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Heritage Global Inc. - Quarter Report: 2004 September (Form 10-Q)

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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

     
x   QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2004

OR

     
o   TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from            to

Commission file number: 0-17973

ACCERIS COMMUNICATIONS INC.

(Exact name of registrant as specified in its charter)

     
FLORIDA   59-2291344
(State or other jurisdiction of    
incorporation or organization)   (I.R.S. Employer Identification No.)

9775 Businesspark Avenue, San Diego, California 92131
(Address of principal executive offices)

(858) 547-5700
(Registrant’s telephone number)

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 and Exchange Act of 1934 during the preceding 12 months (or for such shorter time period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

Check whether the registrant is an accelerated filed (as defined in Rule 12b-2 of the Act). Yes o No x

As of October 29, 2004, there were 19,237,101 shares of common stock $0.01 par value outstanding.



 


 

PART I  FINANCIAL INFORMATION

Item 1  Financial Statements.

ACCERIS COMMUNICATIONS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(unaudited)
                 
    September 30,   December 31,
(In thousands of dollars, except share and per share amounts)
  2004
  2003
            (as restated)
ASSETS
               
Current assets:
               
Cash and cash equivalents
  $ 1,348     $ 2,033  
Accounts receivable, less allowance for doubtful accounts of $2,267 and $1,764 at September 30, 2004 and December 31, 2003, respectively
    14,360       18,018  
Investment in preferred and common stock
          2,058  
Other current assets
    1,371       2,202  
 
   
 
     
 
 
Total current assets
    17,079       24,311  
Furniture, fixtures, equipment and software, net
    5,285       8,483  
Other assets:
               
Intangible assets, net
    2,302       3,297  
Goodwill
    1,120       1,120  
Investment in preferred stock
    1,100       1,100  
Other assets
    728       743  
 
   
 
     
 
 
Total assets
  $ 27,614     $ 39,054  
 
   
 
     
 
 
LIABILITIES AND STOCKHOLDERS’ DEFICIT
               
Current liabilities:
               
Accounts payable and accrued liabilities
  $ 28,651     $ 29,113  
Unearned revenue
    970       5,678  
Revolving credit facility
    7,265       12,127  
Current portion of notes payable
    145       1,254  
Current portion of obligations under capital leases
    2,140       2,715  
 
   
 
     
 
 
Total current liabilities
    39,171       50,887  
Notes payable, less current portion
    687       772  
Obligations under capital leases, less current portion
          1,631  
Notes payable to a related party, net of unamortized beneficial conversion features
    45,946       28,717  
 
   
 
     
 
 
Total liabilities
    85,804       82,007  
 
   
 
     
 
 
Commitments and contingencies
               
Stockholders’ deficit:
               
Preferred stock, $10.00 par value, authorized 10,000,000 shares, issued and outstanding 619 at September 30, 2004 and December 31, 2003, liquidation preference of $613 at September 30, 2004 and December 31, 2003
    6       6  

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    September 30,   December 31,
(In thousands of dollars, except share and per share amounts)
  2004
  2003
            (as restated)
Common stock, $0.01 par value, authorized 300,000,000 shares, issued and outstanding 19,237,101 at September 30, 2004 and 19,262,101 at December 31, 2003
    192       192  
Additional paid-in capital
    183,954       182,879  
Accumulated deficit
    (242,342 )     (226,030 )
 
   
 
     
 
 
Total stockholders’ deficit
    (58,190 )     (42,953 )
 
   
 
     
 
 
Total liabilities and stockholders’ deficit
  $ 27,614     $ 39,054  
 
   
 
     
 
 

The accompanying notes are an integral part of these condensed consolidated financial statements

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ACCERIS COMMUNICATIONS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(unaudited)
                                 
    Three Months Ended   Nine Months Ended
    September 30,
  September 30,
(In thousands of dollars, except per share amounts)
  2004
  2003
  2004
  2003
            (as restated)           (as restated)
Revenues:
                               
Telecommunications services
  $ 27,390     $ 35,002     $ 88,532     $ 101,364  
Technology licensing and development
          1,049       540       2,099  
 
   
 
     
 
     
 
     
 
 
Total revenues
    27,390       36,051       89,072       103,463  
 
   
 
     
 
     
 
     
 
 
Operating costs and expenses:
                               
Telecommunications network expense (exclusive of depreciation expense on telecommunications network assets of $1,222 and $1,012 for the three months ended September 30, 2004 and 2003, respectively, and $3,861 and $3,098 for the nine months ended September 30, 2004 and 2003, respectively, included in depreciation and amortization below)
    15,349       20,073       47,461       67,141  
Selling, general and administrative
    13,992       13,981       42,828       42,822  
Provision for doubtful accounts
    941       1,466       3,908       3,772  
Research and development
    119             225        
Depreciation and amortization
    1,520       1,993       4,877       5,577  
 
   
 
     
 
     
 
     
 
 
Total operating costs and expenses
    31,921       37,513       99,299       119,312  
 
   
 
     
 
     
 
     
 
 
Operating loss
    (4,531 )     (1,462 )     (10,227 )     (15,849 )
 
   
 
     
 
     
 
     
 
 
Other income (expense):
                               
Interest expense
    (2,562 )     (3,398 )     (8,583 )     (9,707 )
Interest and other income
    226       53       2,415       56  
 
   
 
     
 
     
 
     
 
 
Total other income (expense)
    (2,336 )     (3,345 )     (6,168 )     (9,651 )
 
   
 
     
 
     
 
     
 
 
Loss from continuing operations
    (6,867 )     (4,807 )     (16,395 )     (25,500 )
Gain from discontinued operations (net of $0 tax)
          213       104       307  
 
   
 
     
 
     
 
     
 
 
Net loss
  $ (6,867 )   $ (4,594 )   $ (16,291 )   $ (25,193 )
 
   
 
     
 
     
 
     
 
 
Basic and diluted weighted average shares outstanding
    19,261       5,834       19,262       5,834  
Net loss per common share – basic and diluted:
                               
Loss from continuing operations
  $ (0.36 )   $ (0.83 )   $ (0.85 )   $ (4.37 )
Gain from discontinued operations
          0.04       0.01       0.05  
 
   
 
     
 
     
 
     
 
 
Net loss per common share
  $ (0.36 )   $ (0.79 )   $ (0.84 )   $ (4.32 )
 
   
 
     
 
     
 
     
 
 

The accompanying notes are an integral part of these condensed consolidated financial statements

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ACCERIS COMMUNICATIONS INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(unaudited)
                 
    Nine Months Ended
    September 30,
(In thousands of dollars)
  2004
  2003
            (as restated)
Cash flows from operating activities:
               
Net loss
  $ (16,291 )   $ (25,193 )
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation and amortization
    4,877       5,577  
Provision for doubtful accounts
    3,908       3,772  
Amortization of discount on notes payable to related party
    3,296       3,905  
Accrued interest added to loan principal
    3,084       3,230  
Gain on sale of investment in common stock
    (1,376 )      
Gain on discharge of obligation
    (971 )      
Decrease in allowance for impairment of net assets of discontinued operations
    (148 )     (169 )
Expense associated with stock options issued to non-employee for services
    7        
Settlement of note payable
          (394 )
Management benefit conferred by controlling shareholder
    198        
Stock received as payment on technology licensing agreement
          (1,100 )
 
   
 
     
 
 
 
    (3,416 )     (10,372 )
Increase (decrease) from changes in operating assets and liabilities, net of business acquisition:
               
Accounts receivable
    (250 )     (4,650 )
Net assets and liabilities of discontinued operations
          884  
Other assets
    826       (680 )
Unearned revenue
    (4,708 )     9,003  
Accounts payable and accrued liabilities
    326       3,520  
 
   
 
     
 
 
Net cash used in operating activities
    (7,222 )     (2,295 )
 
   
 
     
 
 
Cash flows from investing activities:
               
Purchases of furniture, fixtures, equipment and software
    (670 )     (1,636 )
Cash acquired in business acquisition
            149  
Cash received from sale of assets
          160  
Cash received from sale of investments in common stock, net
    3,581        
 
   
 
     
 
 
Net cash provided by (used in) investing activities
    2,911       (1,327 )
 
   
 
     
 
 
Cash flows from financing activities:
               
Proceeds from issuance of notes payable to related party
    11,702       650  
Proceeds from (repayment of) revolving credit facility, net
    (4,862 )     4,832  
Payment of capital lease and note payable obligations
    (2,104 )     (1,868 )
Payment of note payable to RSL Estate
    (1,104 )      
Purchase and retirement of common stock
    (21 )      
Costs paid by controlling shareholder
    15       64  
 
   
 
     
 
 
Net cash provided by financing activities
    3,626       3,678  
 
   
 
     
 
 
Increase (decrease) in cash and cash equivalents
    (685 )     56  
Cash and cash equivalents at beginning of period
    2,033       3,620  
 
   
 
     
 
 
Cash and cash equivalents at end of period
  $ 1,348     $ 3,676  
 
   
 
     
 
 

5


 

                 
    Nine Months Ended
    September 30,
(In thousands of dollars)
  2004
  2003
            (as restated)
Supplemental schedule of non-cash investing and financing activities:
               
Preferred stock received in exchange for assets of discontinued operations
  $   $ 1,691  
Notes payable incurred for the purchase of software and software licenses
  $   $ 921  
Other assets included in purchase price of Transpoint acquisition
  $   $ 2,836  

The accompanying notes are an integral part of these condensed consolidated financial statements

6


 

ACCERIS COMMUNICATIONS INC. AND SUBSIDIARIES

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands, except share and per share data)

Note 1  Description of Business and Principles of Consolidation

     The unaudited condensed consolidated financial statements include the accounts of Acceris Communications Inc. (formerly I-Link Incorporated) and its wholly owned subsidiaries Acceris Communications Corp. (“ACC,” formerly WorldxChange Corp.); I-Link Communications Inc., (“ILC”), which is substantially included in discontinued operations; Transpoint Holdings Corporation, which includes the purchased assets of Transpoint Communications, LLC and the purchased membership interest in Local Telecom Holdings, LLC (collectively, “Transpoint”), which the Company purchased in July 2003; and Acceris Communications Technologies, Inc. These entities combined are referred to as “Acceris” or the “Company” in these unaudited condensed consolidated financial statements.

     We are a broad-based communications company, servicing residential, small and medium-sized businesses and corporate accounts in the United States. We provide a range of products from local dial tone, domestic and international long-distance voice services to fully managed, integrated data and enhanced services. We are a US facilities-based carrier with points of presence in 30 major US cities. Our voice network features 11 voice switches and nationwide Feature Group D (“FGD”) access. Our data network consists of 17 Nortel Passports that have recently been upgraded to support multi-protocol label switching (“MPLS”). Finally, we have relationships with multiple tier I and tier II providers in the U.S. and abroad.

     We currently manage our Company through two business segments. Our Telecommunications segment offers a broad selection of voice and data telecommunications products and services to residential and commercial customers through a network of independent agents, primarily via multi-level marketing (“MLM”) and commercial agent programs. Our Technologies segment offers a proven network convergence solution for voice and data in Voice over Internet Protocol (“VoIP”) communications technology and holds two foundational patents in the VoIP space (U.S. Patent Nos. 6,243,373 and 6,438,124, together the “VoIP Patents”). We are pursuing efforts to license the technology supported by our patents to carriers and equipment manufacturers and suppliers in the IP telephony market.

Telecommunications

     Our Telecommunications segment offers a broad range of voice and data products and services to residential, small office/home office (“SOHO”) and small-medium sized enterprises (“SME”), and corporate accounts through a network of MLM agents, commercial agents, affinity groups and outbound telemarketing. Our customers are serviced through direct sales and support teams who offer fully managed and fully integrated voice and data solutions.

     We have capitalized upon a unique synthesis of marketing and network capabilities. Through the strength of our agent network we are adding new customers each month, many of them with a strong international usage component. Due to our favorable cost structure and network optimization, we offer competitive rates to selected international regions. We continue to experience customer attrition particularly with our 10-10-XXX customer base which we have not marketed directly since 2002. We have also seen the average revenue per user (“ARPU”) decline. The Company’s domestic telephone network continues to operate at well below available capacity leading to cost inefficiencies. We attribute this to increased cellular penetration and deregulation in various countries which have lower rates per month in those markets. This is most evident in India in 2004. Additionally, regulatory uncertainty exists in the domestic telephone markets due to recent court decisions. Future regulatory changes may penalize or benefit the current operations of the business.

     We differentiate ourselves to our residential customers by offering attractively priced bundles of international minutes, both on a stand alone basis and as part of a local dial tone + long-distance package to

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preferred destinations, and by specialized customer service, which includes in-language customer support. By using this targeted strategy, we have acquired a substantial number of ethnic users whose monthly spending on telecommunications services is generally higher than that of the average retail customer.

     Our proprietary technology enables us to offer unbundled value-added services such as voicemail, unified messaging and on-the-fly conferencing at a low cost, creating another competitive advantage when targeting retail customers. These features distinguish us from mass-market providers that typically offer higher priced, “one-size-fits-all” national and international rate plans. We are in the process of productizing and deploying this technology.

     Our direct sales force focuses on multi-location customers with limited information technology (“IT”) resources. By taking a consultative approach to network solutions and providing in-depth analysis of our customers’ business needs and operating environments, we are able to design and deliver competitively priced and customized voice and data solutions. Our commercial customers also benefit from our relationships with multiple providers, which ensures superior service with respect to network redundancy, cost and supplier risk. We are able to offer strong customer service due to easy access to information and to our engineering, technical and administrative staffs.

Technologies

     Our Technologies segment offers a proven network convergence solution for the deployment of IP-based voice and data services over a single network. We have over nine years of experience developing VoIP technologies. Our proprietary soft-switch solution both enables existing telecom service providers to reduce telecommunications costs and permits new communications service providers to enter the enhanced communications market with limited investment. In addition, we have a patent portfolio that includes two VoIP patents (the “VoIP Patents”) which we believe are foundational VoIP patents for communications over traditional telecommunication networks. We are pursuing opportunities to leverage our patents through a focused licensing strategy that targets carriers, equipment vendors and customers who are deploying IP for phone-to-phone communication.

     All significant intercompany accounts and transactions have been eliminated upon consolidation.

     Management believes that the unaudited interim data includes all adjustments necessary for a fair presentation. The December 31, 2003, condensed consolidated balance sheet as restated herein is derived from audited consolidated financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States of America. The condensed consolidated financial statements should be read in conjunction with the Company’s annual report on Form 10-K/A#1, for the year ended December 31, 2003, filed with the Securities and Exchange Commission.

     These condensed consolidated financial statements have been prepared assuming that the Company will continue as a going concern and, accordingly, do not include any adjustments that might result from the outcome from this uncertainty. The independent registered public accounting firm’s report on the consolidated financial statements included in the Company’s annual report on Form 10-K/A#1 for the year ended December 31, 2003 contained an explanatory paragraph regarding the Company’s ability to continue as a going concern.

     The results of operations for the three and nine month periods ended September 30, 2004 are not necessarily indicative of those to be expected for the entire year ending December 31, 2004.

Note 2  Restatement

     The consolidated financial statements of the Company have been restated in each reporting period from the fourth quarter of 2002 through to the first quarter of 2004 to record additional deemed interest for beneficial conversion features (“BCF”) embedded in certain of the Company’s indebtedness as required by Emerging Issues Task Force Issue No. 00-27 (“EITF 00-27”). The restated numbers are included in the year to date results as presented in the accompanying consolidated financial statements and comparative figures.

     On September 20, 2004, management of the Company concluded that the accounting principles as set forth in EITF 00-27, regarding BCF, had not been properly applied in current and prior periods to its convertible debentures issued in a March 2001 loan agreement for which the Company had previously determined BCF of $1,100. The initial determination of the BCF in 2001 at the respective issue dates of such debt was correct. However, adjustments to the conversion price and the number of conversion shares

8


 

were made under the debentures’ anti-dilution provisions. The various anti-dilution events and their respective impacts on the number of shares and the conversion price were disclosed in the Company’s previous public filings. However, the principles under EITF 00-27 also require a redetermination of the BCF at each date an anti-dilution event occurred. This redetermination was not completed in prior reporting periods. Additionally, the accumulation of unpaid interest costs which are required by the debt terms to be added to principal and which are payable at maturity on these same convertible debentures has been deemed to be interest paid in kind (“PIK”); such interest also contains a conversion feature, and payment of such interest in the form of PIK interest is non-discretionary requiring the determination of BCF in the PIK interest. This determination was not made by the Company in its prior reportings.

     The Company’s management then concluded that a restatement was required and brought these matters for consideration before the Audit Committee and the full Board of Directors of the Company. Having considered the circumstances underlying the accounting errors and their effects upon the Company’s prior filings, and having discussed the matter with the Company’s management, the Audit Committee concluded that the previously issued financial statements should not be relied upon and approved and authorized the Company’s management to amend certain previously filed public reports to reflect deemed interest expense from such BCF. The refilings were completed on October 26, 2004.

     Although the error affects 2001, 2002 and 2003, the $23 cumulative effect on earnings through the third quarter of 2002 was recorded in the fourth quarter of 2002 as a charge to interest expense. Therefore, the correction is an increase in deemed interest expense and net loss, in all reporting periods from the fourth quarter of 2002 through the first quarter of 2004, and a reduction in reported liabilities and stockholders’ deficit in all reporting periods from the fourth quarter of 2002 through the first quarter of 2004. The effect of these errors is detailed, by reporting period, below. The restatement had no effect on loss from discontinued operations or net loss per share from discontinued operations.

Effect of the restatements on the consolidated statements of operations

(per share information reported on a post 20:1 stock consolidation basis for all periods shown. Stock consolidation enacted in the fourth quarter of 2003)

                                                 
    Three months   Three months   Three months   Three months   Three months   Three months
    ended   ended   ended   ended   ended   ended
    Dec. 31, 2002
  March 31, 2003
  June 30, 2003
  Sept. 30, 2003
  Dec. 31, 2003
  March 31, 2004
    (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
Net income (loss) as previously reported on Form 10-K or 10-Q
  $ (11,117 )   $ (14,895 )   $ (3,713 )   $ (3,257 )   $ (4,456 )   $ 594  
Correction of EITF 00-27 errors
    (301 )     (902 )     (1,089 )     (1,337 )     (1,779 )     (1,801 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net loss as currently reported on revised Form 10-K or 10-Q
  $ (11,418 )   $ (15,797 )   $ (4,802 )   $ (4,594 )   $ (6,235 )   $ (1,207 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net income (loss) per share as previously reported on Form 10-K or 10-Q
  $ (1.92 )   $ (2.55 )   $ (0.64 )   $ (0.56 )   $ (0.44 )   $ 0.03  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net loss per share as currently reported on revised Form 10-K or 10-Q
  $ (1.96 )   $ (2.71 )   $ (0.82 )   $ (0.79 )   $ (0.59 )   $ (0.06 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 

9


 

Effect of the restatements on the consolidated balance sheets

                                                 
    As at   As at   As at   As at   As at   As at
    Dec. 31, 2002
  March 31, 2003
  June 30, 2003
  Sept. 30, 2003
  Dec. 31, 2003
  March 31, 2004
    (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
Notes payable to a related party:
                                               
As previously reported on Form 10-K or 10-Q
  $ 30,058     $ 30,496     $ 30,985     $ 33,483     $ 35,073     $ 41,060  
Correction of EITF 00-27 errors
    (6,109 )     (5,364 )     (4,437 )     (3,265 )     (6,356 )     (4,834 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ 23,949     $ 25,132     $ 26,548     $ 30,218     $ 28,717     $ 36,226  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Additional paid-in capital:
                                               
As previously reported on Form 10-K or 10-Q
  $ 129,553     $ 129,553     $ 129,618     $ 129,618     $ 171,115     $ 171,192  
Correction of EITF 00-27 errors
    6,410       6,567       6,729       6,894       11,764       12,043  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ 135,963     $ 136,120     $ 136,347     $ 136,512     $ 182,879     $ 183,235  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Accumulated deficit
                                               
As previously reported on Form 10-K or 10-Q
  $ (194,301 )   $ (209,196 )   $ (212,909 )   $ (216,166 )   $ (220,622 )   $ (220,028 )
Correction of EITF 00-27 errors
    (301 )     (1,203 )     (2,292 )     (3,629 )     (5,408 )     (7,209 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ (194,602 )   $ (210,399 )   $ (215,201 )   $ (219,795 )   $ (226,030 )   $ (227,237 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Stockholders’ equity (deficit):
                                               
As previously reported on Form 10-K or 10-Q
  $ (63,925 )   $ (78,820 )   $ (82,468 )   $ (85,725 )   $ (49,309 )   $ (47,292 )
Correction of EITF 00-27 errors
    6,109       5,364       4,437       3,265       6,356       4,834  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ (57,816 )   $ (73,456 )   $ (78,031 )   $ (82,460 )   $ (42,953 )   $ (42,458 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 

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Note 3  Summary of Significant Accounting Policies

Net loss per share

     Basic earnings per share is computed based on the weighted average number of Acceris common shares outstanding during the period. Options, warrants, convertible preferred stock and convertible debt are included in the calculation of diluted earnings per share, except when their effect would be anti-dilutive. As the Company has a net loss for the three and nine month periods ended September 30, 2003 and 2004, basic and diluted loss per share are the same.

     Potential common shares that were not included in the computation of diluted earnings per share because they would have been anti-dilutive are as follows:

                 
    September 30, 2004
  September 30, 2003
Assumed conversion of Series N preferred stock
    24,760       24,760  
Assumed conversion of convertible debt
    2,657,886       6,587,550  
Assumed exercise of options and warrants to purchase shares of common stock
    2,353,550       436,650  
 
   
 
     
 
 
 
    5,036,196       7,048,960  
 
   
 
     
 
 

Investments

     Dividends and realized gains and losses on securities are included in other income in the condensed consolidated statements of operations.

     The Company holds an investment in convertible preferred stock of AccessLine Communications Corporation (“AccessLine”). The convertible preferred stock is accounted for under the cost method, as the preferred securities are not readily marketable and the Company’s ownership interests do not allow it to exercise significant influence over this entity. As of September 30, 2004 and December 31, 2003, the carrying value of the preferred stock was $1,100. The Company monitors this investment for impairment annually by considering current factors including economic environment, market conditions and operational performance and other specific factors relating to the business underlying the investment, and will record impairments in carrying values when necessary. The fair value of the security is estimated using the best available information as of the evaluation date, including the quoted market prices of comparable public companies, market price of the common stock underlying the preferred stock, recent financing rounds of the investee and other investee specific information. See Note 6 for further discussion of the Company’s investment in AccessLine convertible preferred stock.

Concentrations

Concentrations of risk with third party providers:

     Acceris utilizes the services of certain local exchange carriers (“LECs”) to bill and collect from customers for a significant portion of its revenues. If the LECs were unable or unwilling to provide such services in the future, the Company would be required to significantly enhance its billing and collection capabilities in a short amount of time and its collection experience may be adversely affected during this transition period. If the LECs were unable to remit payments received from their customers relating to Acceris billings, the Company’s operations and cash position may be adversely affected.

     The Company depends on certain large telecommunications carriers to provide network services for significant portions of the Company’s telecommunications traffic. If these carriers were unwilling or unable to provide such services in the future, the Company’s ability to provide services to its customers may be adversely affected and the Company might not be able to obtain similar services from alternative carriers on a timely basis or on terms favorable to the Company.

Concentrations of credit risk

     The Company’s retail telecommunications subscribers are primarily residential and small business subscribers in the United States. The Company’s customers are generally concentrated in the areas of

11


 

highest population in the United States, more specifically California, Florida, New York, Texas and Illinois. No single customer accounted for over 10% of revenues in the three and nine month periods ending September 30, 2004 or 2003. The Company monitors credit worthiness of its larger carrier and retail business customers.

Use of estimates

     The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Stock-based compensation

     At September 30, 2004, the Company had several stock-based compensation plans, which are described more fully in Note 18 to the audited consolidated financial statements contained in our most recently filed Form 10-K/A#1. The Company accounts for those plans under the recognition and measurement principles of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, and related Interpretations (collectively, “APB 25”). Stock-based employee compensation cost is not reflected in net loss, as all options granted under those plans had an exercise price equal to or in excess of the market value of the underlying common stock on the date of grant. In accordance with SFAS No. 123, Accounting for Stock-Based Compensation (“SFAS 123”), as amended by SFAS No. 148, Accounting for Stock-Based Compensation – Transition and Disclosure, see below for a tabular presentation of the pro forma stock-based compensation cost, net loss and loss per share as if the fair value-based method of expense recognition and measurement prescribed by SFAS 123 had been applied to all employee options. Options granted to non-employees (excluding non-employee members of the Company’s Board of Directors), consultants and marketing agents are recognized and measured using the fair value-based method prescribed by SFAS 123.

                                 
    Three Months Ended September 30,
  Nine Months Ended September 30,
    2004
  2003
  2004
  2003
            (as restated)           (as restated)
Net loss as reported
  $ (6,867 )   $ (4,594 )   $ (16,291 )   $ (25,193 )
Deduct:
                               
Employee stock-based compensation cost determined under the fair value-based method for all awards, net of $0 tax
    (116 )     (18 )     (454 )     (54 )
 
   
 
     
 
     
 
     
 
 
Pro forma net loss
  $ (6,983 )   $ (4,612 )   $ (16,745 )   $ (25,247 )
 
   
 
     
 
     
 
     
 
 
Net loss per share, basic and diluted:
                               
As reported
  $ (0.36 )   $ (0.79 )   $ (0.84 )   $ (4.32 )
Pro forma
  $ (0.36 )   $ (0.79 )   $ (0.87 )   $ (4.33 )

Note 4  Liquidity and Capital Resources.

     The Company has incurred substantial operating losses and negative cash flows from operations since inception. At September 30, 2004 the Company had a stockholders’ deficit of $58,190 ($42,953 – December 31, 2003), negative working capital of $22,092 ($26,576 – December 31, 2003), amounts due to its controlling shareholder of $45,946 ($28,717 – December 31, 2003) and $7,265 ($12,127 – December 31, 2003) are owing under its revolving credit facility (included in working capital). There are no additional borrowings available under the revolving credit facility at September 30, 2004.

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     The related party debt is owed to the Company’s controlling shareholder, Counsel Corporation (collectively with all its subsidiaries “Counsel”) and is due at December 31, 2005, subject to certain contingent acceleration clauses linked to the raising of capital. The Company has a funding commitment from Counsel to fund, through long-term intercompany advances or equity contributions, all capital investment, working capital or other operational cash requirements (the “Keep Well”) through June 30, 2005. During the first nine months of 2004, Counsel advanced the Company $11,702 under the Keep Well, and converted $3,084 of accrued interest into principal. In October 2004, Counsel agreed to subordinate all of its debt in the Company in favor of both the existing third party revolving credit facility and the newly issued third party convertible term note (discussed below). Under the subordination agreements, Counsel further agreed to guarantee the Company’s revolving credit facility and convertible term note and to pledge all of its shares owned in the Company as security for the related debts.

     The revolving credit facility is provided by an asset based lender. The asset based lender is secured by a first lien on all of the assets of Acceris. Borrowings under the facility are based on various advance rates of the accounts receivable base subject to certain reductions and covenants. Amounts available under the asset based facility are subject to change based upon the level of receivables and other related factors, such as the aging of accounts, customer concentrations, etc. The facility matures on June 30, 2005. The Company is looking to extend the term of the facility beyond its current maturity date, or to replace the facility prior to maturity.

     In August 2004, the Company implemented a resizing of the organization targeted at reducing its operating costs. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management has recorded approximately $400 in expenses related to the August 2004 restructuring, of which $326 was paid in the third quarter of 2004, recorded in selling, general and administration expense and anticipates that it will record expenses, in the fourth quarter, of $1,000 to $1,500 related to anticipated exit of facilities and the removal of assets from production.

     In October 2004, the Company entered into a Securities Purchase Agreement (the “Agreement”) for the sale by the Company of a Convertible Term Note (the “Note”) in the principal amount of $5,000 due October 14, 2007. The Note provides that the principal amount outstanding bears interest at the prime rate as published in the Wall Street Journal plus 3% (but not less than 7% per annum) decreasing by 2% (but not less than 0%) for every 25% increase in the Market Price (as defined therein) above the fixed conversion price following the effective date of the registration statement covering the Common Stock issuable upon conversion of the Note. Should the Company default under the agreement and fail to remedy the default on a timely basis, interest under the note will increase by 2% per month and the note may become immediately due inclusive of a 20% premium to the then outstanding principal. Interest is payable monthly in arrears, commencing November 1, 2004. Principal is payable at the rate of approximately $147 per month commencing January 1, 2005, in cash or registered common stock. Payment amounts will be converted into stock if (i) the average closing price for five trading days immediately preceding the repayment date is at least 100% of the Fixed Conversion Price, (ii) the amount of the conversion does not exceed 25% of the aggregate dollar trading volume for the 22-day trading period immediately preceding the repayment date, (iii) a registration statement is effective covering the issued shares and (iv) no Event of Default exists and is continuing. In the event the monthly payment must be paid in cash, then the Company shall pay 102% of the amount due in cash. The Company has the right to prepay the Note, in whole or in part, at any time by giving seven business days written notice and paying 120% of the outstanding principal amount of the Note. The holder may convert the Note, in whole or in part, into shares of Common Stock at any time upon one business day’s prior written notice. The Note is convertible into shares of the Company’s common stock at an initial fixed conversion price of $0.88 per share of common stock (105% of the average closing price for the 30 trading days prior to the issuance of the Note) not to exceed, however, 4.99% of the outstanding shares of common stock, of the Company (including issuable shares from the exercise of the warrants, payments of interest, or any other shares owned).

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     The Company does not expect to generate net cash flow from operating activities in the remainder of 2004. In the first nine months of 2004, the Company has been funded primarily by increases in related party debt and with the proceeds from the sale of its shares of Buyers United Inc. (“BUI”). The October financing noted above is expected to fund the Company throughout the remainder of 2004. Should additional funds be required by the Company to operate the business such funds will be derived from proceeds from additional third party fund raises which may take the form of debt, equity or a hybrid instrument, or from the proceeds on the sale of assets or from advances under the Keep Well.

     Management intends to raise additional funds from third parties to support the operating needs of the business beyond 2004. Use of funds from such arrangements may include such uses as funding operations, improving working capital, repaying obligations of the business and funding future merger and acquisition activities. There can be no assurance that the Company’s capital raising efforts will be successful or can occur on favorable terms to existing security or debt holders.

     There continues to be no assurance that the Company will be able to improve its cash flow from operations, obtain additional third party financing, extend, repay or refinance its debt with Counsel, its asset based lender or the holder of the October 2004 Note on favorable terms, or obtain an extension of the existing funding commitment from Counsel or its asset based lender beyond their respective maturity dates. This circumstance raises substantial doubt about the Company’s ability to continue as a going concern. The accompanying condensed consolidated financial statements do not include any adjustments to reflect the possible future effects on the recoverability of assets and liquidation of liabilities that may result from this uncertainty.

Note 5  Composition of Certain Financial Statements Captions

     Furniture, fixtures, equipment and software consisted of the following:

                 
    September 30, 2004
  December 31, 2003
Telecommunications network equipment
  $ 14,520     $ 14,196  
Furniture, fixtures and office equipment
    4,313       4,059  
Building /leasehold improvements
    268       305  
Software and information systems
    2,107       1,986  
 
   
 
     
 
 
 
    21,208       20,546  
Less accumulated depreciation and amortization
    (15,923 )     (12,063 )
 
   
 
     
 
 
Total furniture, fixtures, equipment and software
  $ 5,285     $ 8,483  
 
   
 
     
 
 

     Included in telecommunications network equipment was $9,752 and $9,739 in assets acquired under capital leases at September 30, 2004 and December 31, 2003, respectively. Accumulated amortization on these leased assets was $8,164 and $6,382 at September 30, 2004 and December 31, 2003, respectively.

     Intangible assets consisted of the following:

                                 
    September 30, 2004
    Amortization           Accumulated    
    period
  Cost
  amortization
  Net
Intangible assets subject to amortization:
                               
Customer contracts and relationships
  12 - 60 months   $ 2,006     $ (961 )   $ 1,045  
Agent relationships
  36 months     2,116       (944 )     1,172  
Agent contracts
  12 months     242       (242 )      
Patents
  60 months     100       (15 )     85  
 
           
 
     
 
     
 
 
 
            4,464       (2,162 )     2,302  
Goodwill
            1,120             1,120  
 
           
 
     
 
     
 
 
Total intangible assets and goodwill
          $ 5,584     $ (2,162 )   $ 3,422  
 
           
 
     
 
     
 
 

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    December 31, 2003
    Amortization           Accumulated    
    period
  Cost
  amortization
  Net
Intangible assets subject to amortization:
                               
Customer contracts and relationships
  12 - 60 months   $ 2,006     $ (510 )   $ 1,496  
Agent relationships
  36 months     2,116       (415 )     1,701  
Agent contracts
  12 months     242       (242 )      
Patents
  60 months     100             100  
 
           
 
     
 
     
 
 
 
            4,464       (1,167 )     3,297  
Goodwill
            1,120             1,120  
 
           
 
     
 
     
 
 
Total intangible assets and goodwill
          $ 5,584     $ (1,167 )   $ 4,417  
 
           
 
     
 
     
 
 

     Amortization expense for the three months ended September 30, 2004 and 2003 was $298 and $583, respectively. Amortization expense for the nine months ended September 30, 2004 and 2003 was $995 and $980, respectively.

     Accounts payable and accrued liabilities consisted of the following:

                 
    September 30,   December 31,
    2004
  2003
Accounts payable
  $ 11,368     $ 3,370  
Telecommunications and related accruals
    2,729       9,840  
Regulatory fees
    7,899       6,790  
Other
    6,655       9,113  
 
   
 
     
 
 
 
  $ 28,651     $ 29,113  
 
   
 
     
 
 

Note 6  Investments

     Prior to June 21, 2004, the Company held an investment in the common stock of BUI, which investment was acquired as consideration received related to the sale of the operations of ILC. At the time of the sale of the ILC business, the purchase price consideration paid by BUI was in the form of convertible preferred stock, with additional shares of preferred stock received subsequently based on contingent earn out provisions in the purchase agreement. In addition, common stock dividends were earned on the preferred stock holding. On March 16, 2004, the Company converted its preferred stock into 1,500,000 shares of BUI common stock, and sold 750,000 shares at $2.30 per share in a private placement transaction. This sale resulted in a gain of approximately $565, which is included in interest and other income in the three months ended March 31, 2004 and was based on specific identification of the securities sold and their related cost basis. Through several open market transactions during the three months ended June 30, 2004, the Company sold the remaining 808,546 of these shares, resulting in a gain of approximately $811. These gains are included in other income in the accompanying condensed consolidated statements of operations for the three and nine months ended September 30, 2004.

     The Company’s investments as of September 30, 2004 consist of convertible preferred stock in AccessLine. This stock was received as consideration for a licensing agreement in the second quarter of 2003 and was reflected in technology licensing and development revenues for that quarter, at its carrying value of $1,100.

Note 7  Network Service Offering

     The Company, through its Telecommunications segment (see Note 16 for further discussion of the Company’s segments), began to sell a network service offering in November 2002. The Company ceased selling this network service offering in July 2003. Revenues for the Company’s network service offering

15


 

are accounted for using the unencumbered cash receipt method. The Company determined that collectibility of the amounts billed to customers was not reasonably assured at the time of billing. Under its agreements with the LECs, cash collections remitted to the Company are subject to adjustment, generally over several months. Accordingly, the Company recognizes revenue when the actual cash collections to be retained by the Company are finalized and unencumbered. There was no further billing of customers for the network service offering subsequent to the program’s termination. During the three and nine months ended September 30, 2004, the Company recognized $161 and $6,714, respectively, as non-recurring revenue from prior-year sales of this service offering as prior period cash collections were finalized.

     At March 31, 2004, the Company had not paid the service provider approximately $519 which was previously reserved pursuant to services provided in July 2003, which were expensed as a telecommunications cost in the third quarter of 2003. During the second quarter of 2004, a settlement was reached with the service provider whereby the Company paid approximately $300 to the service provider, rendering all parties free and clear of all future obligations under the program. The discharge of the remaining $219 obligation is included as an offset to telecommunications expense in the accompanying condensed consolidated statements of operations for the nine months ended September 30, 2004.

Note 8  Discharge of Obligation

     In the first quarter of 2004, the Company was discharged of an obligation totaling $767 owed to a consortium of owners of a certain telecommunications asset, to which the Company previously held an indefeasible right of usage. The discharge of the obligation is included in interest and other income in the accompanying condensed consolidated statements of operations for the nine months ended September 30, 2004.

     In the third quarter of 2004, the Company entered into a settlement agreement with the estate of WorldxChange Communications, Inc. ("Estate"), which resulted in the offset of a receivable of the Company with an obligation of the Company to the Estate. The effect was an increase of $204 in other income in the accompanying condensed consolidated statements of operations for the nine months ended September 30, 2004.

Note 9  Patent Residual Option

     In the fourth quarter of 2003, Acceris acquired Patent No. 6,243,373 from a third party. Consideration provided was $100 plus a 35% residual payable to the third party relating to the net proceeds from future licensing and or enforcement actions from the combined Acceris VoIP Patents (i.e. Patent No. 6,243,373 and 6,438,124). Net proceeds are defined as amounts collected from third parties net of the direct costs associated with putting the licensing or enforcement in place and related collection costs. At the time of closing, Acceris was granted the right to decrease the residual payable from 35% to 30% on or before June 30, 2004 for an additional payment of $614 and, based upon exercising the right to decrease the residual from 35% to 30%, Acceris would have the additional right to decrease its residual payable from 30% to 15% for an additional $5,000. In the second quarter, Acceris was granted an extension through July 31, 2004 of its right to decrease the residual from 35% to 30% for no additional consideration by the arms length party. Acceris has subsequently been granted additional extensions of its right to decrease its residual from 35% to 30% through November 30, 2004 for no additional consideration. The additional right to decrease the residual from 30% to 15%, which is preconditioned on the decrease of residual from 35% to 30% remains in full force and effect.

Note 10  Discontinued Operations

      On December 6, 2002, the Company entered into an agreement to sell substantially all of the assets and customer base of ILC to BUI. The sale included the physical assets required to operate Acceris’ nationwide network using its patented VoIP technology (constituting the core business of ILC) and a non-exclusive license in perpetuity to use Acceris’ proprietary software platform. The sale closed on May 1, 2003 and provided for a post closing cash settlement between the parties. The sale price consisted of 300,000 shares of Series B convertible preferred stock (8% dividend) of BUI, subject to adjustment in certain

16


 

circumstances, of which 75,000 shares were subject to an earn-out provision (contingent consideration). The fair value of the 225,000 shares (non-contingent consideration) of BUI convertible preferred stock was determined to be $1,350 as of December 31, 2002. The earn-out took place on a monthly basis over a fourteen-month period, which began January 2003. The Company recognized the value of the earn-out shares as additional sales proceeds when earned. During the year ended December 31, 2003, 64,286 shares of the contingent consideration with a fair value of $566 were earned and included as a component of gain (loss) from discontinued operations. As of December 31, 2003, the combined fair value of the 225,000 original shares and the 64,286 shares earned from the contingent consideration was determined to be $1,916. See Note 6 for a discussion of the disposition of these shares in the nine months ended September 30, 2004.

     In the first quarter of 2004, the Company recorded a gain from discontinued operations of $104. This gain was due to the receipt in January 2004 of the remaining 10,714 shares of common stock as contingent consideration, which is recorded as additional gain from discontinued operations. Upon closing of the sale, BUI assumed all operational losses subsequent to December 2002. Accordingly, the gains of $213 and $307 for the three and nine months ended September 30, 2003, respectively, include the increase in the sales price for the losses incurred after December 6, 2002.

Note 11  Income Taxes

     The Company recognized no income tax benefit from the losses generated in the nine months ended September 30, 2004 and 2003 because of the uncertainty surrounding the realization of the related deferred tax asset. Pursuant to Section 382 of the Internal Revenue Code, annual usage of the Company’s net operating loss carryforwards is limited to approximately $6,700 per annum until 2008 and thereafter $1,700 per annum as a result of previous cumulative changes of ownership resulting in a change of control of the Company. These rules in general provide that an ownership change occurs when the percentage shareholdings of 5% direct or indirect shareholders of a loss corporation have in aggregate increased by more than 50 percentage points during the immediately preceding three years. Restrictions in net operating loss carry forwards occurred in 2001 as a result of the acquisition of the Company by Counsel. Further restrictions likely have occurred as a result of subsequent changes in the share ownership and capital structure of the Company and Counsel. There is no certainty that the application of these rules may not reoccur resulting in further restrictions on the Company’s income tax loss carry forwards existing at a particular time. Any such additional limitations could require the Company to pay income taxes in the future and record an income tax expense to the extent of such liability.

Note 12  Related Party Transactions

     During the nine months ended September 30, 2004, Counsel, Acceris’ controlling shareholder, advanced $11,702 and converted $3,084 of interest payable to principal. All loans from Counsel mature on December 31, 2005 and accrue interest at rates ranging from 9% to 10%, with interest compounding quarterly and some of the loans are subject to an accelerated maturity in certain circumstances. At September 30, 2004, no events resulting in accelerated maturity had occurred. The Keep Well from Counsel expires on June 30, 2005 and provides a commitment to fund through long-term intercompany advances or equity contributions, all capital investment, working capital or other operational cash requirements of the Company.

     The Chief Executive Officer (“CEO”) of Acceris is an employee of Counsel. As CEO of Acceris, he is entitled to an annual salary of $275 and a discretionary bonus of up to 100% of the base salary. Such compensation is expensed and paid by Acceris.

     Counsel provided additional management services through Acceris’ President, Chief Financial Officer, Corporate Secretary, and from time to time corporate finance staff who are also employees of Counsel. No contractual arrangement exists for these services so the contribution of these individuals are considered as a conferred benefit by the controlling shareholder resulting in the recording of an expense of $198 for the nine months ended September 30, 2004. This expense is included in selling, general and administrative expenses and results in an increase in paid-in capital.

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Note 13 – Commitments and Contingencies

Legal Proceedings

     On April 16, 2004, certain shareholders of the Company (the “Plaintiffs”) filed a putative derivative complaint in the Superior Court of the State of California in and for the County of San Diego, (the “Complaint”) against the Company, WorldxChange Corporation (sic), Counsel Communications LLC, and Counsel Corporation as well as certain present and former officers and directors of the Company, some of whom also are or were directors and/or officers of the other corporate defendants (collectively, the “Defendants”). The Complaint alleges, inter alia, that the Defendants, in their respective roles as controlling shareholder and directors and officers of the Company committed breaches of the fiduciary duties of care, loyalty and good faith and were unjustly enriched, and that the individual Defendants committed waste of corporate assets, abuse of control and gross mismanagement. The Plaintiffs seek compensatory damages, restitution, disgorgement of allegedly unlawful profits, benefits and other compensation, attorneys’ fees and expenses in connection with the Complaint. The Company believes that these claims in their entirety are without merit and intends to vigorously defend this action. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     Acceris and several of Acceris’ current and former executives and board members were named in a securities action filed in the Superior Court of the State of California in and for the County of San Diego on April 16, 2004, in which the plaintiffs made claims nearly identical to those set forth in the derivative suit above. The Company believes that these claims in their entirety are without merit and intends to vigorously defend this action. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     In connection with the Company’s efforts to enforce its patent rights, Acceris Communications Technologies Inc. filed a patent infringement lawsuit against ITXC Corp. (“ITXC”) in the United States District Court of the District of New Jersey on April 14, 2004. The complaint alleges that ITXC’s VoIP services and systems infringe the Company’s U.S. Patent No. 6,243,373, entitled “Method and Apparatus for Implementing a Computer Network/Internet Telephone System.” On May 7, 2004, ITXC filed a lawsuit against Acceris Communications Technologies Inc., and the Company, in the United States District Court for the District of New Jersey for infringement of five ITXC patents relating to VoIP technology, directed generally to the transmission of telephone calls over the Internet and the completion of telephone calls by switching them off the Internet and onto a public switched telephone network. The Company believes that the allegations contained in ITXC’s complaint are, in their entirety, without merit and the Company intends to provide a vigorous defense to ITXC’s claims. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     At our Adjourned Meeting of Stockholders held on December 30, 2003, our stockholders approved an amendment to our Articles of Incorporation, deleting Article VI thereof (regarding liquidations, reorganizations, mergers and the like). Stockholders who were entitled to vote at the meeting and advised us in writing, prior to the vote on the amendment, that they dissented and intended to demand payment for their shares if the amendment was effectuated, were entitled to exercise their appraisal rights and obtain payment in cash for their shares under Sections 607.1301 – 607.1333 of the Florida Business Corporation Act, provided their shares were not voted in favor of the amendment. In January 2004, appraisal notices in compliance with Florida corporate statutes were sent to all stockholders who had advised us of their intention to exercise their appraisal rights. The appraisal notices included our estimate of fair value of our shares, being $4.00 per share on a post-split basis. These stockholders had until February 29, 2004 to return their completed appraisal notices along with certificates for the shares for which they were exercising their appraisal rights. Approximately 33 stockholders holding approximately 74,000 shares of our stock returned completed appraisal notices by February 29, 2004. A stockholder of 20 shares notified us of his acceptance of our offer of $4.00 per share, while the stockholders of the remaining shares did not accept our offer. Subject to the qualification that we may not make any payment to a stockholder seeking appraisal rights if, at the time of payment, our total assets are less than our total liabilities, stockholders who accepted our

18


 

offer to purchase their shares at the estimated fair value will be paid for their shares within 90 days of our receipt of a duly executed appraisal notice. If we should be required to make any payments to dissenting stockholders, Counsel will fund any such amounts through the purchase of shares of our common stock. Stockholders who did not accept our offer were required to indicate their own estimate of fair value, and if we do not agree with such estimates, the parties are required to go to court for an appraisal proceeding on a individual basis, in order to establish a fair value. Because Acceris did not agree with the estimates submitted by most of the dissenting shareholders, Acceris has sought a judicial determination of the fair value of the common stock held by the dissenting stockholders. On June 24, 2004, Acceris filed suit against the dissenting shareholders seeking a declaratory judgment, appraisal and other relief in the Circuit Court for the 17th Judicial District in Broward County, Florida. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on our business, results of operations, financial position or liquidity.

     The Company is involved in various other legal matters arising out of its operations in the normal course of business, none of which are expected, individually or in the aggregate, to have a material adverse effect on the Company.

Note 14  Agent Warrant Program

     During the first quarter of 2004, the Company launched the Acceris Communications Inc. Platinum Agent Program (the “Agent Warrant Program”), which provides for the issuance of warrants to purchase up to 1,000,000 shares of the Company’s common stock to independent agents who participate in the Agent Warrant Program. The Agent Warrant Program was established to encourage and reward consistent, substantial and persistent production by selected commercial agents serving the Company’s domestic markets and to strengthen the Company’s relationships with these agents by granting long-term incentives in the form of the warrants to purchase the Company’s common stock at current price levels. The Agent Warrant Program is administered by the Compensation Committee of the Board of Directors of the Company.

     Participants in the Agent Warrant Program will be granted warrants upon commencement, the vesting of which is based on maintaining certain revenue levels for a period of 24 months. The grants are classified into tiers based on commissionable revenue levels, the vesting period of which begins upon the achievement of certain commissionable revenue levels during the eighteen month period beginning February 1, 2004. Vesting of the warrants within each tier occurs 50% after 12 months and 100% after 24 months, dependent on the agent maintaining the associated commissionable revenue levels for the entire period of vesting.

     As of September 30, 2004, 600,000 warrants have been issued under the Agent Warrant Program, none of which have met the requirements to begin vesting. The warrants issued under the plan are accounted for under the provisions of the FASB’s Emerging Issue Task Force’s (“EITF”) Issue No. 96-18, Accounting for Equity Instruments That are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling, Goods or Services (“EITF 96-18”). Accordingly, the Company will recognize an expense associated with these warrants over the vesting period based on the then current fair market value of the warrants calculated at each reporting period. At such time as the vesting for any warrants begins, the expense will be included in selling, general and administrative expense. As the vesting period has not commenced for any of the warrants issued prior to September 30, 2004, no expense has been recognized in the accompanying condensed consolidated statements of operations for the three and nine months ended September 30, 2004.

Note 15  Subsequent Event

     In October 2004, the Company entered into an agreement for the sale by the Company of a Convertible Term Note in the principal amount of $5,000 due October 14, 2007. The Note provides that the principal amount outstanding bears interest at the prime rate as published in the Wall Street Journal plus 3% (but not less than 7% per annum) decreasing by 2% (but not less than 0%) for every 25% increase in the Market Price (as defined therein) above the fixed conversion price following the effective date of the registration statement covering the Common Stock issuable upon conversion of the Note. Should the Company default under the agreement and fail to remedy the default on a timely basis,

19


 

interest under the note will increase by 2% per month and the note may become immediately due inclusive of a 20% premium to the then outstanding principal. Interest is payable monthly in arrears, commencing November 1, 2004. Principal is payable at the rate of approximately $147 per month commencing January 1, 2005, in cash or registered common stock. Payment amounts will be converted into stock if (i) the average closing price for five trading days immediately preceding the repayment date is at least 100% of the Fixed Conversion Price, (ii) the amount of the conversion does not exceed 25% of the aggregate dollar trading volume for the 22-day trading period immediately preceding the repayment date, (iii) a registration statement is effective covering the issued shares and (iv) no Event of Default exists and is continuing. In the event the monthly payment must be paid in cash, then the Company shall pay 102% of the amount due in cash. The Company has the right to prepay the Note, in whole or in part, at any time by giving seven business days written notice and paying 120% of the outstanding principal amount of the Note. The holder may convert the Note, in whole or in part, into shares of Common Stock at any time upon one business day’s prior written notice. The Note is convertible into shares of the Company’s common stock at a fixed conversion price of $0.88 per share of common stock (105% of the average closing price for the 30 trading days prior to the issuance of the Note) not to exceed, however, 4.99% of the outstanding shares of common stock, of the Company (including issuable shares from the exercise of the warrants, payments of interest, or any other shares owned).

      Pursuant to a Master Security Agreement, the Company granted a blanket lien on all its property and that of certain of its subsidiaries to secure repayment of the obligation and, pursuant to a Stock Pledge Agreement, Counsel Communications, LLC and Counsel Corporation (US) pledged the shares of the Company held by it as further security. In addition, Acceris Communications Technologies, Inc., Acceris Communications Corp., Counsel Corporation and Counsel Communications LLC and Counsel Corporation (US) jointly and severally guaranteed the obligations to the Lender. The Company paid a closing fee of 3.9% of the aggregate principal amount of the Note or $195 and reimbursed the Purchaser for its expenses in connection with the transaction in the aggregate amount of $31. So long as 25% of principal amount of the Note is outstanding, the Company agreed that it will not pay dividends on its Common Stock, among other things.

      In addition, the Company issued its Common Stock Purchase Warrant (the “Warrant”) to the Purchaser, entitling the Purchaser to purchase up to one million shares of common stock, subject to adjustment. The Warrant entitles the Purchaser to purchase the stock through the earlier of (i) October 13, 2009 or (ii) the date on which the average closing price for any consecutive ten trading dates shall equal or exceed 15 times the Exercise Price. The Exercise Price shall equal $1.00 per share as to the first 250,000 shares, $1.08 per share for the next 250,000 shares and $1.20 per share for the remaining 500,000 shares, or 125%, 135% and 150% of the average closing price for ten trading days immediately prior to the date of the Warrant, respectively. The Company agreed, pursuant to a Registration Rights Agreement, to file, within 30 days, a registration statement under the Securities Act of 1933, as amended, to register the shares issuable upon conversion of the Note as well as those issuable pursuant to the Warrant.

     The Company is in the process of assessing the appropriate accounting for this multi-element financial instrument.

Note 16  Segment Reporting

     In the first quarter of 2004, the Company changed the structure of its internal organization and the method upon which it evaluates its performance. Previously, the Company had three segments consisting of Enterprise, Retail and Technologies, which primarily distinguished themselves by the product offerings available. In the first quarter of 2004, management began to evaluate the Company as two divisions consisting of Telecommunications and Technologies. The Company uses the information available by division to evaluate management and Company performance and to make decisions regarding the allocation of Company assets. Telecommunications includes the operations of the assets and liabilities purchased from WorldxChange in June 2001 and the Agent and Enterprise businesses of RSL.Com Inc. (“RSL”), which were acquired in December 2002. This segment offers a dial around telecommunications product, a 1+ product and a local dial tone bundled offering through MLM, commercial agents and telemarketing channels. This segment also offers voice and data solutions to business customers through an in-house sales force. The Technologies segment offers a fully developed network convergence solution for voice and data and licenses its technology to third party users. Prior period amounts have been restated to conform to this presentation.

     There are no material inter-segment revenues. The Company’s business is conducted principally in the U.S.; foreign operations are not significant. The table below presents information about the segments of the Company as of and for the three and nine months ended September 30, 2004.

                                 
    For the three months   For the nine months
    ended September 30,
  ended September 30,
    2004
  2003
  2004
  2003
            (as restated)           (as restated)
Revenues from external customers:
                               
Telecommunications
  $ 27,390     $ 35,002     $ 88,532     $ 101,364  
Technologies
          1,049       540       2,099  
 
   
 
     
 
     
 
     
 
 
Total revenues from external customers for reportable segments
  $ 27,390     $ 36,051     $ 89,072     $ 103,463  
 
   
 
     
 
     
 
     
 
 
Segment income (loss):
                               
Telecommunications
  $ (3,745 )   $ (2,319 )   $ (8,536 )   $ (17,034 )
Technologies
    (336 )     767       (744 )     1,169  
 
   
 
     
 
     
 
     
 
 
Total segment income (loss) for reportable segments
    (4,081 )     (1,552 )     (9,280 )     (15,865 )
Unallocated amounts in consolidated net loss:
                               
Amortization of discount on notes payable
          (170 )     (104 )     (502 )

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    For the three months   For the nine months
    ended September 30,
  ended September 30,
    2004
  2003
  2004
  2003
            (as restated)           (as restated)
Gain on discharge of obligation
    204             971        
Gain on sale of investment in common stock
                1,376        
Corporate interest expense
    (2,509 )     (2,466 )     (8,282 )     (6,781 )
Other corporate expenses, net
    (481 )     (619 )     (1,076 )     (2,352 )
 
   
 
     
 
     
 
     
 
 
Consolidated net loss from continuing operations
  $ (6,867 )   $ (4,807 )   $ (16,395 )   $ (25,500 )
 
   
 
     
 
     
 
     
 
 

21


 

Item 2  Management’s Discussion and Analysis of Financial Condition and Results of Operations.

     The following discussion should be read in conjunction with the information contained in the condensed consolidated financial statements of the Company and the related notes thereto appearing elsewhere herein and in conjunction with the Management’s Discussion and Analysis of Financial Condition and Results of Operations set forth in the Company’s Form 10-K/A#1 for the year ended December 31, 2003 filed with the Securities and Exchange Commission (“SEC”). All numbers are in thousands of dollars except for share, per share data and customer counts.

Forward Looking Information

     This report contains certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act of 1934, as amended that are based on management’s exercise of business judgment as well as assumptions made by and information currently available to management. When used in this document, the words “may,” "will,” “anticipate,” “believe,” “estimate,” “expect,” “intend” and words of similar import, are intended to identify any forward-looking statements. You should not place undue reliance on these forward-looking statements. These statements reflect our current view of future events and are subject to certain risks and uncertainties as noted below. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, our actual results could differ materially from those anticipated in these forward-looking statements. We undertake no obligation and do not intend to update, revise or otherwise publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date hereof or to reflect the occurrence of any unanticipated events. Although we believe that our expectations are based on reasonable assumptions, we can give no assurance that our expectations will materialize.

     Many factors could cause actual results to differ materially from our forward-looking statements. Several of these factors, which are more fully discussed in our Annual Report on Form 10-K/A # 1 for the year ended December 31, 2003, include, without limitation:

1)   Our ability to:

  finance and manage growth;

  execute on the strategy and the business plans of management;

  maintain our relationship with telecommunications carriers;

  provide ongoing competitive services and pricing;

  retain and attract key personnel;

  operate effective network facilities;

  maintain favorable relationships with local exchange carriers (“LECs”), long-distance providers and other vendors, including our ability to meet our usage commitments;

  attract new subscribers while minimizing subscriber attrition;

  continue to grow the distribution for our Telecommunications segment through multi level marketing (“MLM”), residential and commercial agents, and with our direct sales force;

  continue to offer competitive local dial tone, long distance and data products and to expand the geographic reach of our local dial tone offering;

22


 

  efficiently integrate completed acquisitions;

  address legal proceedings in an effective manner;

  maintain, operate and upgrade our information systems network;

  maintain and operate our networks in a cost effective manner;

  extend our related party debt beyond its December 31, 2005 maturity date or replace such debt on acceptable terms;

  obtain Counsel’s continued commitment and ability to fund through June 30, 2005, the cash requirements of the business;

  complete third party debt or equity financing;

  extend our asset based lending facility beyond its June 30, 2005 maturity or replace the facility on acceptable terms;

  maintain compliance with existing and evolving federal and state governmental regulation of telecommunications providers;

   respond to regulatory changes on a timely and cost effective basis;

     2) Adoption of new, or changes in, accounting principles; and

     3) Other risks referenced from time to time in our filings with the SEC and the Federal Communications Commission.

Restatement

     The consolidated financial statements of the Company have been restated in each reporting period from the fourth quarter of 2002 through to the first quarter of 2004 to record additional deemed interest for beneficial conversion features (“BCF”) embedded in certain of the Company’s indebtedness as required by Emerging Issues Task Force Issue No. 00-27 (“EITF 00-27”). The restated numbers are included in the year to date results as presented in the accompanying consolidated financial statements and comparative figures.

     On September 20, 2004, management of the Company concluded that the accounting principles as set forth in EITF 00-27, regarding BCF, had not been properly applied in current and prior periods to its convertible debentures issued in a March 2001 loan agreement for which the Company had previously determined BCF of $1,100. The initial determination of the BCF in 2001 at the respective issue dates of such debt was correct. However, adjustments to the conversion price and the number of conversion shares were made under the debentures’ anti-dilution provisions. The various anti-dilution events and their respective impacts on the number of shares and the conversion price were disclosed in the Company’s previous public filings. However, the principles under EITF 00-27 also require a redetermination of the BCF at each date an anti-dilution event occurred. This redetermination was not completed in prior reporting periods. Additionally, the accumulation of unpaid interest costs which are required by the debt terms to be added to principal and which are payable at maturity on these same convertible debentures has been deemed to be interest paid in kind (“PIK”); such interest also contains a conversion feature, and payment of such interest in the form of PIK interest is non-discretionary requiring the determination of BCF in the PIK interest. This determination was not made by the Company in its prior reportings.

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     The Company’s management then concluded that a restatement was required and brought these matters for consideration before the Audit Committee and the full Board of Directors of the Company. Having considered the circumstances underlying the accounting errors and their effects upon the Company’s prior filings, and having discussed the matter with the Company’s management, the Audit Committee concluded that the previously issued financial statements should not be relied upon and approved and authorized the Company’s management to amend certain previously filed public reports to reflect deemed interest expense from such BCF. The refilings were completed on October 26, 2004.

     Although the error affects 2001, 2002 and 2003, the $23 cumulative effect on earnings through the third quarter of 2002 was recorded in the fourth quarter of 2002 as a charge to interest expense. Therefore, the correction is an increase in deemed interest expense and net loss, in all reporting periods from the fourth quarter of 2002 through the first quarter of 2004, and a reduction in reported liabilities and stockholders’ deficit in all reporting periods from the fourth quarter of 2002 through the first quarter of 2004. The effect of these errors is detailed, by reporting period, below. The restatement had no effect on loss from discontinued operations or net loss per share from discontinued operations.

Effect of the restatements on the consolidated statements of operations

(per share information reported on a post 20:1 stock consolidation basis for all periods shown. Stock consolidation enacted in the fourth quarter of 2003)

                                                 
    Three months   Three months   Three months   Three months   Three months   Three months
    ended   ended   ended   ended   ended   ended
    Dec. 31, 2002
  March 31, 2003
  June 30, 2003
  Sept. 30, 2003
  Dec. 31, 2003
  March 31, 2004
    (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
Net income (loss) as previously reported on Form 10-K or 10-Q
  $ (11,117 )   $ (14,895 )   $ (3,713 )   $ (3,257 )   $ (4,456 )   $ 594  
Correction of EITF 00-27 errors
    (301 )     (902 )     (1,089 )     (1,337 )     (1,779 )     (1,801 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net loss as currently reported on revised Form 10-K or 10-Q
  $ (11,418 )   $ (15,797 )   $ (4,802 )   $ (4,594 )   $ (6,235 )   $ (1,207 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net income (loss) per share as previously reported on Form 10-K or 10-Q
  $ (1.92 )   $ (2.55 )   $ (0.64 )   $ (0.56 )   $ (0.44 )   $ 0.03  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Net loss per share as currently reported on revised Form 10-K or 10-Q
  $ (1.96 )   $ (2.71 )   $ (0.82 )   $ (0.79 )   $ (0.59 )   $ (0.06 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 

Effect of the restatements on the consolidated balance sheets

                                                 
    As at   As at   As at   As at   As at   As at
    Dec. 31, 2002
  March 31, 2003
  June 30, 2003
  Sept. 30, 2003
  Dec. 31, 2003
  March 31, 2004
    (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
Notes payable to a related party:
                                               
As previously reported on Form 10-K or 10-Q
  $ 30,058     $ 30,496     $ 30,985     $ 33,483     $ 35,073     $ 41,060  
Correction of EITF 00-27 errors
    (6,109 )     (5,364 )     (4,437 )     (3,265 )     (6,356 )     (4,834 )
 
   
 
     
 
     
 
     
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ 23,949     $ 25,132     $ 26,548     $ 30,218     $ 28,717     $ 36,226  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Additional paid-in capital:
                                               
As previously reported on Form 10-K or 10-Q
  $ 129,553     $ 129,553     $ 129,618     $ 129,618     $ 171,115     $ 171,192  
Correction of EITF 00-27 errors
    6,410       6,567       6,729       6,894       11,764       12,043  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ 135,963     $ 136,120     $ 136,347     $ 136,512     $ 182,879     $ 183,235  
 
   
 
     
 
     
 
     
 
     
 
     
 
 

24


 

                                                 
    As at   As at   As at   As at   As at   As at
    Dec. 31, 2002
  March 31, 2003
  June 30, 2003
  Sept. 30, 2003
  Dec. 31, 2003
  March 31, 2004
    (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
  (unaudited)
Accumulated deficit
                                               
As previously reported on Form 10-K or 10-Q
  $ (194,301 )   $ (209,196 )   $ (212,909 )   $ (216,166 )   $ (220,622 )   $ (220,028 )
Correction of EITF 00-27 errors
    (301 )     (1,203 )     (2,292 )     (3,629 )     (5,408 )     (7,209 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ (194,602 )   $ (210,399 )   $ (215,201 )   $ (219,795 )   $ (226,030 )   $ (227,237 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 
Stockholders’ equity (deficit):
                                               
As previously reported on Form 10-K or 10-Q
  $ (63,925 )   $ (78,820 )   $ (82,468 )   $ (85,725 )   $ (49,309 )   $ (47,292 )
Correction of EITF 00-27 errors
    6,109       5,364       4,437       3,265       6,356       4,834  
 
   
 
     
 
     
 
     
 
     
 
     
 
 
As currently reported on revised Form 10-K or 10-Q
  $ (57,816 )   $ (73,456 )   $ (78,031 )   $ (82,460 )   $ (42,953 )   $ (42,458 )
 
   
 
     
 
     
 
     
 
     
 
     
 
 

Overview and Recent Developments

     We are a broad-based communications company, servicing residential, small and medium-sized businesses and corporate accounts in the United States. We provide a range of products from local dial tone, domestic and international long-distance voice services to fully managed, integrated data and enhanced services. We are a US facilities-based carrier with points of presence in 30 major US cities. Our voice network features 11 voice switches and nationwide Feature Group D (“FGD”) access. Our data network consists of 17 Nortel Passports that have recently been upgraded to support multi-protocol label switching (“MPLS”). Finally, we have relationships with multiple tier I and tier II providers in the U.S. and abroad.

     We currently manage our Company through two business segments. Our Telecommunications segment offers a broad selection of voice and data telecommunications products and services to residential and commercial customers through a network of independent agents, primarily via MLM and commercial agent programs. Our Technologies segment offers a proven network convergence solution for voice and data in Voice over Internet Protocol (“VoIP”) communications technology and holds two foundational patents in the VoIP space (U.S. Patent Nos. 6,243,373 and 6,438,124, together the “VoIP Patents”). We are pursuing efforts to license the technology supported by our patents to carriers and equipment manufacturers and suppliers in the IP telephony market.

     In August 2004, the Company implemented a resizing of the organization targeted at reducing its operating costs. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management expects to record, in the fourth quarter, expenses of $1,000 to $1,500 related to future closure of facilities and the removal of assets from production.

     Acceris has been built through the acquisition of predecessor businesses, which have been and are continuing to be integrated, consolidated and reorganized. These predecessor businesses are organized into

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two segments: Telecommunications and Technologies. Telecommunications has been assembled through the acquisition of certain assets of WorldxChange Communications, Inc. (“WorldxChange”) in 2001 and certain assets of RSL COM USA, Inc. (“RSL”) in 2002. Added to this was the acquisition of the assets of Transpoint Communications, LLC and the membership interest of Local Telecom Holdings, Inc., (collectively, “Transpoint”), which closed in 2003.

     Our development and transition is articulated below:

     Telecommunications:

     WorldxChange was a facilities-based telecommunications carrier providing international and domestic long-distance service to retail customers. The business we acquired out of the WorldxChange bankruptcy in June 2001 consisted primarily of a dial-around product that allowed a customer to make a call from any phone by dialing a 10-10-XXX prefix. Since the acquisition, we have commenced offering a 1+ product (1+ products are those with which a customer directly dials a long-distance number from their telephone by dialing 1-area code-phone number) and have also begun to offer local communications products to our residential and small business customers. The local dial tone service is being provided under the terms of the Unbundled Network Element Platform (“UNE-P”) authorized by the Telecommunications Act of 1996 and was available in New York and New Jersey in the first quarter of 2004, and has since expanded to Pennsylvania, Massachusetts and Florida. Historically, WorldxChange marketed its services through consumer mass marketing techniques, including direct mail and direct response television and radio. In 2002, we revamped our channel strategy by de-emphasizing the direct mail channel and devoting our efforts to pursuing more profitable methods of attracting and retaining customers. We now use commercial agents as well as a network of independent commission agents recruited through an MLM program to attract and retain new customers. In 2004 we launched the Acceris Communications Inc. Platinum Agent Program which awards warrants to certain of our agents based on performance criteria as a means to attract and incentivize existing and new independent agents. In December 2002, we completed the purchase of certain assets of RSL from a bankruptcy proceeding. The purchase included the assets used by RSL to provide long-distance voice and data services, including frame relay, to their commercial customers and the assets used to provide long-distance and other voice services to small businesses and the consumer/residential market, which they referred to as their Agent business.

     In July 2003, we completed the purchase of Transpoint. The purchase of Transpoint provided us with further penetration into the commercial agent channel and a larger commercial customer base.

     Our Telecommunications segment offers a broad range of voice and data products and services to residential, small office/home office (“SOHO”) and small-medium sized enterprises (“SME”), and commercial customers through a network of MLM agents, commercial agents, affinity groups and outbound telemarketing. Our customers are serviced through direct sales and support teams who offer fully managed and fully integrated voice and data solutions.

     We have capitalized upon a unique synthesis of marketing and network capabilities. Through the strength of our agent network we are adding new customers each month, many of them with a strong international usage component. Due to our favorable cost structure and network optimization, we offer competitive rates to selected international regions. We continue to experience customer attrition particularly with our 10-10-XXX customer base which we have not marketed directly since 2002. We have also seen the average revenue per user (“ARPU”) decline. The Company’s domestic telephone network continues to operate at well below available capacity leading to cost inefficiencies. We attribute this to increased cellular penetration and deregulation in various countries which have lower rates per month in those markets. This is most evident in India in 2004. Additionally, regulatory uncertainty exists in the domestic telephone markets due to recent court decisions. Future regulatory changes may penalize or benefit the current operations of the business.

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     We differentiate ourselves to our residential customers by offering attractively priced bundles of international minutes, both on a stand alone basis and as part of a local dial tone + long-distance package to preferred destinations, and by specialized customer service, which includes in-language customer support. By using this targeted strategy, we have acquired a substantial number of ethnic users whose monthly spending on telecommunications services is generally higher than that of the average retail customer. These subscribers also tend to exhibit higher brand loyalty, resulting in lower customer turnover (“churn”) than average retail consumers for our type of products.

     Our proprietary technology enables us to offer unbundled value-added services such as voicemail, unified messaging and on-the-fly conferencing at a low cost, creating another competitive advantage when targeting retail customers. These features distinguish us from mass-market providers that typically offer higher priced, “one-size-fits-all” national and international rate plans. We are in the process of productizing and deploying this technology.

     Our direct sales force focuses on multi-location customers with limited information technology (“IT”) resources. By taking a consultative approach to network solutions and providing in-depth analysis of our customers’ business needs and operating environments, we are able to design and deliver competitively priced and customized voice and data solutions. Our commercial customers also benefit from our relationships with multiple providers, which ensures superior service with respect to network redundancy, cost and supplier risk. We are able to offer strong customer service due to easy access to information and to our engineering, technical and administrative staffs.

     Our voice network features 11 voice switches and nationwide Feature Group D (“FGD”) access, which enables low cost call origination. Our data network consists of 17 Nortel Passports that have recently been upgraded to support multi-protocol label switching (“MPLS”). Finally, we have relationships with multiple tier I and tier II providers in the U.S. and abroad.

     Technologies:

     In 1994, we began operating as an Internet service provider and quickly identified that the emerging IP environment was a promising basis for enhanced service delivery. We soon turned to designing and building an IP telecommunications platform consisting of our proprietary software, hardware and leased telecommunications lines. The goal was to create a platform with the quality and reliability necessary for voice transmission.

     In 1997, we started offering enhanced services over a mixed IP-and-circuit-switched network platform. These services offered a blend of traditional and enhanced communication services and combined the inherent cost advantages of the IP-based network with the reliability of the existing Public Switched Telephone Network (“PSTN”).

     In August 1997, we acquired MiBridge, Inc. (“MiBridge”), a communications technology company engaged in the design, development, integration and marketing of a range of software telecommunications products that support multimedia communications over the PSTN, LANs and IP networks. The acquisition of MiBridge permitted us to accelerate the development and deployment of IP technology across our network platform.

     In 1998, we first deployed our real-time IP communications network platform. With this new platform, all core operating functions such as switching, routing and media control became software-driven. This new platform represented the first nationwide, commercially viable VoIP platform of its kind. Following the launch of our software-defined VoIP platform in 1998, we continued to refine and enhance the platform to make it even more efficient and capable for our partners and customers.

     On December 6, 2002, we entered into a definitive purchase and sale agreement to sell substantially all of the assets and customer base of our wholly owned subsidiary I-Link Communications, Inc. (“ILC”) to Buyers United, Inc. (“BUI”), which closed on May 1, 2003. The sale included the physical assets required to operate our nationwide network using our patented VoIP technology (constituting the core business of the ILC business) and a fully paid non-exclusive perpetual license to our proprietary software-based

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network convergence solution for voice and data. The sale of the ILC business removed essentially all operations that did not pertain to our proprietary software-based convergence solution for voice and data. This sale marked the final stage of the transformation of our Technologies operations into a business based principally on the licensing of our proprietary software.

     Today, our Technologies segment offers a proven network convergence solution for the deployment of IP-based voice and data services over a single network. We have over nine years of experience developing VoIP technologies. Our proprietary soft-switch solution enables existing telecom service providers to reduce telecommunications costs and permits new communications service providers to enter the enhanced communications market with limited capital investment. In addition, we own four patents and utilize the technology supported by those patents in providing our proprietary software solutions. We believe that we hold foundational patents for VoIP in our VoIP Patents. To date, we have licensed portions of that technology to third parties on a non-exclusive basis. In addition, we also have several patent applications pending before the Untied States Patent and Trademark Office and other such authorities internationally. We are pursuing opportunities to leverage our patents through a focused licensing strategy that targets carriers, equipment vendors and customers who are deploying IP for phone-to-phone communication.

Business Strategy

     Our business strategy is to build a large, profitable base of residential, small and medium sized business and enterprise accounts that purchase bundled telecom services. As part of our strategy, we have consolidated our high quality communications networks and restructured our operations in order to leverage our infrastructure across branded sales channels.

     To achieve our goals, through both organic and acquisition growth we plan to:

     Penetrate our distribution channels: Our distribution channels, which we have built over the last three years, continue to grow and mature. Our recently launched Platinum Agent Program rewards agents for substantial and persistent production. Under this program, selected agents who meet specified performance objectives are eligible to receive stock purchase warrants. The equity incentives offered under this program are expected to increase both the number of commercial agents and the revenue contribution per commercial agent. The program also helps to ensure that the objectives of our agents and the Company are aligned.

     Expand our product portfolio: We have recently expanded our product set to include local dial tone in order to extend the average life and monthly average revenues of current and future customers. We are currently delivering local dial tone services to customers via the UNE-P. In addition, we intend to roll-out VoIP and related services to our residential, SME and enterprise customers beginning in the later part of 2004 and continuing into 2005. Products will include an IP origination service with enhanced features such as one number capability, find me/follow me, and on the fly conferencing, and VoIP offerings for the small office- home office, small and medium business market and enterprise segments that offer robust voice and data communications features such as call management, personal agent functionality and collaboration services. We intend to utilize our technologies, applications and engineered solutions expertise to continue to grow in the VoIP arena.

     Enter new geographic markets: In first quarter of 2004, we launched our local + long-distance bundled product set in New York and New Jersey. In the second quarter of 2004, we entered the Pennsylvania, Massachusetts and Florida markets. We currently offer stand alone long-distance services nationwide in the US.

     License our intellectual property: We have four issued patents and two pending patent applications, which we utilize to provide our proprietary solutions. We believe that we hold the foundational patents for the manner in which a significant portion of VoIP traffic is routed in the marketplace today. We have licensed portions of our technology to third parties on a non-exclusive basis. We plan to further monetize our intellectual property by offering licenses to service providers, equipment companies and end-users who are deploying VoIP networks for phone-to-phone communications.

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     Leverage our existing scalable infrastructure: We have created a network and back office infrastructure that satisfies the needs of our existing customers and that will support additional revenue growth without significant incremental capital investment. We continue to reduce our network costs and are completing the consolidation of duplicate back office functions. Our IT strategy is expected to ensure efficiency and integrity internally by eliminating redundant costs and mitigating strategic risks. We expect to make significant incremental capital investments pursuant to our expanded product portfolio outlined above, in addition to the base level of annual capital investment necessary to keep our infrastructure efficient and maintained.

Industry

     Historically, the communications services industry has transmitted voice and data over separate networks using different technologies. Traditional carriers have typically built telephone networks based on circuit switching technology, which establishes and maintains a dedicated path for each telephone call until the call is terminated.

     The communications services industry continues to evolve, both domestically and internationally, providing significant opportunities and risks to the participants in these markets. Factors that have been driving this change include:

  entry of new competitors and investment of substantial capital in existing and new services resulting in significant price competition

  technological advances resulting in a proliferation of new services and products and rapid increases in network capacity

  the Telecommunications Act of 1996 (the “1996 Act”)

  growing deregulation of communications services markets in the United States and in selected countries around the world

     VoIP is a technology that can replace services provided by the traditional telephone network. This type of data network is more efficient than a dedicated circuit network because the data network is not restricted by the one-call, one-line limitation of a traditional telephone network. This improved efficiency creates cost savings that can be either passed on to the consumer in the form of lower rates or retained by the VoIP provider.

     The VoIP industry has grown dramatically from the early days of calls made through personal computers. According to a research study from Insight Research Corporation, VoIP-based services is projected to grow significantly through 2007, representing a growth opportunity for VoIP service providers.

Competition

     Competition in the telecommunications industry is based upon pricing, customer service, billing services and perceived quality. We compete against numerous telecommunications companies that offer essentially the same services as we do. Many of our competitors, including the incumbent local exchange carriers (“ILECs”), are substantially larger and have greater financial, technical and marketing resources. Our success will depend upon our continued ability to provide high quality, high value services at prices competitive with, or lower than, those charged by our competitors.

     The ILECs and the major carriers, including SBC, Verizon, BellSouth, AT&T, Sprint Corporation and MCI/Worldcom, Inc., have targeted price plans at residential and small business customers — our primary target market — with significantly simplified rate structures and with bundles of local services with long-distance, which may lower overall local and long-distance prices. Competition is also fierce for the commercial customers that we serve. This market was typically dominated by AT&T, Sprint and MCI

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(national long-distance carriers) but now offers additional growth opportunities for the incumbent local exchange companies as they are able to service multi-location customers with offices located outside of their local calling area.

     Pricing pressure has existed for several years in the telecommunications industry and is expected to continue, and this is coupled with the introduction of new technologies, such as VoIP, which seek to provide voice communications at a cost below that of traditional circuit-switched service. In addition, wireless carriers have marketed their services as an alternative to traditional long-distance and local services, further increasing competition and consumer choice. Reductions in prices charged by competitors may have a material adverse effect on us. Cable companies have entered the telecommunications business, and this development may increase the competition faced by the Company.

     The ILECs are well-capitalized, well-known companies that have the capacity to “bundle” other services, such as local and wireless telephone services and high speed Internet access, with long- distance telephone services. The ILECs’ name recognition in their existing markets, the established relationships that they have with their existing local service customers, their ability to take advantage of those relationships, and the possibility that interpretations of the 1996 Act may be favorable to the ILECs, also make it more difficult for us to compete with them.

Government Regulation

Telecommunications industry

     The telecommunications industry is subject to government regulation at federal, state and local levels. Any change in current government regulation regarding telecommunications pricing, system access, consumer protection or other relevant legislation could have a material impact on our results of operations. Most of our current operations are subject to regulation by the Federal Communications Commission (“FCC”) under the Communications Act of 1934. In addition, certain of our operations are subject to regulation by state public utility or public service commissions. Changes in, or changes in interpretation of, legislation affecting us could damage our operations and lower the price of our common stock.

     The 1996 Act, among other things, allows the Regional Bell Operating Companies (“RBOC”) and others to enter the long-distance business. Entry of the RBOCs or other entities, such as electric utilities and cable television companies, into the long-distance business may have a negative impact on our business or our customers. We anticipate that some of these entrants will prove to be strong competitors because they are better capitalized, already have substantial customer bases, and enjoy cost advantages relating to local telecom lines and access charges. In addition, the 1996 Act provides that state proceedings may in certain instances determine access charges we are required to pay to the local exchange carriers. If these proceedings occur, rates could increase which could lead to a loss of customers and weaker operating results.

Overview of Federal Regulation

     As a carrier offering telecommunications services to the public, we are subject to the provisions of the Communications Act of 1934, as amended, and FCC regulations issued thereunder. These regulations require us, among other things, to offer our regulated services to the public on a non-discriminatory basis at just and reasonable rates. We are subject to FCC requirements that we obtain prior FCC approval for transactions that would cause a transfer of control of one or more regulated subsidiaries. Such approval requirements may delay, prevent or deter transactions that could result in a transfer of control of our company.

     International Service Regulation. We possess authority from the FCC, granted pursuant to Section 214 of the Communications Act of 1934, to provide international telecommunications service. The FCC has streamlined regulation of competitive international services and has removed certain restrictions against providing certain services. Presently, the FCC is considering a number of international service issues that may further alter the regulatory regime applicable to us. For instance, the FCC is considering revisions to the rules regarding the rates that international carriers like us pay for termination of calls to mobile phones located abroad.

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     Pursuant to FCC rules, we have cancelled our international and domestic FCC tariffs and replaced them with a general service agreement and price lists. As required by FCC rules, we have posted these materials on our Internet web site. The “detariffing” of our services has given us greater pricing flexibility for our services, but we are not entitled to the legal protection provided by the “filed rate doctrine,” which generally provides protections to carriers from legal actions by customers that challenge the terms and conditions of service.

     Interstate Service Regulation. As an inter-exchange carrier (“IXC”), our interstate telecommunications services are regulated by the FCC. While we are not required to obtain FCC approval to begin or expand our interstate operations, we are required to obtain FCC approvals for certain transactions that would affect our ownership or the services we provide. Additionally, we must file various reports and pay certain fees and assessments. We are subject to the FCC’s complaint jurisdiction and must contribute to the federal Universal Service Fund (“USF”). We must also comply with the Communications Assistance for Law Enforcement Act (“CALEA”), and certain FCC regulations which require telecommunications common carriers to modify their networks to allow law enforcement authorities to perform electronic surveillance.

Overview of State Regulation

     Through certain of our subsidiaries, we are authorized to provide intrastate interexchange telecommunications services and, in certain states, are authorized to provide competitive local exchange services by virtue of certificates granted by state public service commissions. Our regulated subsidiaries must comply with state laws applicable to all similarly certified carriers including the regulation of services, payment of regulatory fees and preparation and submission of reports. The adoption of new regulations or changes to existing regulations may adversely affect our ability to provide telecommunications services. Consumers may file complaints against us at the public service commissions. The certificates of authority we hold can be generally conditioned, modified, cancelled, terminated or revoked by state public service commissions. Further, many states require prior approval or notification for certain stock or asset transactions, or in some states, for the issuance of securities, debts, guarantees or other financial transactions. Such approvals can delay or prevent certain transactions.

Overview of Ongoing Policy Issues

     Local Service. Through the 1996 Act, Congress sought to establish a competitive and deregulated national policy framework for advanced telecommunications and information technologies. To date, local exchange competition has not progressed to a point where significant regulatory intervention is no longer required. Regulators believed that a “hands-off” policy would drive local exchange service into an adequately competitive market, but there continues to be a strong need for policy issue clarification and construction. Some policy changes have been addressed through the court system, not the regulatory system. For instance, the FCC has attempted several times to develop a list of Unbundled Network Elements (“UNEs “) which are portions of the ILEC networks and services that must be sold separately to competitors. On several occasions, the courts have rejected the FCC’s approach to defining UNEs. The FCC’s most recent attempt to develop rules, the Triennial Review Order, was vacated by the U.S. Circuit Court of Appeals in Washington D.C. on March 4, 2004. The Court’s ruling went into effect on June 16, 2004. In response, several competitive carriers filed appeals with the U.S. Supreme Court, to seek a stay and review of the U.S. Circuit Court’s ruling. Those requests for appeal have been denied.

     On August 20, 2004, the FCC issued interim UNE rules to replace those vacated by the DC Circuit Court as well as a Notice of Proposed Rulemaking (“NPRM”) seeking comments on new UNE rules. The Interim Rules provide for a twelve-month transition plan consisting of two phases. First, on an interim basis, ILECs are required to continue providing access to switching, enterprise market loops, and dedicated transport under the same rates, terms and conditions that applied under their interconnection agreements as of June 15, 2004. These rates, terms, and conditions shall remain in place until the earlier of (1) the effective date of final unbundling rules, or (2) March 14, 2005. If there are no permanent rules by then, under phase two ILECs will only be required to lease UNE-P switching at the higher of (1) the rate

31


 

charged on June 15, 2004 plus one dollar, or (2) the rate a state public utility commission sets before March 14, 2005, plus one dollar. Second, in the absence of FCC rules on enterprise loops or transport, an ILEC will only be required to lease them at the higher of (1) 115% of the rate paid on June 15, 2004, or (2) 115% of the rate set by the state public utilities commission. This transition period applies to existing customers / facilities and does not permit CLECs to add new customers at these rates.

     On August 23, 2004, a group of ILECs appealed the Interim Rules to the D.C. Circuit Court claiming that the FCC had impermissibly granted itself a stay of the effect of the D.C. Circuit Court’s earlier decision. In response, the Court issued an Order on October 6, 2004 holding its proceedings in abeyance until January 4, 2005. This court action ensures that the Interim Rules will remain in place until at least January 4, 2005.

     Universal Service Fund. In 1997, the FCC issued an order implementing Section 254 of the 1996 Act, regarding the preservation of universal telephone service. Section 254 and related regulations require all interstate and certain international telecommunications carriers to contribute toward the USF, a fund that provides subsidies for the provision of service to schools and libraries, rural health care providers, low income consumers and consumers in high cost areas.

     Quarterly, the Universal Service Administrative Company (“USAC”), which oversees the USF, reviews the need for program funding and determines the applicable USF contribution percentage that interstate telecommunications carriers must contribute. While carriers are permitted to pass through the USF charges to consumers, the FCC has strictly limited amounts passed through to consumers in excess of a carrier’s determined contribution percentage.

     As discussed below, the industry is moving from traditional circuit-switched telephone service to digitized IP-based communications. It is possible that this trend could threaten the amount of revenues USAC can collect through the USF system, and that the resulting revenue shortfall could prevent the system from meeting its funding demands. Separately from the FCC’s inquiry into the regulation of IP-based voice service, the FCC could exercise its so called “permissive authority” under the 1996 Act and assess USF contribution on VoIP providers. To date, only some VoIP providers contribute to the USF. If VoIP providers were exempted from USF contributions, telecommunications carriers would likely pay significantly higher USF contributions; conversely, if VoIP providers were required to contribute, traditional telecommunications carriers would contribute less. In addition to the FCC, Congress is considering this issue. Current Congressional debates are divided over whether IP-based telephony service providers should be required to contribute to the USF. A decision to require VoIP providers to contribute to the USF may adversely affect our provision of VoIP services.

     VoIP Notice of Proposed Rule Making. In March 2004, the FCC issued the VoIP Notice of Proposed Rulemaking to solicit comments on many aspects of the regulatory treatment of VoIP services (the “VoIP NPRM”). The FCC continues to consider the possibility of regulating access to IP-based services, but has not yet decided on the appropriate level of regulatory intervention for IP-based service applications. Should the FCC rule that our software-based solution for VoIP deployment, and other similar service applications should be regulated, our VoIP services may be adversely affected.

     Further, the VoIP NPRM will likely address the applicability of access charges to VoIP services. Access charges provide compensation to local exchange carriers for traffic that originates or terminates on their networks. Certain LECs have argued that certain types of VoIP carriers provide the same basic functionality as traditional telephone service carriers, in that they carry a customer’s call from an origination point to a termination destination. Any ruling or decision from the FCC requiring VoIP carriers to pay access charges to ILECs for local loop use may adversely affect our VoIP services.

     The VoIP NPRM is also expected to address the extent to which CALEA will be applicable to VoIP services. Recently, in a separate proceeding, the Federal Bureau of Investigation and other federal agencies have asked the FCC to clarify that VoIP is a telecommunications service, for the purpose of subjecting VoIP to CALEA’s wiretapping requirements.

     Broadband Deployment. Broadband refers to any platform capable of providing high bandwidth-intensive content and advanced telecommunications capability. The FCC’s stated goal for broadband

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services is to establish regulatory policies that promote competition, innovation and investment in broadband services and facilities. Broadband technologies encompass evolving high-speed digital technologies that offer integrated access to voice, high-speed data, video-on-demand or interactive delivery services. The FCC is seeking to 1) encourage the ubiquitous availability of broadband access to the Internet, 2) promote competition across different platforms for broadband services, 3) ensure that broadband services exist in a minimal regulatory environment that promotes investment and innovation and 4) develop an analytical framework that is consistent, to the extent possible, across multiple platforms. The FCC has opened several inquiries to determine how to promote the availability of advanced telecommunications capability with the goal of removing barriers to deployment, encouraging competition and promoting broadband infrastructure investment. For instance, the FCC is considering the appropriate regulatory requirements for ILEC provision of domestic broadband telecommunications services. The FCC’s concern is whether the application of traditional common carrier regulations to ILEC-provided broadband telecommunications services is appropriate. On October 14, 2004, the FCC adopted an Order concluding that fiber-to-the-curb (“FTTC”) loops shall be treated in the same manner as fiber-to-the-home (“FTTH”) loops. Accordingly, ILECs will not be required to offer FTTC to competitors as UNEs. The FCC defined FTTC as “a local loop consisting of fiber optic cable connecting to a copper distribution plant that is not more than 500 feet from the customer’s premises or, in the case of predominantly residential multiple dwelling units (“MDUs”), not more than 500 feet from the MDU’s.” The FCC also clarified that ILECs are not required to build TDM capabilities into new packetized transmission facilities or add them to facilities where they never existed. Under other existing regulations, ILECs are treated as dominant carriers absent a specific finding to the contrary for a particular market and, as dominant carriers, shall still be subject to numerous regulations, such as tariff filing and pricing requirements.

     On February 7, 2002, the FCC released its third biennial report on the availability of broadband, in which it concluded that broadband is being deployed in a reasonable and timely manner. The report showed that the advanced telecommunications services market continues to grow and that the availability of and subscribership to high-speed services increased significantly since the last report. Additionally, the report noted that investment in infrastructure for advanced telecommunications remains strong. The data in the report is gathered largely from standardized information from providers of advanced telecommunications capability including wireline telephone companies, cable providers, wireless providers, satellite providers, and any other facilities-based providers of 250 or more high-speed service lines (or wireless channels) in a given state.

     Internet Service Regulation. The demand for high-speed Internet access has increased significantly over the past several years as consumers increase their Internet use. The FCC is active in reviewing the need for regulatory oversight of Internet services and to date has advocated less regulation and more market-based competition for broadband providers. The FCC’s stated policy is to promote the continued development of the Internet and other interactive computer-based communications services. We cannot be certain that the FCC will continue to take a deregulatory approach to the Internet. Should the FCC increase regulatory oversight of Internet services, our costs could increase for providing those services.

     Recent legislation in the United States (including the Sarbanes-Oxley Act of 2002) is increasing the scope and cost of work provided to us by our independent auditors and legal advisors. Many guidelines have not yet been finalized and there is a risk that we will incur significant costs in the future to comply with legislative requirements or rules, pronouncements and guidelines by regulatory bodies, including the cost of restating previously reported financial results, thereby reducing profitability.

Critical Accounting Estimates

     Management’s Discussion and Analysis of Financial Condition and Results of Operations discusses our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”). The preparation of these financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. On an on-going basis, management evaluates its estimates and judgments, including those related to intangible assets, contingencies, collectibility of receivables and litigation. Management bases its estimates and judgments on historical experience and various other factors that are believed to be reasonable under

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the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

     The critical accounting estimates used in the preparation of our consolidated financial statements are discussed in our Annual Report on Form 10-K/A#1 for the year ended December 31, 2003. To aid in the understanding of our financial reporting, a summary of significant accounting policies are described in Note 3 of Condensed Consolidated Financial Statements and Notes thereto included in Item 1 of this report. These policies have the potential to have a more significant impact on our financial statements, either because of the significance of the financial statement item to which they relate, or because they require judgment and estimation due to the uncertainty involved in measuring, at a specific point in time, events which are continuous in nature.

Liquidity and Capital Resources

     The Company has incurred substantial operating losses and negative cash flows from operations since inception. At September 30, 2004 the Company had a stockholders’ deficit of $58,190 ($42,953 – December 31, 2003), negative working capital of $22,092 ($26,576 – December 31, 2003), amounts due to its controlling shareholder of $45,946 ($28,717 – December 31, 2003) and $7,265 ($12,127 – December 31, 2003) owing under its revolving credit facility (included in working capital). There are no additional borrowings available under the revolving credit facility at September 30, 2004.

     The related party debt is owed to the Company’s controlling shareholder, Counsel Corporation (collectively with all its subsidiaries “Counsel”) and is due at December 31, 2005, subject to certain contingent acceleration clauses linked to the raising of capital. The Company has a funding commitment from Counsel to fund, through long-term intercompany advances or equity contributions, all capital investment, working capital or other operational cash requirements (the “Keep Well”) through June 30, 2005. During the first nine months of 2004, Counsel advanced the Company $11,702 under the Keep Well, and converted $3,084 of accrued interest into principal. In October 2004, Counsel agreed to subordinate all of its debt in the Company in favor of both the third party revolving credit facility and the newly issued third party convertible term note (discussed below). Under the subordination agreements, Counsel further agreed to guarantee the Company’s revolving credit facility and convertible term note and to pledge all of its shares owned in the Company as security for the related debts.

     The revolving credit facility is provided by an asset based lender. The asset based lender is secured by a first lien on all of the assets of Acceris. Borrowings under the facility are based on various advance rates of the accounts receivable base subject to certain reductions and covenants. Amounts available under the asset based facility are subject to change based upon the level of receivables and other related factors, such as the aging of accounts, customer concentrations, etc. Borrowings under this facility are classified as a current liability due to the demand nature of the borrowings. The facility matures on June 30, 2005. The Company is looking to extend the term of the facility beyond its current maturity date, or to replace the facility prior to maturity.

     In August 2004, the Company implemented a resizing of the organization targeted at reducing its operating costs. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management has recorded approximately $400 in expenses related to the August 2004 restructuring, of which $326 was paid in the third quarter of 2004, recorded in selling, general and administration expense and anticipates that it will incur expenses, in the fourth quarter, of $1,000 to $1,500 related to anticipated exit of facilities and the removal of assets from production.

     In October 2004, the Company entered into a Securities Purchase Agreement (the “Agreement”) for the sale by the Company of a Convertible Term Note (the “Note”) in the principal amount of $5,000 due October 14, 2007. The Note provides that the principal amount outstanding bears interest at the prime rate as published in the Wall Street Journal plus 3% (but not less than 7% per annum) decreasing by 2% (but

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not less than 0%) for every 25% increase in the Market Price (as defined therein) above the fixed conversion price following the effective date of the registration statement covering the Common Stock issuable upon conversion of the Note. Should the Company default under the agreement and fail to remedy the default on a timely basis, interest under the note will increase by 2% per month and the note may become immediately due inclusive of a 20% premium to the then outstanding principal. Interest is payable monthly in arrears, commencing November 1, 2004. Principal is payable at the rate of approximately $147 per month commencing January 1, 2005, in cash or registered common stock. Payment amounts will be converted into stock if (i) the average closing price for five trading days immediately preceding the repayment date is at least 100% of the Fixed Conversion Price, (ii) the amount of the conversion does not exceed 25% of the aggregate dollar trading volume for the 22-day trading period immediately preceding the repayment date, (iii) a registration statement is effective covering the issued shares and (iv) no Event of Default exists and is continuing. In the event the monthly payment must be paid in cash, then the Company shall pay 102% of the amount due in cash. The Company has the right to prepay the Note, in whole or in part, at any time by giving seven business days written notice and paying 120% of the outstanding principal amount of the Note. The holder may convert the Note, in whole or in part, into shares of Common Stock at any time upon one business day’s prior written notice. The Note is convertible into shares of the Company’s common stock at a fixed conversion price of $0.88 per share of common stock (105% of the average closing price for the 30 trading days prior to the issuance of the Note) not to exceed, however, 4.99% of the outstanding shares of common stock, of the Company (including issuable shares from the exercise of the warrants, payments of interest, or any other shares owned.

     The Company does not expect to generate net cash flow from operating activities in the remainder of 2004. In the first nine months of 2004, the Company has been funded primarily by increases in related party debt and with the proceeds from the sale of its shares of Buyers United Inc. (‘BUI”). The October financing noted above is expected to fund the Company throughout the remainder of 2004. Should additional funds be required by the Company to operate the business such funds will be derived from proceeds from additional third party fund raises which may take the form of debt, equity or a hybrid instrument, or from the proceeds on the sale of assets or from advances under the Keep Well.

     Management intends to raise additional funds from third parties to support the operating needs of the business beyond 2004. Use of funds from such arrangements may include such uses as funding operations, improving working capital, repaying obligations of the business and funding future merger and acquisition activities. There can be no assurance that the Company’s capital raising efforts will be successful or can occur on favorable terms to existing security or debt holders.

     There continues to be no assurance that the Company will be able to improve its cash flow from operations, obtain additional third party financing, extend, repay or refinance its debt with Counsel, its asset based lender or the holder of the October 2004 Note on favorable terms, or obtain an extension of the existing funding commitment from Counsel or its asset based lender beyond their respective maturity dates. This circumstance raises substantial doubt about the Company’s ability to continue as a going concern. The accompanying condensed consolidated financial statements do not include any adjustments to reflect the possible future effects on the recoverability of assets and liquidation of liabilities that may result from this uncertainty.

Cash Position

     Cash and cash equivalents as of September 30, 2004 were $1,348 compared to $2,033 at December 31, 2003.

Cash flows from operating activities

     Our working capital deficit decreased to $22,092 as of September 30, 2004, from $26,576 as of December 31, 2003. The decrease in our working capital deficit is primarily related to the decrease in our revolving credit facility of $4,862 due to payments made to our asset based lender during the first nine months of the year, and the decrease in our unearned revenue of $4,708 since December 31, 2003 due principally to the recognition of revenue as cash receipts associated with our non-recurring network service offering became unencumbered. This was partially offset by a decrease in our accounts receivable of $3,658 during the first nine months of 2004.

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     Cash used by operating activities during the nine months ended September 30, 2004 was $7,222 as compared to $2,295 during the same period in 2003. The net increase in cash used in 2004 was primarily due to a $13,711 change in unearned revenue offset by a $8,902 decrease in net loss to $16,291 for the first nine months of 2004 from a net loss of $25,193 for the same period in 2003.

Cash flows from investing activities

     Net cash provided by investing activities during the nine months ended September 30, 2004 was $2,911 as compared to net cash used of $1,327 for the same period in 2003. In the first nine months of 2004, net cash provided by investing activities relates to $3,581 in proceeds received from the sale of common stock in BUI received as consideration for the sale of the ILC operations in May 2003, offset by the purchase of equipment in the amount of $670.

Cash flows from financing activities

     Financing activities provided net cash of $3,626 during the nine months ended September 30, 2004 as compared to $3,678 for the same period in 2003. The decrease from 2003 to 2004 is due primarily to repayment of $4,862 on our revolving credit facility during the first nine months of 2004, as opposed to receipt of $4,832 during the same period in 2003, repayment of a note payable of $1,104 in the second quarter of 2004 as final settlement of the acquisition of certain assets of RSL, scheduled lease and note payable payments of $2,104, offset by the receipt of $11,702 in funding from Counsel in the first three quarters of 2004, compared to receiving $650 from Counsel during the same period in 2003.

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Supplemental Statistical and Financial Data

     The following data is provided for additional information about our operations. It should be read in conjunction with the quarterly segment analysis provided herein. All amounts below are unaudited.

                                                         
    2003
  2004
(In millions of dollars, except where indicated)
  Q1
  Q2
  Q3
  Q4
  Q1
  Q2
  Q3
Gross revenues—product mix
                                                       
Domestic long distance
  $ 7.8     $ 7.8     $ 7.4     $ 7.5     $ 6.4     $ 5.6     $ 5.4  
International long distance
    12.8       14.4       15.3       15.1       13.0       11.3       10.5  
Local dial tone
                            0.1       1.0       2.7  
MRC/USF (1)
    2.3       2.4       2.8       3.0       3.0       2.7       2.3  
Dedicated voice
    0.4       0.3       0.4       0.4       0.3       0.3       0.4  
Direct sales revenues
    7.1       6.8       5.9       5.9       5.4       5.1       5.8  
Other
          0.1       0.2             0.1       0.2       0.2  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total telecommunications revenue
  $ 30.4     $ 31.8     $ 32.0     $ 31.9     $ 28.3     $ 26.2     $ 27.3  
Network service offering
          4.1       3.1       0.4       6.4       0.2       0.1  
Technology licensing and development
          1.1       1.0       0.1       0.5       0.1        
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total revenues
  $ 30.4     $ 37.0     $ 36.1     $ 32.4     $ 35.2     $ 26.5     $ 27.4  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Telecommunications revenue by customer type:
                                                       
Dial-around
  $ 14.8     $ 13.3     $ 13.7     $ 13.3     $ 10.3     $ 9.0     $ 7.2  
1 +
    8.5       11.6       12.2       12.7       12.4       11.0       11.4  
Local dial tone
                            0.1       1.0       2.7  
Direct sales
    7.1       6.8       5.9       5.9       5.4       5.0       5.8  
Other
          0.1       0.2             0.1       0.2       0.2  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total telecommunications revenues
  $ 30.4     $ 31.8     $ 32.0     $ 31.9     $ 28.3     $ 26.2     $ 27.3  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Gross revenue — product mix(%):
                                                       
Domestic long distance
    25.6 %     24.6 %     23.1 %     23.5 %     22.6 %     21.4 %     19.9 %
International long distance
    42.1 %     45.3 %     47.8 %     47.3 %     45.9 %     43.1 %     38.4 %
Local dial tone
                            0.4 %     3.8 %     9.8 %
MRC/USF (1)
    7.6 %     7.5 %     8.8 %     9.4 %     10.6 %     10.3 %     8.5 %
Dedicated voice
    1.3 %     0.9 %     1.3 %     1.3 %     1.0 %     1.1 %     1.3 %
Direct sales revenues
    23.4 %     21.4 %     18.4 %     18.5 %     19.1 %     19.5 %     21.4 %
Other
          0.3 %     0.6 %     0.0 %     0.4 %     0.8 %     0.8 %
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total telecommunications revenues
    100.0 %     100.0 %     100.0 %     100.0 %     100.0 %     100.0 %     100.0 %
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Gross revenues—product mix (minutes)
                                                       
Domestic long-distance (5)
    135,236,248       140,798,912       134,198,098       121,880,023       129,293,178       134,649,835       176,065,320  
International long-distance
    83,191,655       93,896,850       98,873,877       98,978,290       91,288,985       83,923,345       79,458,519  
Dedicated voice
    9,571,155       7,772,277       9,364,583       8,653,038       9,653,915       9,374,236       14,751,696  
                                                         
Active Retail Subscribers (in number of people):
                                                       
Dial-around (2)
                                                       
Beginning of Period
    199,375       228,330       215,187       206,937       192,678       164,331       138,857  
Adds
    112,223       85,246       100,624       63,349       46,518       40,094       37,582  
Churn
    (83,268 )     (98,389 )     (108,874 )     (77,608 )     (74,865 )     (65,568 )     (51,237 )
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
End of Period
    228,330       215,187       206,937       192,678       164,331       138,857       125,202  
                                                         
Local dial tone
                                                       
Beginning of Period
                                  2,895       14,359  
Adds
                            3,112       13,493       12,772  
Churn
                            (217 )     (2,029 )     (3,512 )
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
End of Period
                            2,895       14,359       23,619  
                                                         
1 + (3)
                                                       
Beginning of Period
    72,008       136,896       174,486       168,242       161,570       165,847       172,162  
Adds
    109,646       81,040       43,964       25,356       25,344       27,093       23,574  
Chum
    (44,758 )     (43,450 )     (50,208 )     (32,028 )     (21,067 )     (20,778 )     (31,795 )
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
End of Period
    136,896       174,486       168,242       161,570       165,847       172,162       163,941  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total subscribers (End of Period)
    365,226       389,673       375,179       354,248       333,073       325,378       312,762  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Direct Sales (6)
                                                       
Active Customer Base
    276       254       236       227       256       252       238  
Total top 10 billing
  $ 1,243     $ 1,163     $ 1,094     $ 1,050     $ 926     $ 1,034     $ 1,230  
                                                         
Avg monthly revenue per user (active subscriptions) in absolute dollars: (4)
                                                       
Dial-around
  $ 21.61     $ 20.60     $ 22.07     $ 23.01     $ 20.89     $ 21.61     $ 19.15  
Local dial tone
  $     $     $     $     $ 11.51     $ 28.53     $ 37.62  
1 +
  $ 20.70     $ 22.16     $ 24.17     $ 26.20     $ 24.92     $ 21.30     $ 23.15  

1 MRC/USF represents “Monthly Recurring Charges” and “Universal Service Fund” fees charged to the customers.

2 “Dial- around” refers to a product which allows a customer to make a call from any phone by dialing a 10-10-XXX prefix.

3 “ 1 +” refers to a product which allows a retail customer to directly make a long- distance call from their own phone by dialing “ 1” plus the destination number.

4 Average monthly revenues per user (“ARPU”) is calculated as the revenues of the quarter divided by the number of users at the end divided by 3 to get monthly amount.

5 Includes Local Product Line Bulk/Package Rate Domestic Minutes

6 Represents Number of Parent Customers with Revenues greater than $0 in each calendar month

37


 

Management Discussion of Operations

     The following table displays the Company’s unaudited consolidated quarterly results of operations for the eight quarters ended September 30, 2004.

                                                                 
    2002
  2003
  2004
    Q4
  Q1
  Q2
  Q3
  Q4
  Q1
  Q2
  Q3
    (as restated)   (as restated)   (as restated)   (as restated)   (as restated)   (as restated)                
Revenues:
                                                               
Telecommunications 1
  $ 21,622     $ 30,367     $ 31,853     $ 31,923     $ 31,994     $ 28,360     $ 26,229     $ 27,229  
Network service offering
                4,142       3,079       408       6,363       190       161  
Technologies
    47             1,050       1,049       64       450       90        
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total
    21,669       30,367       37,045       36,051       32,466       35,173       26,509       27,390  
Operating costs and expenses:
                                                               
Telecommunication network expense 2
    12,235       19,543       19,154       19,266       18,936       16,635       15,680       15,349  
Network service offering 2
    1,995       6,205       2,165       807       (70 )           (203 )      
Selling, general, administrative and other
    9,779       14,225       14,617       13,981       14,441       14,762       14,074       13,992  
Provision for doubtful accounts
    2,274       1,175       1,131       1,466       1,666       1,227       1,740       941  
Research and development
    234                                     106       119  
Depreciation and amortization
    1,245       1,826       1,758       1,993       1,548       1,704       1,653       1,520  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total operating costs and expenses
    27,762       42,974       38,825       37,513       36,521       34,328       33,050       31,921  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Operating income (loss)
    (6,093 )     (12,607 )     (1,780 )     (1,462 )     (4,055 )     845       (6,541 )     (4,531 )
Other income (expense):
                                                               
Interest expense
    (2,184 )     (2,915 )     (3,394 )     (3,398 )     (3,562 )     (3,534 )     (2,487 )     (2,562 )
Interest and other income
    224       2       1       53       1,160       1,377       812       226  
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Total other income (expense)
    (1,960 )     (2,913 )     (3,393 )     (3,345 )     (2,402 )     (2,157 )     (1,675 )     (2,336 )
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Loss from continuing operations
    (8,053 )     (15,520 )     (5,173 )     (4,807 )     (6,457 )     (1,312 )     (8,216 )     (6,867 )
Gain (loss) from discontinued operations, net of $0 tax
    (3,365 )     (277 )     371       213       222       104              
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 
Net loss
  $ (11,418 )   $ (15,797 )   $ (4,802 )   $ (4,594 )   $ (6,235 )   $ (1,208 )   $ (8,216 )   $ (6,867 )
 
   
 
     
 
     
 
     
 
     
 
     
 
     
 
     
 
 

     1 Excluding network service offering shown separately

     2 Exclusive of depreciation shown separately

38


 

Three-Month Period Ended September 30, 2004 Compared to Three-Month Period Ended September 30, 2003

     In order to more fully understand the comparison of the results of continuing operations for the three months ended September 30, 2004 as compared to the same period in 2003, it is important to note the following significant changes in our operations that occurred:

  In November 2002, we began to sell a network service offering obtained from a new supplier. The sale of that product ceased in late July 2003. Revenue from this offering is recognized using the unencumbered cash method. In the third quarter of 2004, $161 was recognized in revenue compared to $3,079 in the same quarter of 2003. Expenses associated with this offering were recorded when incurred. In the third quarter of 2004 the Company recorded a cost of $nil in telecommunications network costs compared to incurring a cost of $807 during the same period in 2003. The cessation of this product offering did not qualify as discontinued operations under generally accepted accounting principles.
 
  In January 2004, the Company commenced offering local dial tone services via the UNE-P. The Company now offers these services in five states and the Company had approximately 24,000 local customers at the end of September 2004.
 
  In August 2004, the Company implemented a resizing of the organization targeted at reducing its operating costs. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management has recorded approximately $400 in expenses related to the August 2004 restructuring, of which $326 was paid in the third quarter of 2004, recorded in selling, general and administration expense and anticipates that it will record expenses in the fourth quarter of $1,000 to $1,500 related to anticipated exit of facilities and the removal of assets from production.

Revenues

     Telecommunications services revenue decreased $4,694 to $27,229 in the third quarter of 2004 as compared to $31,923 during the same period in 2003 (excluding revenues from our network service offering of $161 and $3,079, respectively). The primary reasons for the decrease related to:

  Our 10-10-XXX customer base is 125,000 at September 30, 2004 representing a 39.5% decline from September 2003. The customer attrition is a result of our decision to not directly market 10-10-XXX services since 2002. We have also seen the dial around monthly average revenue per user (“ARPU”) decline from $22.07 to $19.15, in the same period. We attribute this to increased cellular penetration and deregulation in various countries which have lower rates per month in those markets and due to greater competition from 1+ and local bundled offerings.
 
  The 1+ customer base is 164,000, representing a 2.5% decline in subscribers from September 2003. ARPU declined 4.2% from $24.17 to $23.15 in the same period. Management attributes the decline in customer base to our decision to lead our sales offering with a local bundle versus a 1+ offering. ARPU has declined primarily due to continued price compression in the long distance business, and as a result of the continued migration of people to greater cellular usage.
 
  Our enterprise customer base was 238 (2003-236) customers at the end of September 2004. Our top ten customers account for 19.5% of all direct sales billings. Included in the third quarter of 2004 is $1,400 of direct sales revenue from one customer who has subsequently moved to another carrier.

39


 

  Our local bundled customers increased to 24,000 as at September 30, 2004, while ARPU was $37.62. The Company commenced offering a local bundle in five states (NY, NJ, FL, PA, and MA) during 2004 under the UNE-P platform. Local bundled customers are expected to have a longer life and higher ARPU than the Company’s existing 10-10-XXX and 1+ customers.
 
  See supplemental, statistical and financial data disclosed herein.

     Technology licensing and related services revenue was $nil in the third quarter of 2004 as compared to $1,049 in the third quarter of 2003. The revenue in 2003 relates to two contracts. The first contract was with Accessline and was entered into in the first quarter of 2003 for which acceptance was obtained in the second quarter. The contract involved both technology licensing and provision of services. We recognized $449 in revenue from this contract in the third quarter of 2003. The second contract was entered into with a Japanese company in the third quarter of 2003 when delivery, acceptance and payment were all completed resulting in the recognition of $600 during the third quarter of 2003.

Operating costs and expenses

     Telecommunications network expense was $15,349 in the three months ended September 30, 2004 as compared to $19,266 during the same period in 2003 (excluding costs associated with our network service offering of $nil and $807, respectively).

     Telecommunications services margins (telecommunications services revenues less telecommunications network expenses) continue to fluctuate significantly from period to period, and are expected to continue to fluctuate significantly for the foreseeable future. Predicting whether margins will increase or decline is difficult to estimate with certainty. Factors that have affected and continue to affect margins include:

  Differences in attributes associated with the various long-distance programs in place at the Company. The effectiveness of each offering can change margins significantly from period to period. Some factors that affect the effectiveness of any program include the ongoing deregulation of phone services in various countries where customer traffic terminates, actions and reactions by competitors to market pricing, the trend toward bundled service offerings and the increasing level of wireline to cellular connections. In addition, changes in customer traffic patterns also increase and decrease our margins.
 
  Our frame relay network and voice network. Each network has a significant fixed cost element and a minor variable per minute cost of traffic carried element; significant fluctuations in the number of minutes carried from month to month can significantly affect the margin percentage from period to period. Management has reduced the fixed network monthly costs by approximately $84 per month by September 2004.
 
  Changes in contribution rates to the USF and other regulatory changes associated with the fund. Such changes include increases and decreases in contribution rates, changes in the method of determining assessments, changes in the definition of assessable revenue, and the limitation that USF contributions collected from customers can no longer exceed contributions.

     Our selling, general, administrative and other (“S,G&A”) expense was $13,992 in the three months ended September 30, 2004 as compared to $13,981 during the same period of 2003. The significant changes in S,G&A expense are as follows:

    Compensation expense decreased from approximately $5,700 in the three months ended September 30, 2003 to approximately $5,500 in the three months ended September 30, 2004.
 
    Residual third party commissions decreased from approximately $3,800 in the three months ended September 30, 2003 to approximately $2,300 in the three months ended September 30, 2004. The decrease was a direct result of lower revenues in 2004.
 
    Telemarketing costs increased from approximately $100 in the three months ended September 30, 2003 to approximately $600 in the three months ended September 30, 2004. The Company incurred higher telemarketing costs relating to our entry into the local dial tone business throughout 2004.
 
    Billings and collections expenses decreased from approximately $2,400 in the three months ended September 30, 2003 to approximately $1,600 in the three months ended September 30, 2004, due to a reduction of revenue.
 
    Marketing and advertising expenses increased from approximately $200 in the three months ended September 30, 2003 to approximately $300 in the three months ended September 30, 2004.
 
    Accounting and tax expenses increased from approximately $300 in the three months ended September 30, 2003 to approximately $600 in the three months ended September 30, 2004, primarily related to costs related to completing a restatement of accounts.
 
    Legal and regulatory expenses increased from approximately $200 in the three months ended September 30, 2003 to approximately $1,100 in the three months ended September 30, 2004. In 2004, management have incurred additional legal costs relating to the legal proceedings relating to various litigation matters including the direct and derivative actions, and its patent enforcement strategy.
 
    Facilities expenses remained consistent at $1,300 in the three months ended September 30, 2003 and September 30, 2004, respectively.
 
    Restructuring costs related to the August 2004 restructuring, of approximately $400, of which $326 was paid in the three months ended September 30, 2004, compared to none in 2003. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management expects, in the fourth quarter, expenses of $1,000 to $1,500 related to the anticipated exit of facilities and the removal of assets from production.
 
    Included in three months ended September 30, 2003 are Integration expenses of approximately $200 compared to none in 2004 relating to the 2002 acquisition of the certain assets of the estate of RSL.

40


 

     The provision for doubtful accounts was $941 in the three months ended September 30, 2004 as compared to $1,466 for the same period of 2003. The provision for doubtful accounts as a percent of revenue, excluding revenue from our network service offering, was approximately 3.5% for the three months ended September 30, 2004, versus approximately 4.6% for the three months ended September 30, 2003. Management has been taking steps to bring the bad debt provision more into line with the Company’s historical averages by tightening the credit granting process.

     The Company’s research and development program incurred costs of $119 in the third quarter of 2004. This program is expected to allow the Company to provide enhanced telecommunication services to its customer base in the near term. The Company did not carry out any research and development work in 2003.

     Depreciation and amortization was $1,520 in the three months ended September 30, 2004 compared to $1,993 during the same period of 2003.

Other income (expense)

     Interest expense totaled $2,562 in the third quarter of 2004, of which $1,855 is pursuant to related party debt, compared to the third quarter of 2003, when $3,066 of the interest expense of $3,398 was pursuant to related party debt. Included in the interest expense for the third quarter of 2004 is BCF of $688, compared to $1,393 for the same period in 2003. Third party interest is lower in the third quarter of 2004 compared to the same period in 2003, due to lower average outstanding balance on the asset based facility partially offset by an increase in interest expense on regulatory amounts owing.

     Interest and other income was $226 for the third quarter of 2004 compared to $53 during the third quarter of 2003. During the third quarter of 2004, $204 of other income relates to the estate of WorldxChange’s agreement to offset an unrecorded receivable of the Company against a legal obligation to the estate relating to the 2001 acquisition of the WorldxChange business from bankruptcy,

Discontinued Operations

     In the third quarter of 2004, there was no gain or loss from discontinued operations recorded, compared to the $213 gain reported in the third quarter of 2003 related to the sale of the ILC business.

Segment Profitability

     For the quarter ended September 30, 2004, our Telecommunications segment realized an operating segment loss of $3,745, while our Technologies segment recorded an operating segment loss of $336. We anticipate that through revenue growth and continued control of expenses, both segments will report operating income in future quarters. The measures of operating segment loss discussed above exclude $2,786 of net expenses that are not allocated to a specific segment. These consist primarily of selling, general and administrative costs, as well as $2,509 of interest expense, net of an $204 gain on discharege of obligation.

     Nine-Month Period Ended September 30, 2004 Compared to Nine-Month Period Ended September 30, 2003

     In order to more fully understand the comparison of the results of continuing operations for the nine months ended September 30, 2004 as compared to the same period in 2003, it is important to note the following significant changes in our operations that occurred:

  In July 2003, we completed the acquisition of Transpoint. The operations of Transpoint have been included in the statement of operations for the nine months ended September 30, 2004. However, there were no such operations in the same period of 2003.

41


 

  In November 2002, we began to sell a network service offering obtained from a new supplier. The sale of that product ceased in late July 2003. Revenue from this offering is recognized using the unencumbered cash method. In the first nine months of 2004, $6,714 was recognized in revenue compared to $7,221 in the same period of 2003. Expenses associated with this offering were recorded when incurred. In the first nine month of 2004 the Company recorded a recovery of $203 in telecommunications network costs compared to incurring a cost of $9,177 during the same period in 2003. The cessation of this product offering does not qualify as discontinued operations under generally accepted accounting principles.
 
  In January 2004, the Company commenced offering local dial tone services via the UNE-P. By September 30, 2004 services were being offered in five states and the Company had approximately local 24,000 local customers.
 
  In August 2004, the Company implemented a resizing of the organization targeted at reducing its operating costs. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management has recorded approximately $400 in expenses related to the August 2004 restructuring, of which $326 was paid in the third quarter of 2004, recorded in selling, general and administration expense and anticipates that it will record expenses, in the fourth quarter, of $1,000 to $1,500 related to anticipated exit of facilities and the removal of assets from production.

Revenues

     Telecommunications services revenue decreased $12,325 to $81,818 in the nine month period ended September 30, 2004 as compared to $94,143 in the same period during 2003 (excluding revenues from our network service offering). The primary reasons for the decrease related to:

  Our 10-10-XXX customer base is 125,000 at September 30, 2004 representing a 39.5% decline from September 2003. The customer attrition is a result of our decision to not directly market 10-10-XXX services since 2002. We have also seen the dial around monthly ARPU decline from $22.07 to $19.15, in the same period. We attribute this to increased cellular penetration and deregulation in various countries which have lower rates per month in those markets and due to greater competition from 1+ and local bundled offerings.
 
  The 1+ customer base is 164,000, representing a 2.5% decline in subscribers from September 2003. ARPU declined 4.2% from $24.17 to $23.15 in the same period. Management attributes the decline in customer base to our decision to lead our sales offering with a local bundle versus a 1+ offering. ARPU has declined primarily due to continued price compression in the long distance business, and as a result of the continued migration of people to greater cellular usage.
 
  Our enterprise customer base was 238 customers at the end of September 2004. Our top ten customers account for 19.5% of all direct sales billings. Included in the nine months ended September 30, 2004 is $2,800 of direct sales revenue from one customer who has subsequently moved to another carrier.
 
    Our local bundled customers increased to 24,000 as at September 30, 2004, while ARPU was $37.62. The Company commenced offering a local bundle in five states (NY, NJ, FL, PA, and MA) during 2004 under the UNE-P platform. Local bundled customers are expected to have a longer life and higher ARPU than the Company’s existing 10-10-XXX and 1+ customers.
 
  See supplemental, statistical and financial data disclosed herein.

42


 

     Technology licensing and related services revenue was $540 in the first nine months of 2004 as compared to $2,099 in the same period of 2003. In the first nine months of 2003, the Company recorded revenue from two contracts: the AccessLine contract and a contract with a Japanese company. The revenue in 2004 relates to a contract that was entered into with a Japanese company in the third quarter of 2003. Under the terms of the contract, we earned $540 based on the receipt of funds related to the delivery of product in 2003. The Company has no continuing obligation related to this contract. Technology licensing revenues are project-based and, as such, these revenues will vary from period to period based on timing and size of technology licensing projects and payments.

Operating costs and expenses

     Telecommunications network expense was $47,664 in the nine months ended September 30, 2004 as compared to $57,964 during the same period in 2003 (excluding costs associated with our network service offering of ($203) and $9,177, respectively).

     Telecommunications services margins (telecommunications services revenues less telecommunications network expenses) continue to fluctuate significantly from period to period, and are expected to continue to fluctuate significantly for the foreseeable future. Predicting whether margins will increase or decline is difficult to estimate with certainty. Factors that have affected and continue to affect margins include:

  Differences in attributes associated with the various long-distance programs in place at the Company. The effectiveness of each offering can change margins significantly from period to period. Some factors that affect the effectiveness of any program include the ongoing deregulation of phone services in various countries where customer traffic terminates, actions and reactions by competitors to market pricing, the trend toward bundled service offerings and the increasing level of wireline to cellular connections. In addition, changes in customer traffic patterns also increase and decrease our margins.
 
  Our frame relay network and voice network. Each network has a significant fixed cost element and a minor variable per minute cost of traffic carried element; significant fluctuations in the number of minutes carried from month to month can significantly affect the margin percentage from period to period. Management has reduced the fixed network monthly costs by approximately $84 per month by September 2004.
 
  Changes in contribution rates to the USF and other regulatory changes associated with the fund. Such changes include increases and decreases in contribution rates, changes in the method of determining assessments, changes in the definition of assessable revenue, and the limitation that USF contributions collected from customers can no longer exceed contributions.

     Our selling, general, administrative and other expense was $42,828 in the nine months ended September 30, 2004 as compared to $42,822 during the same period of 2003. The significant changes in S,G&A expense are as follows:

    Compensation expense decreased from approximately $20,800 in the nine months ended September 30, 2003 to approximately $19,100 in the nine months ended September 30, 2004.
 
    Residual third party commissions decreased from approximately $8,700 in the nine months ended September 30, 2003 to approximately $6,700 in the nine months ended September 30, 2004. The decrease was a direct result of lower revenues in 2004.
 
    Telemarketing costs increased from approximately $500 in the nine months ended September 30, 2003 to approximately $1,600 in the nine months ended September 30, 2004. The Company incurred higher telemarketing costs relating to our entry into the local dial tone business throughout 2004.
 
    Billings and collections expenses decreased from approximately $5,600 in the nine months ended September 30, 2003 to approximately $5,000 in the nine months ended September 30, 2004, relating to reduction in revenue in the respective periods.
 
    Marketing and advertising expenses increased from approximately $600 in the nine months ended September 30, 2003 to approximately $900 in the nine months ended September 30, 2004.
 
    Accounting and tax expenses increased from approximately $1,000 in the nine months ended September 30, 2003 to approximately $1,500 in the nine months ended September 30, 2004.
 
    Legal and regulatory expenses increased from approximately $600 in the nine months ended September 30, 2003 to approximately $2,700 in the nine months ended September 30, 2004. In 2004, management have incurred additional legal costs relating to the legal proceedings relating to various litigation matters including the direct and derivative actions, and its patent enforcement strategy.
 
    Facilities expenses increased from approximately $3,500 in the nine months ended September 30, 2003 to approximately $3,900 in the nine months ended September 30, 2004. The increase in facilities expense is due to the opening of the New Jersey office in early 2004.
 
    Restructuring costs related to the August 2004 restructuring of approximately $400, of which $326 was paid in the nine months ended September 30, 2004, compared to none in 2003. The cost cutting reflects the continued efficiencies created by the ongoing integration of the Company’s operations, related to its four acquisitions over the last three years. As a result of the resizing, the Company’s work force was reduced by approximately 20 percent. The reduction affected staff in the San Diego, Pittsburgh and Somerset facilities. Management expects, in the fourth quarter, expenses of $1,000 to $1,500 related to the anticipated exit of facilities and the removal of assets from production.
 
    Included in nine months ended September 30, 2003 are integration expenses of approximately $700 compared to none in 2004, relating to the 2002 acquisition of the certain assets of the estate of RSL.

     The provision for doubtful accounts was $3,908 in the nine months ended September 30, 2004 as compared to $3,772 for the same period of 2003. The provision for doubtful accounts as a percent of

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revenue, excluding revenue from our network service offering, was approximately 4.8% for the nine months ended September 30, 2004, versus approximately 4.0% for the nine months ended September 30, 2003. Management is taking steps to bring the bad debt provision more into line with the Company’s historical averages by tightening the credit granting process.

     The Company commenced a research and development program incurring costs of $225 in the first nine months of 2004. This program is expected to allow the Company to provide enhanced telecommunication services to its customer base in the near term. The Company did not carry out any research and development work in 2003.

     Depreciation and amortization was $4,877 in the nine months ended September 30, 2004 compared to $5,577 during the same period of 2003.

Other income (expense)

     Interest expense totaled $8,583 in the nine months ended September 30, 2004, of which $6,384 is pursuant to related party debt, compared to the same period in 2003, when $8,632 of the interest expense of $9,707 was pursuant to related party debt. Included in the interest expense for the nine months ended September 30, 2004 is BCF of $3,240, compared to $2,589 for the same period in 2003. Third party interest is lower in the first nine months of 2004 compared to the same period in 2003, due to lower average outstanding balance on the asset based facility partially offset by an increase in interest expense on regulatory amounts owing.

     Interest and other income increased $2,359 to $2,415 for the nine months ended September 30, 2004 from $56 during the same period of 2003. The increase is primarily due to a gain of $767 related to the discharge of certain obligations associated with our former participation with a consortium of owners in an indefeasible right of usage, a gain of $1,376 from our sale of shares of BUI common stock in the first six months of 2004 and $204 gain in third quarter 2004 on the estate ofWorldxChange’s agreement to offset an unrecorded receivable of the Company against a legal obligation to the estate relating to the 2001 acquisition of the WorldxChange business from bankruptcy.

Discontinued Operations

     In the first nine months of 2004, we recorded a gain from discontinued operations of $104 related to the sale of our ILC operations to BUI entered into in December 2002. The sale closed on May 1, 2003. Contingent shares (10,714) of BUI stock were earned during the three months ended March 31, 2004, with a value of $104. In the first nine months of 2003, we recorded a gain from discontinued operations of $307 related to the sale of the ILC business.

Segment Profitability

     For the nine months ended September 30, 2004, our Telecommunications segment realized an operating segment loss of $8,536, while our Technologies segment recorded an operating segment loss of $744. We anticipate that through revenue growth and continued control of expenses, both segments will report operating income in future quarters. The measures of operating segment income and loss discussed above exclude $7,115 of net income and expenses that are not allocated to a specific segment. These consist primarily of selling, general and administrative costs, as well as $8,282 of interest expense, net of a $1,376 gain on the sale of our holdings in BUI common stock and a gain of $971 recognized on the discharge of an obligation.

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Item 3  Quantitative and Qualitative Disclosures about Market Risk.

     Our exposure to market risk is limited to interest rate sensitivity, which is affected by changes in the general level of United States interest rates. Our cash equivalents are invested with high quality issuers and we limit the amount of credit exposure to any one issuer. Due to the short-term nature of the cash equivalents, we believe that we are not subject to any material interest rate risk as it relates to interest income. As to interest expense, we have one debt instrument that has variable interest rates based on the prime rate of interest. Assuming the debt amount on our asset backed facility at September 30, 2004 were constant during the next twelve-month period, the impact of a one percent increase in the prime interest rate would be an increase in interest expense of approximately $73 for the next twelve-month period. However, because the debt instrument is subject to an interest rate floor of 6.0%, a one percent decrease in the prime interest rate would have no impact on interest expense during the next twelve-month period. We do not believe that we are subject to material market risk on our fixed rate debt with Counsel in the near term.

     We did not have any foreign currency hedges or other derivative financial instruments as of September 30, 2004. We do not enter into financial instruments for trading or speculative purposes and do not currently utilize derivative financial instruments. Our operations are conducted primarily in the United States and as such are not subject to material foreign currency exchange rate risk.

Item 4  Controls and Procedures.

     As of the end of the period covered by this quarterly report, the Company carried out, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer (the “Certifying Officers”), an evaluation of the effectiveness of its “disclosure controls and procedures” (as the term is defined under Rules 13a-15(e) and 15d-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)). Based on this evaluation, the Certifying Officers have concluded that the Company’s disclosure controls and procedures are effective to ensure that material information is recorded, processed, summarized and reported by management of the Company on a timely basis in order to comply with the Company’s disclosure obligations under the Exchange Act, and the rules and regulations promulgated thereunder.

     In their evaluation of the Company’s disclosure controls and procedures in connection with the previous Quarterly Report on Form 10-Q for the quarter ended June 30, 2004, the Certifying Officers concluded that the disclosure controls and procedures were not effective. The Certifying Officers reached this conclusion having reviewed the requirements of Emerging Issues Task Force Issue No. 00-27 (“EITF 00-27”) and having determined that the accounting for Beneficial Conversion Features (“BCF”) on convertible debt and preferred stock instruments of the Company had not been properly applied in current and prior years to its convertible debentures issued in March 2001 (the “Erroneous Treatment”). The Certifying Officers further concluded that the matter constituted a material weakness in all affected prior periods.

     After discussions among the Company’s management, BDO Seidman LLP, the Company’s auditors, and the Company’s prior auditors, PricewaterhouseCoopers, LLP (“PwC”), the Company’s management concluded that a correction of the prior accounting on this matter was required. The Company’s management brought the matter for consideration before the Audit Committee and the full Board of Directors of the Company. In turn, the Audit Committee concluded that the previously issued financial statements should not be relied upon and approved and authorized the Company’s management to amend certain previously filed public reports. Additionally, management and the Audit Committee considered what changes, if any, were necessary to the Company’s disclosure controls and procedures to ensure that the Erroneous Treatment would not recur and to provide that material information is recorded, processed, summarized and reported by management of the Company on a timely basis in order to comply with the Company’s disclosure obligations under the Exchange Act, and the rules and regulations promulgated thereunder. In its review, the Audit Committee noted that the Erroneous Treatment (i) related principally to periods that preceded changes the Company has already made to consolidate and upgrade its accounting staff and function, and (ii) that the errors did not result from the failure of the Company’s disclosure controls and procedures to make known to the appropriate officials and auditors the facts concerning the Company’s convertible debentures or the occurrence of the anti-dilution events. As a result, management

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and the Audit Committee determined that education and professional development of accounting staff on the application of EITF 00-27 would be sufficient to prevent a recurrence of the matter in the future and that no additional changes to the Company’s disclosure controls and procedures were needed to the address the Erroneous Treatment. The Erroneous Treatment was confirmed on September 20, 2004; the Company addressed the matter by refiling all affected public reports in October 2004, thereby concluding the matter.

     Further, there were no changes in the Company’s internal control over financial reporting during the third fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

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PART II  OTHER INFORMATION

Item 1  Legal Proceedings

     On April 16, 2004, certain shareholders of the Company (the “Plaintiffs”) filed a putative derivative complaint in the Superior Court of the State of California in and for the County of San Diego, (the “Complaint”) against the Company, WorldxChange Corporation (sic), Counsel Communications LLC, and Counsel Corporation as well as certain present and former officers and directors of the Company, some of whom also are or were directors and/or officers of the other corporate defendants (collectively, the “Defendants”). The Complaint alleges, inter alia, that the Defendants, in their respective roles as controlling shareholder and directors and officers of the Company committed breaches of the fiduciary duties of care, loyalty and good faith and were unjustly enriched, and that the individual Defendants committed waste of corporate assets, abuse of control and gross mismanagement. The Plaintiffs seek compensatory damages, restitution, disgorgement of allegedly unlawful profits, benefits and other compensation, attorneys’ fees and expenses in connection with the Complaint. The Company believes that these claims in their entirety are without merit and intends to vigorously defend this action. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     Acceris and several of Acceris’ current and former executives and board members were named in a securities action filed in the Superior Court of the State of California in and for the County of San Diego on April 16, 2004, in which the plaintiffs made claims nearly identical to those set forth in the derivative suit above. The Company believes that these claims in their entirety are without merit and intends to vigorously defend this action. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     In connection with the Company’s efforts to enforce its patent rights, Acceris Communications Technologies Inc. filed a patent infringement lawsuit against ITXC Corp. (“ITXC”) in the United States District Court of the District of New Jersey on April 14, 2004. The complaint alleges that ITXC’s VoIP services and systems infringe the Company’s U.S. Patent No. 6,243,373, entitled “Method and Apparatus for Implementing a Computer Network/Internet Telephone System.” On May 7, 2004, ITXC filed a lawsuit against Acceris Communications Technologies Inc., and the Company, in the United States District Court for the District of New Jersey for infringement of five ITXC patents relating to VoIP technology, directed generally to the transmission of telephone calls over the Internet and the completion of telephone calls by switching them off the Internet and onto a public switched telephone network. The Company believes that the allegations contained in ITXC’s complaint are, in their entirety, without merit and the Company intends to provide a vigorous defense to ITXC’s claims. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on its business, results of operations, financial position or liquidity.

     At our Adjourned Meeting of Stockholders held on December 30, 2003, our stockholders approved an amendment to our Articles of Incorporation, deleting Article VI thereof (regarding liquidations, reorganizations, mergers and the like). Stockholders who were entitled to vote at the meeting and advised us in writing, prior to the vote on the amendment, that they dissented and intended to demand payment for their shares if the amendment was effectuated, were entitled to exercise their appraisal rights and obtain payment in cash for their shares under Sections 607.1301 – 607.1333 of the Florida Business Corporation Act, provided their shares were not voted in favor of the amendment. In January 2004, appraisal notices in compliance with Florida corporate statutes were sent to all stockholders who had advised us of their intention to exercise their appraisal rights. The appraisal notices included our estimate of fair value of our shares, being $4.00 per share on a post-split basis. These stockholders had until February 29, 2004 to return their completed appraisal notices along with certificates for the shares for which they were exercising their appraisal rights. Approximately 33 stockholders holding approximately 74,000 shares of our stock returned completed appraisal notices by February 29, 2004. A stockholder of 20 shares notified us of his acceptance of our offer of $4.00 per share, while the stockholders of the remaining shares did not accept our offer.

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Subject to the qualification that we may not make any payment to a stockholder seeking appraisal rights if, at the time of payment, our total assets are less than our total liabilities, stockholders who accepted our offer to purchase their shares at the estimated fair value will be paid for their shares within 90 days of our receipt of a duly executed appraisal notice. If we should be required to make any payments to dissenting stockholders, Counsel will fund any such amounts through the purchase of shares of our common stock. Stockholders who did not accept our offer were required to indicate their own estimate of fair value, and if we do not agree with such estimates, the parties are required to go to court for an appraisal proceeding on an individual basis, in order to establish a fair value. Because Acceris did not agree with the estimates submitted by most of the dissenting shareholders, Acceris has sought a judicial determination of the fair value of the common stock held by the dissenting stockholders. On June 24, 2004, Acceris filed suit against the dissenting shareholders seeking a declaratory judgment, appraisal and other relief in the Circuit Court for the 17th Judicial District in Broward County, Florida. There is no assurance that this matter will be resolved in the Company’s favor and an unfavorable outcome of this matter could have a material adverse impact on our business, results of operations, financial position or liquidity.

     The Company is involved in various other legal matters arising out of its operations in the normal course of business, none of which are expected, individually or in the aggregate, to have a material adverse effect on the Company.

Item 2  Changes in Securities, Use of Proceeds and Issuer Purchases of Equity Securities.

     During the three and nine months ending September 30, 2004, approximately 101,500 and 243,600 options, respectively, were issued to employees under the 2003 Employee Stock Option and Appreciation Rights Plan. These options are issued with exercise prices that equal or exceed fair value on the date of the grant and vest over a 4-year period subject to the grantee’s continued employment with the Company. The Company relied on an exemption from registration under Section 4(2) of the Securities Act of 1933.

     Additionally, during the three months and nine months ended September 30, 2004, approximately nil and 600,000 warrants, respectively, have been issued to a limited number of participants under the Acceris Communications Inc. Platinum Agent Program at an exercise price of $3.50 per share. See Note 13 to the condensed consolidated financial statements included in Part I herein for a description of the vesting provisions of these warrants. The Company relied on an exemption from registration under Regulation D under the Securities Act of 1933.

The Company acquired 25,000 shares of Acceris common stock in the three and nine months ended September 30, 2004, pursuant to a particular non-cash settlement of a claim. The Company has retired these common shares.

Item 3  Defaults Upon Senior Securities.

     None.

Item 4  Submission of Matters to a Vote of Security Holders.

     None.

Item 5  Other Information.

     None.

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Item 6  Exhibits and Report on Form 8-K.

(a) Exhibits

31.1   Certification pursuant to Rule 13a-14(a) and 15d-14(a) required under Section 302 of the Sarbanes-Oxley Act of 2002 (3)
 
31.2   Certification pursuant to Rule 13a-14(a) and 15d-14(a) required under Section 302 of the Sarbanes-Oxley Act of 2002 (3)
 
32.1   Certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (3)
 
32.2   Certification pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (3)

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunder duly authorized.

         
    Acceris Communications Inc.
(Registrant)
 
       
  By:   /s/ Allan C. Silber
     
 
Date: November 11, 2004
      Allan C. Silber
Chief Executive Officer and Director
 
       
  By:   /s/ Gary M. Clifford
     
 
      Gary M. Clifford
Chief Financial Officer and Vice
President of Finance

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