencement of operations) to December 31,2001,2003, in conformity withaccounting principlesU.S. generally acceptedin the United States of America.accounting principles.The accompanying financial statements have been prepared assuming that the Company will continue as a going concern.
As discussed in Note 1bDue to thefinancial statements, the Company's recurring losses from operations raise substantial doubt about its ability to continue as a going concern. Management's plans concerning these matters are also described in Note 1b. The financial statements do not include any adjustments that might result from the outcomelack ofthis uncertainty. BRIGHTMAN ALMAGOR & CO. CERTIFIED PUBLIC ACCOUNTANTS (ISRAEL) A MEMBER OF DELOITTE TOUCHE TOHMATSU Tel Aviv, Israel May 30, 2002 -2-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS) CONSOLIDATED BALANCE SHEETS
DECEMBER 31, -------------------- 2001 2000 -------- --------CURRENT ASSETS: Cash and cash equivalents $ 2,418 $ 6,546 Receivables: Trade -- 723 Related parties (Note 3) -- 690 Other (Note 6a) 248 123 Inventories -- 224 Recoverable costs and estimated earnings- not yet billed -- 3,255 -------- -------- TOTAL CURRENT ASSETS 2,666 11,561 -------- -------- LONG-TERM LOAN TO RELATED PARTIES (Note 3) -- 1,272 -------- -------- INVESTMENT IN AFFILIATE (NOTE 4 & 13) 582 582 -------- -------- FIXED ASSETS (Notes 2e & 5) Cost 267 1,065 Less - accumulated depreciation 8 413 -------- -------- 259 652 -------- -------- OTHER ASSETS (NOTE 1&12) -- 11,309 -------- -------- $ 3,507 $ 25,376 ======== ======== CURRENT LIABILITIES: Short-term bank credit (Note 6b) $ 50 $ 3,337 Payables: Trade 135 1,553 Other (Note 6c) 885 1,746 -------- -------- TOTAL CURRENT LIABILITIES 1,070 6,636 -------- -------- LONG-TERM LIABILITIES (Note 7) -- 65 -------- -------- ACCRUED SEVERANCE PAY -- 148 -------- -------- COMMITMENTS AND CONTINGENT LIABILITIES (Note 8) SHAREHOLDERS' EQUITY (Note 9) Share capital: Ordinary shares of NIS 0.08 par value (Authorized, 25,000,000 shares, issued and outstanding at December 31, 2000 and 2001 6,407,333 and 7,362,390 respectively) 130 130 Additional paid-in capital 25,203 25,143 Deferred stock based compensation (1,584) (2,329) Accumulated deficit (21,312) (4,417) -------- -------- 2,437 18,527 -------- -------- $ 3,507 $ 25,376 ======== ========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -3-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA) CONSOLIDATED STATEMENTS OF OPERATIONS
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT YEAR ENDED DECEMBER 31, OF OPERATIONS) -------------------------------------- TO DECEMBER 31, 2001 2000 1999 2001 ---------- ---------- ---------- ---------------Research and development costs (excluding $745 and $883 of non-cash compensation for the year ended December 31, 2001 and cumulative from June 1, 1998 to December 31, 2001, respectively) (Note 11a) $ 812 $ 252 $ 33 $ 1,228 Sales and marketing expenses, net (Note 11b) 310 142 -- 452 General and administrative expenses (excluding $60 and $2,330 of non-cash compensation for the year ended December 31, 2001 and cumulative from June 1, 1998 to December 31, 2001, respectively) (Note 11c) 1,128 722 44 2,075 Provision for legal claim (Note 8d) 750 -- -- 750 Impairment of goodwill (Note 12) 9,309 -- -- 9,309 Loss allowance on loan to related party (Note 3) 1,228 -- -- 1,228 Non-cash compensation expenses 805 2,408 -- 3,213 ---------- ---------- ---------- ---------- OPERATING LOSS (14,342) (3,524) (77) (18,255) Financial income, net 175 167 9 359 Loss on sale of property and equipment -- -- (28) (28) Share in losses of affiliate -- (639) (21) (660) ---------- ---------- ---------- ---------- LOSS FROM CONTINUING OPERATIONS (14,167) (3,996) (117) (18,584) DISCONTINUED OPERATIONS: Loss from operations of electrical division (450) -- -- (450) Loss on sale of electrical division (2,278) -- -- (2,278) ---------- ---------- ---------- ---------- LOSS FOR THE PERIOD $ (16,895) $ (3,996) $ (117) $ (21,312) ========== ========== ========== ========== PER SHARE DATA (NOTE 2G) Basic and diluted: LOSS PER SHARE FROM CONTINUING OPERATIONS $ (2.11) $ (4.15) $ (0.20) ========== ========== ========== LOSS FROM DISCONTINUED OPERATIONS $ (0.40) $ -- $ -- ========== ========== ========== NET LOSS $ (2.51) $ (4.15) $ (0.20) ========== ========== ========== SHARES USED IN COMPUTING LOSS PER ORDINARY SHARE Basic and diluted 6,725,685 962,553 575,234 ========== ========== ==========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -4-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS) STATEMENTS OF SHAREHOLDERS' EQUITY
DEFICIT ACCUMULATED ADDITIONAL DURING THE NUMBER OF SHARE PAID-IN DEFERRED DEVELOPMENT SHARES CAPITAL CAPITAL COMPENSATION STAGE TOTAL --------- ---------- ---------- ------------ ----------- ----------BALANCE AT JANUARY 1, 1999 266,000 $ 1 $ 682 $ -- $ (304) $ 379 Issuance of shares for no consideration 559 Adjustment due to issuance of shares of a development - stage affiliate to a third party 146 146 Loss for the year (117) (117) --------- ---------- ---------- ---------- ---------- ---------- BALANCE AT DECEMBER 31, 1999 266,559 1 828 -- (421) 408 --------- ---------- ---------- ---------- ---------- ---------- Issuance of share capital 388,237 1 7,297 7,298 Adjustments due to issuance of shares of a development - stage affiliate to a third party 1,095 1,095 Issuance of options to a related party 270 270 Deferred compensation related to employee stock option grants 631 (631) -- Adjustments due to reverse merger - additional compensation due to a new measurement date 1,836 (1,836) -- Amortization of deferred compensation 138 138 Adjustments due to reverse merger 759,489 30 30 Issuance of shares in a reverse merger 4,993,048 98 11,186 11,284 Compensation relating to options granted to former CEO and chairman of the board 2,000 2,000 Loss for the period (3,996) (3,996) --------- ---------- ---------- ---------- ---------- ---------- BALANCE AT DECEMBER 31, 2000 6,407,333 130 25,143 (2,329) (4,417) 18,527 --------- ---------- ---------- ---------- ---------- ---------- Amortization of deferred compensation 745 745 Compensation related to options granted to service providers 60 60 Issuance of shares for no consideration 955,057 Loss for the year (16,895) (16,895) --------- ---------- ---------- ---------- ---------- ---------- BALANCE AT DECEMBER 31, 2001 7,362,390 $ 130 $ 25,203 $ (1,584) $ (21,312) $ 2,437 ========= ========== ========== ========== ========== ==========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -5-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS) STATEMENTS OF CONSOLIDATED CASH FLOWS
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT OF YEAR ENDED DECEMBER 31, OPERATIONS) TO -------------------------------- DECEMBER 31, 2001 2000 1999 2001 -------- -------- -------- ---------------CASH FLOWS FROM OPERATING ACTIVITIES: Loss for the period $(16,895) $ (3,996) $ (117) $(21,312) Adjustments to reconcile loss for the period to cash used in operating activities (Appendix A): 12,775 3,124 (7) 15,959 -------- -------- -------- -------- Net cash used in operating activities (4,120) (872) (124) (5,353) -------- -------- -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Cash acquired in a non-cash reverse merger (Appendix B) -- 22 -- 22 Purchase of fixed assets (85) (186) -- (318) Proceeds from sale of fixed assets -- -- 10 10 -------- -------- -------- -------- Net cash provided by (used in) investing activities (85) (164) 10 (286) -------- -------- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Short-term debt, net (751) -- -- (751) Repayment of long-term loan 828 -- -- 828 Issuance of share capital -- 7,298 -- 7,981 Investment in affiliate -- -- (1) (1) -------- -------- -------- -------- Net cash provided by (used in) financing activities 77 7,298 (1) 8,057 -------- -------- -------- -------- Increase (decrease) in cash and cash equivalents (4,128) 6,262 (115) 2,418 Cash and cash equivalents at the beginning of the period 6,546 284 399 -- -------- -------- -------- -------- Cash and cash equivalents at the end of the period $ 2,418 $ 6,546 $ 284 $ 2,418 ======== ======== ======== ========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -6-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS) APPENDICES TO CONSOLIDATED STATEMENTS OF CASH FLOWS
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT OF YEAR ENDED DECEMBER 31, OPERATIONS) TO -------------------------------- DECEMBER 31, 2001 2000 1999 2001 -------- -------- -------- ---------------APPENDIX A ADJUSTMENTS TO RECONCILE LOSS FOR THE PERIOD TO NET CASH USED IN OPERATING ACTIVITIES: Depreciation $ 53 $ 8 $ 2 $ 70 Loss on sale of fixed assets -- -- 28 28 Share in losses of affiliate -- 639 21 660 Loss on sale of discontinued operations (Appendix C) 2,278 -- -- 2,278 Impairment of goodwill 9,309 -- -- 9,309 Loss allowance on loan to related party 1,228 -- -- 1,228 Non cash compensation expenses 805 2,408 -- 3,213 Changes in assets and liabilities: Decrease (increase) in accounts receivable 303 (61) (1) 235 Increase in other receivables (235) -- -- (235) Decrease in inventories 684 -- -- 684 (Decrease) increase in trade payables (1,342) 34 (20) (1,307) (Decrease) Increase in other payables and accrued expenses (308) 96 (37) (204) -------- -------- -------- -------- $ 12,775 $ 3,124 $ (7) $ 15,959 ======== ======== ======== ======== SUPPLEMENTAL CASH FLOW DATA APPENDIX B: PURCHASE OF A SUBSIDIARY IN A REVERSE MERGER: Current assets $ 4,947 $ 4,947 Non-current assets 1,272 1,272 Fixed assets 474 474 Goodwill 11,309 11,309 Current liabilities (6,497) (6,497) Long-term liabilities (213) (213) Cash acquired 22 22 -------- -------- Total non-cash consideration $ 11,314 $ 11,314 ======== ========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -7-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) (U.S.$ IN THOUSANDS) APPENDICES TO CONSOLIDATED STATEMENTS OF CASH FLOWS
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT OF YEAR ENDED DECEMBER 31, OPERATIONS) TO -------------------------------- DECEMBER 31, 2001 2000 1999 2001 -------- -------- -------- ---------------APPENDIX C: SALE OF ELECTRICAL DIVISION: Current assets $ 1,076 $ 1,076 Fixed assets 425 425 Goodwill 2,000 2,000 Current liabilities (867) (867) Long-term liabilities (356) (356) -------- -------- Loss on sale of electrical division (see Note 3b) $ 2,278 $ 2,278 ======== ======== INFORMATION ON NON-CASH TRANSACTIONS EXTINGUISHMENTS OF A SHORT-TERM DEBT TO BANK IN EXCHANGE FOR ASSIGNMENT OF A RECEIVABLE (SEE NOTE 3b) Short-term debt $ 2,173 $ 2,173 Assignment of a receivable (2,173) (2,173) -------- -------- $ -- $ -- ======== ========THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE FINANCIAL STATEMENTS -8-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 1 - GENERAL A. MARNETICS BROADBAND TECHNOLOGIES LTD. (FORMERLY STAV ELECTRICAL SYSTEMS (1994) LTD.) ("the Company or Stav") is engaged in the development of capacity enhancement and fortification solutions for IP networks through its wholly owned subsidiary Marnetics Ltd. ("Marnetics") and was engaged in the manufacture, installation and maintenance of electrical and lighting systems, mainly for public institutions (see below). On June 1, 2000 a share exchange agreement ("the agreement") was signed between the Company and Marnetics. The agreement was consummated after final approval of the Company's shareholders on December 31, 2000. Pursuant to the agreement, the Company issued to the shareholders of Marnetics shares and options in the amounts of 4,993,048 and 1,761,236 respectively, representing 75% of its outstanding shares and options, on a fully diluted basis, in exchange for all shares in Marnetics. The merger between Marneticsadditional funds and theCompany was accounted for as a reverse merger. Asdelay of potential orders, theshareholdersBoard ofMarnetics (as a group) received the largest ownership interest in the Company, Marnetics was determined to be the "accounting acquirer" in the reverse acquisition. As a result, the historical financial statementsDirectors of the Company(priordecided toDecember 31, 2000) were replaced with the historical financial statements of Marnetics. The statements of operations for 2000 and 1999 include the operations of Marnetics. The December 31, 2000 balance sheet includes the accountscease all activities of the Companyand Marnetics.(see Note 1b). Thefair value of Stav shares, US$ 11,314,280 was determined on the basis of the average market price of its outstanding shares US$ 8.00 per share. Goodwill in the amount of $11,309,000 was recorded accordingly. The following unaudited pro forma summary presents information as if the acquisition of Stav occurred at the beginning of the periods presented. The pro forma information, which is provided for informational purposes only, is based on historical information and does not necessarily reflect the results that would have occurred, nor is it necessarily indicative of future results of operations of the consolidated entities.
(UNAUDITED) -------------------------- YEAR ENDED DECEMBER 31, -------------------------- 2000 1999 -------- --------Revenues $ 4,498 $ 5,152 Net income (10,751) (1,227) Earnings per share: Basic (1.68) (0.19) Diluted $ (1.68) $ (0.19)Effective March 2001 the Company sold to Idan Millennium Investments and Assets Ltd ("IDAN") , a company under the control of Mr. Strikovsky, former CEO and former chairman of the board, all the fixed assets, inventories, other assets and liabilities and goodwill related to the electrical operations for a consideration of $597,000. The balance of $597,000 was not recognized as the probability of its realization is in doubt (See also Note 3). B. Theaccompanyingfinancial statements have been prepared assuming that the Company will continue as a going concern which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The Company has a limited operating history and has sustained losses since its inception. As shown in the accompanying financial statements, the Company incurred a net loss of $16,895,000 for the year ended December 31, 2001 and as of that date has accumulated loss of $ 21,312,000. The future of the Company is dependent upon future profitable operations from the commercial success of its operations. Management is actively seeking additional capital that will provide funds needed to fund its operations in order to fully implement its business plans. There is no assurance, however, that additional capital will be available to the Company and the inability to obtain such financing would have a material adverse effect on the Company. Theconsolidated financial statements do not include any adjustmentsthat might result from the outcomeas a result.Brightman Almagor & Co.
Certified Public Accountants (Israel)
A member firm ofthis uncertainty and these adjustments may be material. -9-Deloitte Touche TohmatsuTel Aviv, Israel
July 8, 2004F-2
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY) NOTES TO THE
(A Development Stage Company)
(U.S.$ in thousands, except share data)CONSOLIDATED
FINANCIAL STATEMENTS NOTE 2 - SIGNIFICANT ACCOUNTING POLICIES A. DEVELOPMENT-STAGE ENTERPRISE Since planned principal operations have not yet begun to generate any revenues, the Company is a development-stage company. All pre-operating costs have been expensed as incurred. B. USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTSBALANCE SHEETS
December 31,
2 0 0 3
2 0 0 2
ASSETS
Current assets
Cash and cash equivalents
$
234
$
957
Trade accounts receivable
-
13
Other accounts receivable (Note 5a)
72
302
Total current assets
306
1,272
Investment in affiliate(Note 3)
-
60
Fixed assets(Note 4)
Cost
295
287
Less - accumulated depreciation
203
134
Fixed assets, net
92
153
$
398
$
1,485
LIABILITIES AND SHAREHOLDERS’ EQUITY (DEFICIENCY)
Current liabilities
Trade payables
$
3
$
19
Other liabilities and accrued expenses (Note 5b)
1,162
1,250
Total current liabilities
1,165
1,269
Accrued severance pay, net
-
8
Commitments and contingent liabilities (Note 6)
Shareholders’ equity (deficiency) (Note 7)
Share capital:
Ordinary shares of NIS 0.08 par value
(Authorized - 25,000,000 shares, issued and outstanding - 7,362,390
shares at December 31, 2003 and 2002)
130
130
Additional paid-in capital
25,203
25,203
Deferred stock based compensation
-
(792
)
Accumulated deficit
(26,100
)
(24,333
)
Total shareholders’ equity (deficiency)
(767
)
208
$
398
$
1,485
The
preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the dateaccompanying notes are an integral part of the financial statementsand the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates. C. FINANCIAL STATEMENTS IN U.S. DOLLARS The reporting currency of the Company is the U.S. dollar. The currency of the primary economic environment in which the operations of the Company are conducted is the dollar, and the dollar has been determined to be the Company's functional currency. Transactions and balances originally denominated in dollars are presented at their original amounts. Non-dollar transactions and balances have been remeasured into dollars in accordance with the principles set forth in Statement of Financial Accounting Standards ("SFAS") No. 52 "Foreign Currency Translation". All exchange gains and losses from remeasurement of monetary balance sheet items resulting from transactions in non-dollar currencies are reflected in the statement of operations as they occur. D. CASH EQUIVALENTS Cash equivalents consist of short-term, highly liquid investments that are readily convertible into cash with original maturities when purchased of three months or less. E. FIXED ASSETS Property and equipment are stated at cost. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets, as follows: Computers and software 3 years Furniture and fixtures 10-15 years In accordance with SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of," management reviews long-lived assets and certain identifiable intangibles for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable based on estimated future cash flows. An impairment loss is recognized when the undiscounted future cash flows are less than the carrying value of the assets. The loss recognized would be equal to the difference between the carrying value and the fair value of the asset. -10-F-3
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY) NOTES TO THE
(A Development Stage Company)
(U.S.$ in thousands, except share and per share data)
CONSOLIDATEDFINANCIALSTATEMENTSNOTE 2 - SIGNIFICANT ACCOUNTING POLICIES (cont.) F. RESEARCH AND DEVELOPMENT COSTS Research and development costsOF OPERATIONS
Year ended December 31,
Cumulative
from June 1, 1998
date of
(commencement
of operations)
to December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Revenue
$
4
$
19
$
-
$
23
Research and development costs, net (excluding
$702 and $2,287 of non-cash compensation for
the year ended December 31, 2003 and
cumulative from June 1, 1998 to December 31,
2003, respectively) (Note 9a)
210
486
812
1,924
Sales and marketing expenses, net (Note 9b)
174
464
310
1,090
General and administrative expenses (excluding
$90 and $2,510 of non-cash compensation for
the year ended December 31, 2003 and
cumulative from June 1, 1998 to December 31,
2003, respectively) (Note 9 c)
434
784
1,128
3,293
Provision for legal claim (Note 6b)
-
(500
)
750
250
Impairment of goodwill (Note 10)
-
-
9,309
9,309
Loss allowance on loan to related party (Note 11)
-
-
1,228
1,228
Collection of loan from related party (Note 11)
-
(266
)
-
(266
)
Write-down of investment in affiliate (Note 3)
60
522
-
582
Provision for a bank guarantee (Note 11)
-
716
-
716
Non-cash compensation expenses
792
792
805
4,797
Total costs and expenses
1,670
2,998
14,342
22,923
Operating loss
(1,666
)
(2,979
)
(14,342
)
(22,900
)
Financial income (loss), net
(101
)
32
175
290
Loss on sale of fixed assets
-
-
-
(28
)
Taxes on income
-
(74
)
-
(74
)
Share in losses of affiliate
-
-
-
(660
)
Loss from continuing operations
(1,767
)
(3,021
)
(14,167
)
(23,372
)
Discontinued operations
Loss from operations of electrical division
-
-
(450
)
(450
)
Loss on sale of electrical division
-
-
(2,278
)
(2,278
)
Loss for the period
$
(1,767
)
$
(3,021
)
$
(16,895
)
$
(26,100
)
Per share data (basic and diluted)(Note 2g)
Loss from continuing operations
$
(0.24
)
$
(0.41
)
$
(2.11
)
Loss from discontinued operations
$
-
$
-
$
(0.40
)
Loss for the period
$
(0.24
)
$
(0.41
)
$
(2.51
)
Number of shares used in computing
loss per share (basic and diluted)
7,362,390
7,362,390
6,725,685
The accompanying notes are
expensed as incurred. G. EARNINGS PER SHARE The Company has adopted Statement No. 128 of the FASB "Earnings Per Share" ("SFAS 128"). Basic and diluted earnings per ordinary share are computed using the weighted average number of shares outstanding. H. DEFERRED INCOME TAXES Deferred income taxes are provided for temporary differences between the assets and liabilities, as measured for financial statement purposes and for tax purposes, at tax rates expected to be in effect when these differences reverse. I. FAIR VALUE OF FINANCIAL INSTRUMENTS The financial instruments of the Company consist mainly of cash and cash equivalents, current accounts receivable, accounts payable and accruals. Due to the relatively short period to maturity, the fair valuean integral part of the financialinstruments includedstatementsF-4
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
(U.S.$ inthe working capital of the Company approximates their carrying amounts. J. RECENT ACCOUNTING PRONOUNCEMENTS In July 2001, the Financial Accounting Standards Board ("FASB") issued statement of Financial Accounting Standards No. 141 ("SFAS 141"), Business Combinations." SFAS 141 requires the purchase method of accounting for business combinations initiated after June 30, 2001 and eliminates the pooling-of-interests method.thousands, except share data)
STATEMENTS OF SHAREHOLDERS’ EQUITY (DEFICIENCY)
Number
of shares
Share
capital
Additional
paid-in
capital
Deferred
stock-based
compensation
Accumulated deficit
Total
Balance at
January 1, 2001
6,407,333
$
130
$
25,143
$
(2,329
)
$
(4,417
)
$
18,527
Amortization of deferred
compensation
745
745
Compensation related to
options granted to service
providers
60
60
Issuance of shares for no
consideration
955,057
Loss for the year
(16,895
)
(16,895
)
Balance at
December 31, 2001
7,362,390
130
25,203
(1,584
)
(21,312
)
2, 437
Amortization of deferred
compensation
792
792
Loss for the year
(3,021
)
(3,021
)
Balance at
December 31, 2002
7,362,390
130
25,203
(792
)
(24,333
)
208
Amortization of deferred
compensation
792
792
Loss for the year
(1,767
)
(1,767
)
Balance at
December 31, 2003
7,362,390
$
130
$
25,203
$
-
$
(26,100
)
$
(767
)
The
Company does not believe that the adoption of SFAS 141 will have a significant impact on its financial statements. In July 2001, the FASB issued Statement of Financial Accounting Standards No. 142 ("SFAS 142"), Goodwill and Other Intangible Assets", which is effective January 1, 2002. SFAS 142 requires, among other things, the discontinuance of goodwill amortization. In addition, the standard includes provisions for the reclassification of certain existing recognized intangibles as goodwill, reassessment of the useful lives of existing recognized intangibles, reclassification of certain intangibles out of previously reported goodwill and the identification of reporting units for transitional goodwill impairment test six months from the date of adoption. The Company does not believe that the adoption of SFAS 142 will have a significant impact on its financial statements. In June 2001, the FASB issued Statement of Financial Accounting Standards No. 143, "Accounting for Asset Retirement Obligations" ("FAS 143"), which is effective for years beginning after June 15, 2002, which will be the Company's fiscal year 2003. FAS 143 addresses legal obligations associated with the retirement of tangible long-lived assets that result from the acquisition, construction, development or normal operation of a long-lived asset. The standard requires that the fair value of a liability foraccompanying notes are anasset retirement obligation be recognized in the period in which it is incurred if a reasonable estimate of fair value can be made. Any associated asset retirement costs are to be capitalized asintegral part of thecarrying amountfinancial statementsF-5
MARNETICS BROADBAND TECHNOLOGIES LTD
(A Development Stage Company)
(U.S.$ in thousands)
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year ended December 31,
Cumulative
from June 1, 1998
date of
(commencement
of operations)
to December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Cash flows from operating activities:
Loss for the period
$
(1,767
)
$
(3,021
)
$
(16,895
)
$
(26,100
)
Adjustments to reconcile loss for the period to
cash used in operating activities (Appendix A):
1,052
1,630
12,775
18,641
Net cash used in operating activities
(715
)
(1,391
)
(4,120
)
(7,459
)
Cash flows from investing activities:
Cash acquired in a non-cash reverse merger
(Appendix B)
-
-
-
22
Purchase of fixed assets
(8
)
(20
)
(85
)
(346
)
Proceeds from sale of fixed assets
-
-
-
10
Net cash used in investing activities
(8
)
(20
)
(85
)
(314
)
Cash flows from financing activities:
Short-term debt, net
-
(50
)
(751
)
(801
)
Repayment of long-term loan
-
-
828
828
Issuance of share capital
-
-
-
7,981
Investment in affiliate
-
-
-
(1
)
Net cash provided by (used in)
financing activities
-
(50
)
77
8,007
Increase (decrease) in cash
and cash equivalents
(723
)
(1,461
)
(4,128
)
234
Cash and cash equivalents
at the beginning of the period
957
2,418
6,546
-
Cash and cash equivalents
at the end of the period
$
234
$
957
$
2,418
$
234
The accompanying notes are an integral part of the
long-lived asset and expensed over the lifefinancial statementsF-6
MARNETICS BROADBAND TECHNOLOGIES LTD
(A Development Stage Company)
(U.S.$ in thousands)APPENDICES TO CONSOLIDATED STATEMENTS OF CASH FLOWS
Year ended December 31,
Cumulative
from June 1, 1998
date of
(commencement
of operations)
to December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Appendix A
Adjustments to reconcile loss for the period to
net cash used in operating activities:
Depreciation
$
69
$
70
$
53
$
265
Loss on sale of fixed assets
-
-
-
28
Accrued severance pay, net
(8
)
8
-
-
Share in losses of affiliate
-
-
-
660
Loss on sale of discontinued operations
(Appendix C)
-
-
2,278
2,278
Impairment of goodwill
-
-
9,309
9,309
Loss allowance on loan to related party
-
-
1,228
1,228
Non-cash compensation expenses
792
792
805
4,797
Write-down for decline in value of
investments
60
522
-
582
Provision for a bank guarantee
-
716
-
716
Changes in assets and liabilities:
Decrease (increase) in trade accounts
receivable
13
(13
)
303
235
Decrease (increase) in other accounts
receivable
230
(54
)
(235
)
(115
)
Decrease in inventories
-
-
684
684
Decrease in trade payables
(16
)
(116
)
(1,342
)
(1,439
)
Decrease in other liabilities and accrued
expenses
(88
)
(295
)
(308
)
(587
)
$
1,052
$
1,630
$
12,775
$
18,641
Appendix B
Purchase of a subsidiary in a reverse merger:
Current assets
4,947
Non-current assets
1,272
Fixed assets
474
Goodwill
11,309
Current liabilities
(6,497
)
Long-term liabilities
(213
)
Cash acquired
22
Total non-cash consideration
$
11,314
The accompanying notes are an integral part of the
asset. The Company does not believe that the adoption of SFAS 143 will have a significant impact on itsfinancialstatements. In August 2001, the FASB issued Statement of Financial Accounting Standards No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets (FAS 144), which addresses financial accounting and reporting for the impairment or disposal of long-lived assets and supersedes SFAS No. 121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of, and the accounting and reporting provisions of APB Opinion No. 30, Reporting the Results of Operations, for a disposal of a segment of a business. FAS 144 is effective for fiscal years beginning after December 15, 2001, with earlier application encouraged. The Company has not yet determined what the effect of FAS 144 will be on the earnings and financial position of the Company. -11-statementsF-7
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY) NOTES
(A Development Stage Company)
(U.S.$ in thousands)APPENDICES TO
THECONSOLIDATEDFINANCIALSTATEMENTSNOTE 3 - RELATED PARTIES
DECEMBER 31, --------------------------- 2001 2000 ------- -------MR. DOV STRIKOVSKI (FORMER CEO AND FORMER CHAIRMAN OF THE BOARD): Loan a.(1) $ -- $ 1,484 ------- ------- Current account a.(2) $ -- $ 478 ======= =======a.(1)OF CASH FLOWS
Year ended
December 31,
Cumulative
from June 1, 1998
date of
(commencement
of operations)
to December 31,
2 0 0 1
2 0 0 3
Appendix C
Sale of discontinued operations:
Current assets
$
1,076
$
1,076
Fixed assets
425
425
Goodwill
2,000
2,000
Current liabilities
(867
)
(867
)
Long-term liabilities
(356
)
(356
)
Loss on sale of discontinued operations
$
2,278
$
2,278
Information on non-cash transactions
Extinguishments of a short-term debt to bank
in exchange for assignment of a receivable
Short-term debt
$
2,173
$
2,173
Assignment of a receivable
(2,173
)
(2,173
)
$
-
$
-
The
loan was linked to the Israeli CPI and bore interest of 2% per annum and was repayable in eight annual installments each comprised of 1/8accompanying notes are an integral part of theprincipal and the accrued interest thereon commencing January 2001. At December 31, 2001 the Company reassessed the collectibility of the loan, in the amount of $1,228,000 in accordance with provisions of SFAS No. 114 "Accounting by Creditors for Impairment of a Loan", and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. Income from impaired loan will be recorded using the cash method. (2) In prior years advances were paid to certain suppliers in the amount of $478,000. In accordance with the share exchange agreement (see Note 1) the Company asked Mr. Strikovsky for the repayment of such amounts. The excess advances were paid during 2001. b.(1) On May 9, 2001 an agreement (the "Bank Agreement") was signed between the Company and Bank Hapoalim, Ltd.(the "Bank") with respect to the Company's debt to the Bank in the amount of $3,127,000 (the "Debt"). In accordance with the Bank Agreement, the Bank has agreed to release the Company from its obligation to repay the Debt and to cancel the floating charge and liens registered in favor of the Bank on properties of the Company provided that, by May 31, 2001 the Company shall pay $954,000 to the Bank on account of the Debt (the "Repaid Amount") and in addition the Company shall have assigned to the Bank all its rights with respect to the debt of the municipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaid amount. In addition, the Company has provided the bank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of Hod Hasharon. (2) Following the Bank Agreement, on June 30, 2001 an agreement (the "Agreement") was signed between Mr. Strikovsky and the Company pursuant to which Strikovsky agreed to reimburse the Company for the Repaid Amount and any additional amount that the Company may have to pay to the Bank if the Bank exercises the guarantee related to the debt of Hod Hasharon. The reimbursement amount of $954,000 is due and payable to the Company and will be paid in monthly installments of $48,000 commencing on June 1, 2004 until paid in full. All amounts due and payable to the Company are linked to the Israeli CPI and bear interest of 4% per annum. The reimbursement amount of $954,000 was not yet recognized as the probability of its realization is in doubt. (3) Effective March 2001 the Company sold to IDAN, a company under the control of Strikovsky, all the fixed assets, inventories, other assets and liabilities and related goodwill, in the amount of $2,000,000, relating to the electrical operations for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum with IDAN to change the terms of payments to such that the first 11 installment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000. The Company, considering the collectibility probability, decided to establish an allowance on the amount not yet collected. (4) To secure his obligations under the various agreements Mr. Strikovsky has collateralized 300,000 shares that he owns of the Company. -12-financial statementsF-8
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 4
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 1 -
INVESTMENT IN AFFILIATEGeneral
a.
Marnetics Broadband Technologies Ltd. (formerly Stav Electrical Systems (1994) Ltd.)(“the Company or Stav”) is engaged in the development of capacity enhancement and traffic analysis solutions for IP networks through its wholly owned subsidiary Marnetics Ltd. (“Marnetics”) and was engaged in the manufacture, installation and maintenance of electrical and lighting systems, mainly for public institutions (see below).
On June 1, 2000 a share exchange agreement (“the agreement”) was signed between the Company and Marnetics. The agreement was consummated after final approval of the Company’s shareholders on December 31, 2000. Pursuant to the agreement, the Company issued to the shareholders of Marnetics shares and options in the amounts of 4,993,048 and 1,761,236 respectively, representing 75% of its outstanding shares and options, on a fully diluted basis, in exchange for all shares in Marnetics.
The merger between Marnetics and the Company was accounted for as a reverse merger. As the shareholders of Marnetics (as a group) received the largest ownership interest in the Company, Marnetics was determined to be the “accounting acquirer” in the reverse acquisition. As a result, the historical financial statements of the Company (prior to December 31, 2000) were replaced with the historical financial statements of Marnetics. The fair value of Stav shares, US$ 11,314,280 was determined on the basis of the average market price of its outstanding shares US$ 8.00 per share. Goodwill in the amount of $ 11,309,000 was recorded accordingly.
Effective March 2001 the Company sold to Idan Millennium Investments and Assets Ltd (“IDAN”), a company under the control of Mr. Strikovsky, former CEO and former chairman of the board, all the fixed assets, inventories, other assets and liabilities and goodwill related to the electrical operations for a consideration of $597,000 (see also Note 11).
b.
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business.
The Company has a limited operating history and has sustained losses since its inception. As shown in the accompanying financial statements, the Company incurred a net loss of $ 1,767 for the year ended December 31, 2003 and as of that date has accumulated loss of $ 26,100.
In March 2003, in light of the financial position and liquidity considerations of the Company, the Company’s board of directors decided to cease all of the Company’s operations to lay-off most of the Company’s employees, to seek a potential purchaser for the subsidiary or its IP and to find a potential investor in the Company.
The consolidated financial statements do not include any adjustments as a result.
Note 2 -Significant accounting policies
a.
Development stage enterprise
Since planned principal operations have not yet begun to generate any revenues, the Company is a development stage company. All pre-operating costs have been expensed as incurred.
b.
Use of estimates in the preparation of financial statements
The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Actual results could differ from those estimates.
F-9
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 2 -Significant accounting policies (cont.)
c.
Financial statements in U.S. dollars
The reporting currency of the Company is the U.S. dollar. The currency of the primary economic environment in which the operations of the Company are conducted is the dollar, and the dollar has been determined to be the Company’s functional currency.
Transactions and balances originally denominated in dollars are presented at their original amounts. Non-dollar transactions and balances have been remeasured into dollars in accordance with the principles set forth in Statement of Financial Accounting Standards (“SFAS”) No. 52 “Foreign Currency Translation”. All exchange gains and losses from remeasurement of monetary balance sheet items resulting from transactions in non-dollar currencies are reflected in the statement of operations as they occur.
d.
Cash equivalents
Cash equivalents consist of short-term, highly liquid investments that are readily convertible into cash with original maturities when purchased of three months or less.
e.
Fixed assets
Property and equipment are stated at cost. Depreciation is calculated using the straight-line method over the estimated useful lives of the assets, as follows:
Computers and software
3
years
Furniture and fixtures
10-15
years
The Company periodically assesses the recoverability of the carrying amount of property and equipment based on expected undiscounted cash flows. If an asset’s carrying amount is determined to be not recoverable, the Company recognizes an impairment loss based upon the difference between the carrying amount and the fair value of such assets, in accordance with SFAS No. 144 “Accounting for the Impairment or Disposal of Long-Lived Assets” (“SFAS No. 144”).
f.
Research and development costs
Research and development costs are expensed as incurred.
g.
Earnings per share
The Company has adopted Statement No. 128 of the FASB “Earnings Per Share” (SFAS 128”). Basic and diluted earnings per ordinary share are computed using the weighted average number of shares outstanding.
h.
Deferred income taxes
Deferred income taxes are provided for temporary differences between the assets and liabilities, as measured for financial statement purposes and for tax purposes, at tax rates expected to be in effect when these differences reverse.
i.
Fair value of financial instruments
The financial instruments of the Company consist mainly of cash and cash equivalents, current accounts receivable, accounts payable and accruals. Due to the relatively short period to maturity, the fair value of the financial instruments included in the working capital of the Company approximates their carrying amounts.
j.
Reclassification
Certain figures from prior years have been reclassified in order to conform to the 2003 presentation.
F-10
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 2 -Significant accounting policies (cont.)
k.
Recent accounting pronouncements
In January 2003, the FASB issued Interpretation No. 46 (“FIN 46”), “Consolidation of Variable Interest Entities, an interpretation of ARB 51”. The primary objectives of this interpretation are to provide guidance on the identification of entities for which control is achieved through means other than through voting rights (“variable interest entities”) and how to determine when and which business enterprise (the “primary beneficiary”) should consolidate the variable interest entity. This new model for consolidation applies to an entity in which either (i) the equity investors (if any) do not have a controlling financial interest; or (ii) the equity investment at risk is insufficient to finance that entity’s activities without receiving additional subordinated financial support from other parties. In addition, FIN 46 requires that the primary beneficiary, as well as all other enterprises with a significant variable interest in a variable interest entity, make additional disclosures. Certain disclosure requirements of FIN 46 were effective for financial statements issued after January 31, 2003. In December 2003, the FASB issued FIN 46 (revised December 2003), “Consolidation of Variable Interest Entities” (“FIN 46-R”) to address certain FIN 46 implementation issues. The effective dates and impact of FIN 46 and FIN 46-R are as follows: (i) Special-purpose entities (“SPEs”) created prior to February 1, 2003. The company must apply either the provisions of FIN 46 or early adopt the provisions of FIN 46-R at the end of the first interim or annual reporting period ending after December 15, 2003. (ii) Non-SPEs created prior to February 1, 2003. The company is required to adopt FIN 46-R at the end of the first interim or annual reporting period ending after March 15, 2004. (iii) All entities, regardless of whether an SPE, that were created subsequent to January 31, 2003. The provisions of FIN 46 were applicable for variable interests in entities obtained after January 31, 2003. The adoption of the provisions applicable to SPEs and all other variable interests obtained after January 31, 2003 did not have a material impact on the company’s consolidated financial position, consolidated results of operations, or liquidity.
In April 2003, the FASB issued SFAS No. 149, “Amendment of SFAS No. 133 on Derivative Instruments and Hedging Activities.” SFAS No. 149 amends and clarifies accounting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133. In particular, this Statement clarifies under what circumstances a contract with an initial net investment meets the characteristic of a derivative. It also clarifies when a derivative contains a financing component that warrants special reporting in the statement of cash flows. SFAS No. 149 is generally effective for contracts entered into or modified after June 30, 2003 and did not have a material impact on the Company’s financial statements.
In May 2003, the FASB issued SFAS No. 150, “Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity.” SFAS No. 150 establishes standards for how a company classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify certain financial instruments as a liability (or as an asset in some circumstances). SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. The adoption of SFAS No. 150 did not have an impact on the Company’s financial statements.
F-11
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 3 – Investment in affiliate
Until September 2000 the Company held 33.6% of the outstanding shares of Speedwise Technologies Ltd
("Speedwise"(“Speedwise”). In September 2000, Speedwise issued shares to a third party resulting in a decrease in theCompany'sCompany’s holdingsin Speedwiseto 19.19% and during February 2001 additional shares were issued to third parties resulting in a further dilution to15%14.73%.Effective January 1, 2001In October 2002 Speedwise sold its assets and intellectual property to a third party in consideration of cash and shares. Based on the consideration received by Speedwise, the Company assessed the recoverable amount of its investmentis carriedin Speedwise atcost (see also$60,000 and recorded an impairment charge of $522,000. As at the end of the year 2003 the Company, accepting a conservative approach, decided to write-off the remaining $60,000 value of its investment in Speedwise when it became apparent that the near-term ability to recover the assessed value of their third party shares was dependent upon uncertainties and contingencies. Any future income resulting from these shares will be recorded in the year in which monies are actually received.Note
13). NOTE4 -Fixed assets
December 31,
2 0 0 3
2 0 0 2
Cost:
Computers and software
$
204
$
196
Leasehold improvements
51
51
Furniture and fixtures
40
40
$
295
$
287
Accumulated depreciation:
Computers and software
$
179
$
118
Leasehold improvements
16
10
Furniture and fixtures
8
6
$
203
$
134
Note 5 -
FIXED ASSETSSupplementary balance sheet information
DECEMBER 31, ------------------------- 2001 2000 ------- -------Cost: Computersa.
Other accounts receivable
December 31,
2 0 0 3
2 0 0 2
Prepaid expenses
$
19
$
60
Restricted cash
28
30
Government authorities
13
199
Others
12
13
$
72
$
302
b.
Other liabilities and
software $ 178 $ 304 Leasehold improvements 50 116 Motor vehicles -- 610 Furniture and fixtures 39 35 ------- ------- $ 267 $ 1,065 ======= ======= Accumulated depreciation: Computers and software $ (6) $ (100) Leasehold improvements (1) (55) Motor vehicles -- (257) Furniture and fixtures (1) (1) ------- ------- $ (8) $ (413) ======= =======accrued expensesNOTE 6 - SUPPLEMENTARY BALANCE SHEET INFORMATION A. OTHER RECEIVABLES
DECEMBER 31, -------------------------- 2001 2000 ------- --------Prepaid expenses $ 13 $ 77 Restricted cash 30 24 Advances to suppliers -- 14 Government authorities 102 -- Others 103 8 ------- ------- $ 248 $ 123 ======= ========B. SHORT-TERM BANK CREDIT
DECEMBER 31, INTEREST RATES ------------------------- % 2001 2000 -------------- ------ ------------UNLINKED SHEKEL CREDIT Overdraft 13.7-10.2 $ 50 $2,609 Short-term loans 6.2-10.2 -- 680 ------ ------ 50 3,289 Current maturities of long-term loans -- 48 ------ ------ $ 50 $3,337 ====== ======Liens - see Note 8c -13-
December 31,
2 0 0 3
2 0 0 2
Wages and related accruals
$
10
$
82
Government authorities
12
98
Provision for a bank guarantee
716
716
Provision of legal claim
250
250
Other accrued expenses
174
104
$
1,162
$
1,250
F-12
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 6 - SUPPLEMENTARY BALANCE SHEET INFORMATION (cont.) C. OTHER PAYABLES:
DECEMBER 31, --------------------- 2001 2000 ------ ------Wages and related accruals $ 52 $ 508 Government authorities 27 834 Accrued expenses (see also Note 8d) 806 284 Other -- 120 ------ ------ $ 885 $1,746 ====== ======NOTE 7 - LONG-TERM LIABILITIES
DECEMBER 31, --------------------- 2001 2000 ------ ------Long-term loan $ -- $ 44 Finance leases -- 85 Less - current maturities -- 48 ------ ------ -- 81 Less - deposit -- 16 ------ ------ $ -- $ 65 ====== ======-14-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 8 - COMMITMENTS AND CONTINGENT LIABILITIES A. LEASE AGREEMENT The facilities of the subsidiary are rented under an operating lease for a period of one year commencing May 14, 2000 and include a two-year lease extension option to extend the lease for one year periods upon prior written notice. The Company exercised the option and extended the lease term for additional year. The rent expenses under the operating lease for the year ended December 31, 2001 totaled $ 35,000. B. EMPLOYMENT AGREEMENT In June 1999, the Company entered into an employment agreement with Mr. Strikovsky providing that, through December 31, 2002, Mr. Strikovsky will serve as President and Chief Executive Officer of the Company at a base salary of $15,000 per month payable in New Israeli Shekels. The contract was terminated effective March 31, 2001, the date on which Mr. Strikovsky resigned from his duties. C. LIENS, SECURITY AND GUARANTEES 1. The Company has provided the Bank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of Hod Hasharon. (see also Note 3b). The Company was informed that Hod-Hashron is delaying its payments due
(A Development Stage Company)
Notes to theBank. According to the Bank Agreement the Bank was entitled to exercise the guarantee no earlier than May 31, 2002, or if legal procedures are carried out against Hod-hasharon no earlier than November 30, 2002. The legal advisorsConsolidated Financial StatementsNote 6 -Commitments and contingent liabilities
a.
Liens, security and guarantees
The Company has obtained bank guarantees of $39,400, of which $28,000 are secured by a restricted deposit, in connection with the Company’s facilities operating lease agreement in Israel.
b.
Legal claim
The Company and Mr. Strikovski was named as a defendant in a claim for specific performance of an agreement allegedly entered into by the Company and the plaintiff in April 1999 (the “Agreement”) as well as damages as a result of a breach of the agreement. On July 2, 2001, due to the fact that no defense and/or reply was provided by the Company, judgment was entered against the Company in the amount of $725,000. On February 7, 2002 the Company filed a motion to vacate the judgment and on February 27, 2002 the court rejected the motion. The Company filed an appeal on the court decision which was accepted by the Supreme Court of the State New York with instructions to allow evidentiary hearing. The hearing was held on May 22, 2003 and the Company is awaiting the court’s decision. The plaintiff proposed to settle the suit for $250,000 and while the Company was willing to further negotiate a substantially lower amount, in light of the plaintiff’s position the Company decided to reject the proposal. In 2001 the Company has established an allowance in the amount of $750,000 to provide for its possible exposure. In light of the developments in 2002, the Company decreased the allowance by $500,000 to $250,000 which, in light of the judgment against the Company and the settlement offer proposed, represents a conservative estimate of the probable exposure.
c.
Royalties
The Company is committed to pay royalties to the office of the Chief Scientist of
the Company are of the opinion that legal procedures have been commenced against Hod-Hasharon and the Bank can exercise the guarantee no earlier than November 30, 2002. 2. As of December 31, 2001, the Company was contingently liable for bank guarantees under performance obligations to customers totaling US$ 184,000. D. LEGAL CLAIM The Company was named as a defendant in a claim for specific performance of an agreement allegedly entered into by the Company and the plaintiff in April 1999 (the "Agreement") as well as damages as a result of a breach of the agreement. On July 2, 2001, due to the fact that no defense and/or reply was provided by the Company, judgment was entered against the Company in the amount of $725,000. On February 7, 2002 the Company filed a motion to vacate the judgment and on February 27, 2002 the court rejected the motion. The Company is in the process of filing an appeal on the court decision. The Company has established an allowance in the amount of $750,000 to provide for its possible exposure. -15-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 9 - SHARE CAPITAL a. In December 1998 the Company consummated an Initial Public Offering (IPO). Subsequent to the IPO, the Company's ordinary shares are quoted and listed on the American Stock Exchange (AMEX). b. In January 2000, Marnetics issued 36,318 ordinary shares of NIS 0.01 par value to an investor in consideration for $295,000. In addition, Marnetics granted the investor options to purchase 10,465 outstanding shares of the Company at $8.12 per share. c. In February 2000, Marnetics issued 130,719 ordinary shares of NIS 0.01 par value to ECI Communications Ltd. for $2,000 thousand. d. Through September 30, 2000, Marnetics has agreed to grant to specific employees options to purchase 40,437 ordinary shares of the Company pursuant to their employment agreements. The exercise price of the options is $1. Most of the options vest over four years. As part of the share exchange agreement such options were replaced with 308,300 options to purchase ordinary shares of the Company (see also Note 9(g) below). e. In October 2000 Marnetics reached an agreement with a group of new investors (the "Investors"). In accordance with the agreement, the Company issued to the Investors 221,200 ordinary shares in consideration of $5,076 thousand. f. On June 1, 2000 a share exchange agreement ("the agreement") was signed between the Company and Marnetics. The agreement was consummated after final approval of the Company's shareholders on December 20, 2000. Pursuant to the agreement the Company issued to the shareholders of Marnetics shares and options in the amounts of 4,993,048 and 1,761,236 (including 308,300 options to employees of Marnetics - see 9(g) below) respectively, representing 75% of its outstanding shares and options, on a fully diluted basis, in exchange for all shares in Marnetics. g. Pursuant to the agreement the Company issued newly unvested options to purchase 308,300 ordinary shares of the Company to the employees of Marnetics for their unvested options in Marnetics. In connection with this issuance, the Company recorded a deferred stock compensation expense totaling $1,836,000. h. In connection with the agreement, the Board of Directors of the Company adopted an Option Plan (the "Option Plan"). The Option Plan provides for the grant of options to purchase up to an aggregate of 1,000,000 Ordinary Shares to directors, key employees and consultants of the Company. The Board of Directors of the Company will determine the terms of the grants. Under the Option Plan, the Company granted, to a company under the control of the former CEO and chairman of the board of the Company, 400,000 fully vested options to purchase shares at the exercise price of $3. With respect to these options non-cash compensation expenses totaling $2,000,000 were recorded and charged to earnings in accordance with APB 25 "Accounting for Stock Issued to Employees". The amount of options outstanding is 1,978,101 of which 390,351 were granted to employees. i. During 2001, option granted to Marnetics certain shareholder in connection with the merger, were expired unexercised. According to the merger agreement such options have to be divided pro-ratably between the formers shareholder of Marnetics. The Company issued 955,057 shares which were divided pro-ratably according to the agreement. -16-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 10 - TAXES ON INCOME The Company is assessed under the provisions of the Israeli Income Tax Law (Inflationary Adjustments) 1985, pursuant to which results for tax purposes are measured in new Israeli shekels in real terms in accordance with changes in the Israeli consumer price index. Income is taxable at the ordinary corporate tax rate of 36%. DEFERRED TAXES The main components of the Company's deferred tax assets are as follows:
DECEMBER 31, -------------------- 2001 2000 ------- -------Deferred tax assets: Net operating loss carryforwards in Israel $(3,507) $(1,786) Accrued severance pay, inventory adjustments, accrued vacation pay and allowances for doubtful debts -- (96) Less - Valuation allowance 3,507 1,882 ------- ------- Balance $ -- $ -- ======= =======Under SFAS No. 109, deferred tax assets are to be recognized for the anticipated tax benefits associated with net operating loss carryforwards and deductible temporary differences, unless it is more likely than not that some or all of the deferred tax assets will not be realized. The adjustment is made by a valuation allowance. Since the realization of the net operating loss carryforwards is less likely than not, a valuation allowance has been established for the amounts of the related tax benefits. Tax loss carryforwards of the Company and its subsidiary company totalling US$ 9,700 thousand are unlimited in duration, denominated in NIS and linked to the Israeli consumer price index. TAX ASSESSMENTS The Company has not been assessed for income tax purposes since incorporation. NOTE 11 - SUPPLEMENTARY STATEMENT OF OPERATIONS INFORMATION A. RESEARCH AND DEVELOPMENT COSTS
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT YEAR ENDED DECEMBER 31, OF OPERATIONS) TO ------------------------------ DECEMBER 31, 2001 2000 1999 2001 ------ ------ ------ -----------------Salaries and related expenses $ 670 $ 217 $ 11 $ 998 Sub-contractors -- 17 20 60 Depreciation -- 6 2 16 Other 142 12 -- 154 ------ ------ ------ ------ $ 812 $ 252 $ 33 $1,228 ====== ====== ====== ======-17-MARNETICS BROADBAND TECHNOLOGIES LTD. (A DEVELOPMENT STAGE COMPANY) NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 11 - SUPPLEMENTARY STATEMENT OF OPERATIONS INFORMATION (cont.) B. SALES AND MARKETING EXPENSES, NET
CUMULATIVE FROM JUNE 1, 1998 (DATE OF COMMENCEMENT YEAR ENDED DECEMBER 31, OF OPERATIONS) TO ---------------------------- DECEMBER 31, 2001 2000 1999 2001 ------ ------ ------ -----------------Salaries and related expenses $ 251 $ 95 $ -- $ 346 Advertising and marketing Costs 75 61 -- 136 ------ ------ ------ ------ Gross sales and marketing Costs 326 156 -- 482 Less-participation fromthe Government of Israel(16) (14) -- (30) ------ ------ ------ ------ $ 310 $ 142 $ -- $ 452 ====== ====== ====== ======on proceeds from sales of products in the research and development of which the Chief Scientist has participated by way of grants, up to the amount of 100% of the grants received, in dollar terms plus interest at LIBOR. The royalties are payable at a rate of 3% for the first three years of product sales and 3.5% thereafter. No royalties were paid to the Chief Scientist.The total amount of grants accrued at December 31, 2003 was $220,000.
The research and development grants are presented in the statements of operations as an offset to research and development costs.
The refund of the grant is contingent on future sales and the Company has no obligation to refund these grants, if sufficient sales are not generated.
Based on the terms established in the agreement with the OCS the Company may not sell its IP to a non-Israeli entity.
C. GENERAL AND ADMINISTRATIVE EXPENSESF-13
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 7 -Shareholders’ equity (deficiency)
CUMULATIVE FROM JUNEa.
In December 1998 the Company consummated an Initial Public Offering (IPO).
Subsequent to the IPO, the Company’s ordinary shares were quoted and listed on the American Stock Exchange (AMEX). In April 2003 the AMEX had notified the Company that it no longer qualify for trading and that its shares would be deleted from trading on the AMEX. The Company’s shares are now traded on the Pink Sheets.
b.
In January 2000, Marnetics issued 36,318 ordinary shares to an investor in consideration for $295,000. In addition, Marnetics granted the investor options to purchase 10,465 outstanding shares of the Company at $8.12 per share.
c.
In February 2000, Marnetics issued 130,719 ordinary shares to ECI Telecom Ltd. for $2,000 thousand.
d.
Through September 30, 2000, Marnetics had granted to specific employees options to purchase 40,437 ordinary shares of the Company’s subsidiary pursuant to their employment agreements. The exercise price of the options is $1. Most of the options vest over four years. As part of the share exchange agreement these options were replaced with 308,300 options to purchase ordinary shares of the Company (see also Note 8(f) below).
e.
In October 2000 Marnetics reached an agreement with a group of new investors (the “Investors”). In accordance with the agreement, the Company issued to the Investors 221,200 ordinary shares in consideration of $5,076 thousand.
f.
On June 1,
1998 (DATE OF COMMENCEMENT YEAR ENDED DECEMBER2000 a share exchange agreement (“the agreement”) was signed between the Company and Marnetics. The agreement was consummated after final approval of the Company’s shareholders on December 20, 2000. Pursuant to the agreement the Company issued to the shareholders of Marnetics shares and options in the amounts of 4,993,048 and 1,761,236 (including 308,300 options to employees of Marnetics) respectively, representing 75% of its outstanding shares and options, on a fully diluted basis, in exchange for all shares in Marnetics.g.
Pursuant to the agreement the Company issued newly unvested options to purchase 308,300 ordinary shares of the Company to the employees of Marnetics for their unvested options in Marnetics. In connection with this issuance, the Company recorded a deferred stock compensation expense totaling $1,836,000.
h.
In connection with the agreement, the Board of Directors of the Company adopted an Option Plan (the “Option Plan”). The Option Plan provides for the grant of options to purchase up to an aggregate of 1,000,000 Ordinary Shares to directors, key employees and consultants of the Company. The Board of Directors of the Company will determine the terms of the grants. Under the Option Plan, the Company granted, to a company under the control of the former CEO and chairman of the board of the Company, 400,000 fully vested options to purchase shares at the exercise price of $3. With respect to these options non-cash compensation expenses totaling $2,000,000 were recorded and charged to earnings in accordance with APB 25 “Accounting for Stock Issued to Employees”.
The amount of options outstanding as at December 31,
OF OPERATIONS) TO ---------------------------- DECEMBER2003 is 1,964,113 of which 187,221 were granted to employees.i.
During 2001, option granted to Marnetics certain shareholder in connection with the merger, were expired unexercised. According to the merger agreement such options must be divided pro-ratably between the formers shareholder of Marnetics. In 2001 the Company issued 955,057 shares which were divided pro-ratably according to the agreement.
F-14
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 8 -Taxes on income
The Company is assessed under the provisions of the Israeli Income Tax Law (Inflationary Adjustments) 1985, pursuant to which results for tax purposes are measured in new Israeli shekels in real terms in accordance with changes in the Israeli consumer price index.
Income is taxable at the ordinary corporate tax rate of 36%.
Deferred taxes
The main components of the Company’s deferred tax assets are as follows:
December 31,
2 0 0 3
2 0 0 2
Deferred tax assets:
Net operating loss carryforwards in Israel
$
(3,089
)
$
(2,545
)
Less – Valuation allowance
3,089
2,545
Balance
$
-
$
-
Under SFAS No. 109, deferred tax assets are to be recognized for the anticipated tax benefits associated with net operating loss carryforwards and deductible temporary differences, unless it is more likely than not that some or all of the deferred tax assets will not be realized. The adjustment is made by a valuation allowance.
Since the realization of the net operating loss carryforwards is less likely than not, a valuation allowance has been established for the amounts of the related tax benefits.
Tax loss carryforwards of the Company and its subsidiary company totalling US$ 8,597 thousand are unlimited in duration, denominated in NIS and linked to the Israeli consumer price index.
Tax assessments
The Company received final tax assessments through the tax year ended December 31, 1998.
The Subsidiary received final tax assessments through the tax year ended December 31, 2002.
Note 9 -Supplementary statement of operations information
a.
Research and development costs, net
Year ended December 31,
Cumulative from
June 1, 1998
(date of
commencement of
operations) to
December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Salaries and related
expenses
$
207
$
534
$
670
$
1,739
Subcontractors
13
-
-
73
Depreciation
63
61
53
140
Other
7
31
89
192
290
626
812
2,144
Less - participation of
the Government of
Israel
80
140
-
220
$
210
$
486
$
812
$
1,924
F-15
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 9 -Supplementary statement of operations information
b.
Sales and marketing expenses, net
Year ended December 31,
Cumulative from
June 1, 1998
(date of
commencement of
operations) to
December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Salaries and related
expenses
$
155
$
324
$
251
$
825
Subcontractors
-
64
64
Advertising and marketing
costs
19
76
75
231
174
464
326
1,120
Less - participation of
the Government of Israel
-
-
(16
)
(30
)
$
174
$
464
$
310
$
1,090
c.
General and administrative expenses
Year ended December 31,
Cumulative from
June 1, 1998
(date of
commencement
of operations) to
December 31,
2 0 0 3
2 0 0 2
2 0 0 1
2 0 0 3
Salaries and related expenses
$
165
$
194
$
472
$
1,185
Professional services
118
291
321
1,069
Management fee
-
10
-
53
Others
151
289
335
986
$
434
$
784
$
1,128
$
3,293
Note 10 -Impairment of goodwill
In 2001, in view of the markets decline, the Company assessed the value and future benefit of its enterprise level goodwill pursuant to Accounting Principles Board Opinion No. 17, “Intangible Assets” (“APB 17”) (see Note 1). The result of the assessment was a full write-off of the goodwill in the amount of $9,309,000.
F-16
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 11 –Transactions with related parties in previous years
a.
In prior years the Company granted loan to Mr. Strikovsky in the amount of $1,228,000. The loan was linked to the Israeli CPI and bore interest of 2% per annum and was repayable in eight annual installments each comprised of 1/8 of the principal and the accrued interest thereon commencing December 2000. At December 31, 2001 the Company reassessed the collectibility of the loan in accordance with provisions of SFAS No. 114 “Accounting by Creditors for Impairment of a Loan”, and resolved, considering the probability of its collectibility, to establish a loan loss allowance for the entire amount. During 2002 $266,000 were repaid on the account of the loan.
b.
(1)
On May 9, 2001 an agreement (the “Bank Agreement”) was signed between the Company and Bank Hapoalim, Ltd.(the “Bank”) with respect to the Company’s debt to the Bank in the amount of $3,127,000 (the “Debt”).
In accordance with the Bank Agreement, the Bank has agreed to release the Company from its obligation to repay the Debt and to cancel the floating charge and liens registered in favor of the Bank on properties of the Company provided that, by May 31, 2001 the Company shall pay $954,000 to the Bank on account of the Debt (the “Repaid Amount”) and in addition the Company shall have assigned to the Bank all its rights with respect to the debt of the municipality of Hod Hasharon to the Company in the amount of $2,173,000. The Company paid the $954,000 and made the assignment in the aforesaid amount.
In addition, the Company has provided the Bank with a guarantee of up to $716,000, which decreases in the ratio of NIS 1:2 paid on account of the outstanding debt of Hod Hasharon.
Through December 31, 2002 Hod Hashron has not made any re-payment on account of the debt, and therefore the guarantee has not decreased. According to the terms of the Bank Agreement, following November 30, 2002, the Bank is entitled to exercise the outstanding amount of the guarantee, and since the guarantee has not decreased, the Company decided in 2002 to establish an allowance for the guarantee in full.
Nevertheless, the Company and its representatives are conducting on-going negotiations with Hod Hasharon for the repayment of the debt to the Bank, although at present the Company cannot assess what portion of the debt will be recovered (and the guarantee decreased accordingly) as a result of such negotiations, or any future action by the Company.
On November 20 2003, the Company filed suit against the Municipality of Hod Hasharon and its then head of the Engineering Department, in the sum of NIS 10,000,000 (approximately $2.2 million) (for court fee purposes), claiming that the negligence of and/or misrepresentations made by the Municipality at the time of the reverse merger transaction between the Company and Marnetics Ltd., in regard to the Municipality’s debt towards the Company, caused Marnetics Ltd. damages of some NIS 24,000,000 (approximately $5.33 million) between the years 20001999and 2002. On March 2004, the Municipality of Hod Hasharon filed a counterclaim for NIS 4.48 million for payment in excess of work and services provided.(2)
Following the Bank Agreement, on June 30, 2001
------ ------ ------ -----------------Salariesan agreement (the “Agreement”) was signed between Mr. Strikovsky and the Company pursuant to which Strikovsky agreed to reimburse the Company for the Repaid Amount and any additional amount that the Company may have to pay to the Bank if the Bank exercises the guarantee related to the debt of Hod Hasharon. The reimbursement amount of $954,000 is due and payable to the Company and will be paid in monthly installments of $48,000 commencing on June 1, 2004 until paid in full. All amounts due and payable to the Company are linked to the Israeli CPI and bear interest of 4% per annum.. The reimbursement amount of $954,000 was not recognized as the probability of its realization was in doubt.(3)
Effective March 2001 the Company sold to IDAN, a company under the control of Strikovsky, all the fixed assets, inventories, other assets and liabilities and related
expenses $ 472 $ 242 $goodwill, in the amount of $2,000,000, relating to the electrical operations for a consideration of $597,000. The consideration is payable in 25 monthly installments of $24,000 commencing February 1, 2002. In May 2002 the Company signed an addendum with IDAN to change the terms of payments to such that the first 11$ 826 Professional services 321 305 8 660 Management fee -- 43 -- 43 Others 335 132 25 546 ------ ------ ------ ------ $1,128 $ 722 $ 44 $2,075 ====== ====== ====== ======installment will be reduced to $7,000 each and the remaining 14 installments will be of $37,000. The Company, considering the probability of collection, decided to establish an allowance of $597,000 on the amount that was not collected. As of December 31, 2002 $71,000 were repaid on account of the sale consideration.NOTE 12 - IMPAIRMENT OF GOODWILL During 2001,F-17
MARNETICS BROADBAND TECHNOLOGIES LTD.
(A Development Stage Company)
Notes to the Consolidated Financial StatementsNote 11 –Transactions with related parties in
view of the markets downstream, the Company assessed the value and future benefit of its enterprise level goodwill pursuant to Accounting Principles Board Opinion No. 17, "Intangible Assets" ("APB 17"previous years (cont.)(see Note 1 & 3b). The result of the assessment was a full write-off of the goodwill in the amount of $9,309,000. NOTE 13 - SUBSEQUENT EVENTS - UNAUDITED Speedwise is actively seeking additional funds to enable it to continue its operations through the end of the year. If such additional funds will not be available for Speedwise or if a business combination is effected with Speedwise reflecting a lower value for Speedwise than the carrying amount, some or all of the Company's investment may not be recoverable. (see Note 4) -18-
(4)
To secure his obligations under the various agreements Mr. Strikovsky has collateralized 300,000 shares that he owns of the Company. No other payments were made by Mr. Strikovski subsequent to December 31, 2002.
(5)
On September 10, 2003 the Company filed a lawsuit against Mr. Strikovsky and companies under his control for about NIS 3.2 million ($about $700,000), alleging default in loan repayment as well as amounts due from the sale of the Company’s electrical business. The Company obtained a court order for the seizure of certain notes credited to the defendants by the Municipality of Hod Hasharon.
The defendants have not yet filed any defense motion.
Following the failure of the defendants to file a defense motion the Company learned that Mr. Strikovsky filed a request for liquidation and has already begun the statutory steps required for that purpose; consequently, the Company asked the court to retrieve its lawsuit. Within the framework of the liquidation proceedings the first creditors meeting was called for July 14, 2004.
F-18