1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 2000.
REGISTRATION NO. 333 -
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
LEXENT INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7385 13-3990223
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
THREE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 981-0700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
KEVIN M. O'KANE
VICE CHAIRMAN AND CHIEF OPERATING OFFICER
LEXENT INC.
THREE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 981-0700
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
JOSHUA A. LEUCHTENBURG, ESQ.
VINCENT PAGANO, JR., ESQ. REBOUL, MACMURRAY, HEWITT,
SIMPSON THACHER & BARTLETT MAYNARD & KRISTOL
425 LEXINGTON AVENUE 45 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10111
(212) 455-2000 (212) 841-5700
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE REGISTERED REGISTERED(1) SHARE PRICE(2)
- --------------------------------------------------------------------------------------------------------------
Common stock, $.001 par value.......... shares $ $86,250,000
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
- --------------------------------------- ----------------------
- --------------------------------------- ----------------------
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
- --------------------------------------- ----------------------
Common stock, $.001 par value.......... $22,770
- --------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
(1) Includes shares of common stock that may be sold pursuant to the
Underwriters' over-allotment option. See "Underwriting."
(2) Estimated solely for purposes of calculating the amount of the registration
fee paid pursuant to Rule 457(a) under the Securities Act of 1933, as
amended.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER
OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED FEBRUARY 18, 2000
Shares
LEXENT INC.
[LOGO]
Common Stock
-----------------
Prior to this offering, there has been no public market for our common
stock. The initial public offering price of the common stock is expected to be
between $ and $ per share. We have applied to list our common stock
on the Nasdaq National Market under the symbol "LXNT."
The underwriters have an option to purchase a maximum of
additional shares to cover over-allotments of shares.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE
7.
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS LEXENT INC.
------------------- ------------------- -------------------
Per Share............................................ $ $ $
Total................................................ $ $ $
Delivery of the shares of common stock will be made on or about
, 2000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
CREDIT SUISSE FIRST BOSTON
CHASE H&Q
RAYMOND JAMES & ASSOCIATES, INC.
The date of this prospectus is , 2000.
3
(THIS PAGE INTENTIONALLY LEFT BLANK)
4
-----------------
TABLE OF CONTENTS
PAGE
----
PROSPECTUS SUMMARY.................... 3
RISK FACTORS.......................... 7
SPECIAL NOTE REGARDING FORWARD-
LOOKING STATEMENTS.................. 15
USE OF PROCEEDS....................... 16
DIVIDEND POLICY....................... 16
CAPITALIZATION........................ 17
DILUTION.............................. 18
SELECTED CONSOLIDATED FINANCIAL
DATA................................ 19
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS....................... 21
BUSINESS.............................. 28
MANAGEMENT............................ 35
PAGE
----
CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS........................ 43
PRINCIPAL STOCKHOLDERS................ 45
DESCRIPTION OF CAPITAL STOCK.......... 47
SHARES ELIGIBLE FOR FUTURE SALE....... 50
UNDERWRITING.......................... 52
NOTICE TO CANADIAN RESIDENTS.......... 54
LEGAL MATTERS......................... 55
EXPERTS............................... 55
WHERE YOU CAN FIND ADDITIONAL
INFORMATION ABOUT US................ 55
INDEX TO CONSOLIDATED FINANCIAL
STATEMENTS.......................... F-1
-----------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO
WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY BE USED ONLY WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT.
"Lexent Inc.," "Lexent" and the Lexent logo are our trademarks. All other
trademarks or service marks appearing in this prospectus are trademarks or
service marks of the respective companies that own them.
DEALER PROSPECTUS DELIVERY OBLIGATION
UNTIL , 2000, 25 DAYS AFTER THE COMMENCEMENT OF THIS OFFERING,
ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS
IN ADDITION TO THE DEALER'S OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS AN
UNDERWRITER AND WITH RESPECT TO UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
5
(THIS PAGE INTENTIONALLY LEFT BLANK)
6
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus.
This summary does not contain all of the information you should consider before
buying shares in this offering. You should read the entire prospectus carefully.
Unless otherwise indicated, all references to "Lexent," "we," "us" and "our"
refer to Lexent Inc., its predecessor and its subsidiaries.
LEXENT INC.
Lexent Inc. is a leading provider of outsourced local telecommunications
network services for established and emerging communications companies,
including competitive local exchange carriers, Internet service providers and
carriers' carriers. Our principal focus is to provide the expertise and
resources our customers need to build and connect their networks to other local
and long distance carriers and to individual end users. Our complete, local
solution allows our customers to outsource all or a portion of the design,
deployment, upgrading and maintenance of their networks. To ensure the
reliability of these networks, we provide services 24 hours a day, seven days a
week. Our largest customers include AT&T, Level 3 Communications, MCI Worldcom,
Metromedia Fiber Network, Network Access Solutions, Network Plus, Nextlink
Communications, Teligent and Winstar Communications. Our revenues have grown to
$150.9 million in 1999 from $53.7 million in 1997, representing a compound
annual growth rate of 68%.
In our customers' competitive environment where speed to market is key, our
outsourced solution provides the mission-critical, often scarce resources that
our customers need. We have the technical expertise, local knowledge and highly
skilled workforce that enable us to design, deploy and upgrade local wireless
and wireline networks more quickly and efficiently than many of our customers
could themselves. We currently employ over 755 network engineers and
technicians. Our senior management team averages 15 years of telecommunications
industry experience. We are technology and vendor independent, enabling us to
install, upgrade and maintain equipment from any major telecommunications
equipment manufacturer. Over the past three years, we have successfully expanded
our operations from the New York City metropolitan area to other cities,
including Baltimore, Boston, Newark, Philadelphia, Stamford and Washington, D.C.
We plan to continue expanding with our customers into other metropolitan areas.
We believe that we have a substantial business opportunity for the
following reasons:
- The telecommunications industry is growing rapidly and our customers are
making large capital investments to build and expand their networks.
- The increasing demand for broadband Internet access, wireless
communications and enhanced data and voice services is fueling this
growth.
- Broadband capacity is inadequate in the last mile.
- Our customers increasingly outsource the services we provide so that they
can focus on their core businesses.
We believe our extensive experience and knowledge of local telecommunications
networks will encourage our existing and new customers to use our services as
they expand their businesses in existing and new markets. In 1999, we provided
services to 74 telecommunications companies, more than double the 36 we serviced
in 1998.
We deliver integrated services to our customers, enabling them to use
Lexent instead of multiple vendors. Our services are designed to improve our
customers' competitive position through efficient design, deployment, upgrading
and maintenance of their networks. We develop long term relationships with our
customers by providing responsive, reliable and high quality service, which we
believe results in repeat
3
7
revenues from our customers. In 1999, over 80% of our revenues were generated
from customers who used our services in 1998. Our outsourced solution includes
the following services:
Design, Engineering and Program Management Services. We design and
engineer entire local telecommunications networks. This includes fiber and
fixed wireless backbones and interconnections to other carriers that enable
our customers to connect end users to their networks. We coordinate the
entire process, from planning, designing, permitting, accessing buildings
and rights-of-way, to supervising the installation of a customer's network.
Network Deployment Services. We deploy local telecommunications
networks and Internet infrastructure, including fiber optic backbones,
local SONET fiber rings, fixed wireless and digital subscriber line
systems. We deploy and test equipment inside central office facilities and
end user locations. For our fiber optic network customers, we install and
test fiber optic cable over the last mile, from fiber backbone to end
users. For our fixed wireless customers, we install line-of-sight antennas,
radios and equipment connecting the radios to wireline networks. For
digital subscriber line customers, we install DSL equipment inside
incumbent local exchange carrier co-location facilities.
Network Upgrade and Maintenance Services. We provide ongoing services
to our customers, which include daily maintenance, upgrading and adding
equipment, installing new access lines, testing fiber splices and
telecommunications equipment and laying additional fiber to increase
network capacity. Our maintenance and emergency restoration services are
provided 24 hours a day, seven days a week.
Our objective is to be the leading provider of outsourced local
telecommunications network services in major metropolitan markets for
competitive local exchange carriers, or CLECs, Internet service providers and
carriers' carriers. The key elements of our strategy are to:
- Exploit the rapidly growing demand for broadband Internet access and
wireless communications;
- Grow our base of leading customers by focusing on customer satisfaction
and increasing their speed to market;
- Pursue client-driven geographic expansion in major metropolitan areas;
- Create new revenue streams by expanding our services and pursuing
cross-selling opportunities; and
- Attract, motivate and retain a highly specialized workforce capable of
remaining at the forefront of emerging technologies.
Our principal executive offices are located at Three New York Plaza, New
York, New York 10004. Our telephone number is (212) 981-0700.
4
8
THE OFFERING
Common stock offered.................. shares
Common stock to be outstanding after
this offering......................... shares
Use of proceeds....................... The net proceeds from this offering
will be used to reduce outstanding
borrowings under our revolving credit
facility, to pay dividends accrued
after December 31, 1998 on the
redeemable convertible preferred
stock to be converted into common
stock upon the closing of this
offering, and for working capital,
general corporate purposes and
potential strategic acquisitions. See
"Use of Proceeds."
Proposed Nasdaq National Market
symbol................................ LXNT
The number of shares of common stock to be outstanding after this offering
is based on the number of shares of common stock outstanding as of ,
2000 and gives effect to the automatic conversion of all outstanding shares of
redeemable convertible preferred stock into 6,543,083 shares of common stock.
This number excludes:
- shares subject to options outstanding as of , 2000,
at a weighted average exercise price of $ per share; and
- shares that may be purchased by the underwriters to cover
over-allotments, if any.
Except as otherwise indicated, all information in this prospectus assumes
no exercise of the underwriters' over-allotment option.
5
9
SUMMARY CONSOLIDATED FINANCIAL DATA
YEAR ENDED DECEMBER 31,
-------------------------------------
1997 1998 1999
-------- -------- ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
CONSOLIDATED STATEMENT OF INCOME DATA:
Revenues................................................. $53,718 $70,959 $150,862
Operating income......................................... 3,500 6,517 18,362
Net income............................................... $ 2,189 $ 3,828 $ 9,256
======= ======= ========
Net income per share:
Basic.................................................. $ 0.14 $ 0.23 $ 0.57
======= ======= ========
Diluted................................................ $ 0.14 $ 0.22 $ 0.42
======= ======= ========
Weighted average shares:
Basic.................................................. 15,144 15,144 15,147
======= ======= ========
Diluted................................................ 15,144 17,593 21,862
======= ======= ========
PRO FORMA INFORMATION (UNAUDITED):
Pro forma net income(1).................................. $ 1,287 $ 2,864
======= =======
Pro forma net income per share(2):
Basic.................................................. $ 0.08 $ 0.16 $ 0.43
======= ======= ========
Diluted................................................ $ 0.08 $ 0.16 $ 0.41
======= ======= ========
Pro forma weighted average shares:
Basic.................................................. 15,144 18,016 21,690
======= ======= ========
Diluted................................................ 15,144 18,016 22,578
======= ======= ========
AS OF DECEMBER 31, 1999
----------------------------------
ACTUAL AS ADJUSTED(3)
--------------- ---------------
CONSOLIDATED BALANCE SHEET DATA:
Cash........................................................ $ 1,158 $
Working capital............................................. 24,853
Total assets................................................ 59,535
Total debt.................................................. 18,812
Total stockholders' equity.................................. 2,871
- ---------------
(1) Pro forma net income gives effect to the adjustment for federal income taxes
that we would have recorded if we had been a C corporation during these
periods.
(2) Pro forma net income per share for 1998 and 1999 assumes conversion of the
redeemable convertible preferred stock at the rate of 1.1814 shares of
common stock for each share of redeemable convertible preferred stock, at
the later of the date of issuance of the redeemable convertible preferred
stock or the beginning of the period presented. For a description of the
computation of the pro forma net income per share and the number of shares
used in the pro forma calculations, see Note 1 of Notes to Consolidated
Financial Statements.
(3) The As Adjusted column reflects conversion of all outstanding redeemable
convertible preferred stock, our receipt of the net proceeds from the
offering (assuming an initial public offering price of $
per share), after deducting estimated underwriting discounts and
commissions and estimated offering expenses and application of a portion of
such proceeds to repay approximately $6.8 million of bank debt. See
"Capitalization" and "Use of Proceeds."
6
10
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before purchasing our common stock.
Investing in our common stock involves a high degree of risk. Risks and
uncertainties, in addition to those we describe below, that are not presently
known to us or that we currently believe are immaterial may also impair our
business operations. If any of the following risks occur, our business could be
harmed, the price of our common stock could decline and you may lose all or part
of your investment. See "Special Note Regarding Forward-Looking Statements."
WE MAY NOT BE ABLE TO HIRE OR RETAIN A SUFFICIENT NUMBER OF QUALIFIED ENGINEERS,
MANAGERS, TECHNICIANS AND OTHER EMPLOYEES TO SUSTAIN OUR GROWTH, MEET OUR
CONTRACTUAL COMMITMENTS OR MAINTAIN THE QUALITY OF OUR SERVICES.
Our future success will depend on our ability to attract and retain
additional highly skilled engineering, managerial and technical personnel.
Competition for such personnel is intense, especially for engineers and
qualified technicians with expertise designing and building local
telecommunications networks, and some major markets, particularly the New York
metropolitan area, are experiencing labor shortages. We may be unable to attract
sufficiently qualified personnel in adequate numbers to meet the demand for our
services.
OUR BUSINESS WILL NOT OPERATE EFFICIENTLY AND OUR RESULTS OF OPERATIONS WILL BE
NEGATIVELY AFFECTED IF WE ARE UNABLE TO MANAGE OUR GROWTH EFFECTIVELY.
We are experiencing a period of significant expansion and anticipate that
further expansion will be required to address potential growth in the demand for
our new and existing services. From December 31, 1998 to December 31, 1999, we
increased our number of employees from 415 to 841. In order to increase our
revenues significantly, we need to hire a substantial number of personnel in the
near future, including program management, engineering and technical personnel.
The actual number of employees we will need to hire is not determinable and may
fluctuate significantly depending on the size and number of new contracts we
receive and any changes to the scope of our existing projects. We expect this
expansion to continue to place a significant strain on our managerial,
operational and financial resources.
To manage the expected growth of our operations and personnel, we will be
required to:
- improve existing and implement new operational, financial and management
controls, reporting systems and procedures; and
- hire, integrate, train, motivate and manage employees.
If we fail to address these issues our business may be harmed.
WE EXPECT OUR QUARTERLY RESULTS TO FLUCTUATE. IF WE FAIL TO MEET REVENUE AND
EARNINGS ESTIMATES, OUR STOCK PRICE COULD DECLINE.
Our quarterly and annual operating results have fluctuated in the past and
will vary in the future due to a variety of factors, many of which are outside
of our control. The factors outside of our control include:
- the timing and size of network deployment by our customers;
- product mix;
- fluctuations in demand for our services;
- reductions in the prices of services offered by our competitors;
- costs of integrating acquired technologies or businesses; and
- telecommunications market conditions and economic conditions generally.
7
11
The factors within our control include:
- changes in the actual and estimated costs and timing to complete
unit-price, time-certain projects;
- the timing of expansion into new markets; and
- the identification, timing and payments associated with possible
acquisitions.
Due to these factors, quarterly revenues, expenses and results of
operations could vary significantly in the future. You should take these factors
into account when evaluating past periods, and, because of the potential
variability due to these factors, you should not rely upon results of past
periods as an indication of our future performance. In addition, the long-term
viability of our business could be negatively impacted if there were a downward
trend in these factors. Because our operating results may vary significantly
from quarter to quarter based upon the factors described above, results may not
meet the expectations of securities analysts and investors, and this could cause
the price of our common stock to decline significantly.
OUR BUSINESS IS SEASONAL, EXPOSING US TO REDUCED REVENUE IN THE FIRST QUARTER OF
EACH YEAR.
We experience reduced revenue in the first quarter of each year relative to
other quarters. We believe these variations are partly due to the fact that the
budgetary years of our customers end in December and their new budgets may not
be in place until well into the first quarter. We believe our customers
sometimes delay their work orders until their budgets are in place. The onset of
winter also affects our ability to render certain network services that must be
performed outdoors.
OUR SUCCESS IS DEPENDENT ON THE CONTINUED TREND TOWARD OUTSOURCING
TELECOMMUNICATIONS NETWORK SERVICES.
Our success is dependent on the continued trend by CLECs, Internet service
providers, and carriers' carriers to outsource their network design, deployment,
upgrading and maintenance needs. If these companies elect to perform more
network deployment services themselves, our revenues may decline and our
business would be harmed.
OUR SUCCESS IS DEPENDENT ON THE CONTINUED GROWTH IN THE DEPLOYMENT OF
TELECOMMUNICATIONS NETWORKS, WIRELESS SYSTEMS AND INTERNET GROWTH.
The telecommunications, Internet and wireless communications industries
have experienced a dramatic rate of growth both in the United States and
internationally. If the rate of growth slows in any of these industries and our
customers reduce their capital investments in infrastructure or technology or
fail to expand into new geographic areas, our business may be harmed.
IF OUR CUSTOMERS DO NOT RECEIVE SUFFICIENT FINANCING, THE DEPLOYMENT OF NEW
TELECOMMUNICATIONS NETWORKS WILL BE DELAYED AND OUR REVENUES WILL BE NEGATIVELY
IMPACTED.
A significant portion of our revenue is generated from communications
companies seeking to deploy and expand their networks. Some of these customers
and other potential customers are new companies with limited or no operating
histories and limited financial resources. These customers must obtain
significant financing to fund operations and deploy their networks. If these
companies fail to receive adequate financing, particularly after we have begun
working with them, our results of operations may be harmed.
8
12
MANY OF OUR SERVICE AGREEMENTS MAY BE CANCELED ON SHORT NOTICE, AND WE MAY BE
UNSUCCESSFUL IN REPLACING OUR SERVICE AGREEMENTS WHEN THEY EXPIRE.
We could experience a material adverse effect on our revenue, net income
and liquidity if:
- our customers cancel a significant number of service agreements;
- we fail to renew a significant number of our existing service agreements
upon their expiration; or
- we complete the required work under a significant number of our
non-recurring projects and cannot replace them with similar projects.
Many of our customers may cancel our service agreements with them on short
notice, typically less than seven days, even if we are not in default under the
agreement.
OUR MASTER SERVICE AGREEMENTS DO NOT ASSURE US REVENUE.
We currently derive a significant portion of our revenue under our master
service agreements, which primarily serve as pricing arrangements with no
revenue guarantees. A significant decline in the work our customers assign us
under our master service agreements could materially and adversely affect our
revenue and net income. Under our master service agreements, we may be one of
several companies that perform services for the customer, and our customers have
no obligations under our master service agreements to undertake any work with
us.
OUR BUSINESS MAY BE HARMED BY INCREASED REGULATION OF THE TELECOMMUNICATIONS
INDUSTRY.
Regulation of the telecommunications industry is changing rapidly, with
ongoing effects on our opportunities, competition and other aspects of our
business. The regulatory environment varies substantially from state to state.
Generally, we must obtain and maintain certificates of authority from regulatory
bodies in most states where we offer services. In addition, some of our
customers are subject to extensive regulation, which could adversely affect the
expected benefits of our arrangements with them. We cannot assure you that
future regulatory, judicial or legislative activities will not have a material
adverse effect on us.
Our operations are also subject to a variety of federal, state and local
and foreign environmental, safety and health laws and governmental regulations.
Although we monitor compliance with such laws and regulations, we cannot assure
you that we have been or will be in complete compliance with these laws and
regulations or that we will not be exposed to claims or actions that could have
a material adverse effect on our company. Although we are not aware of any
liabilities relating to contamination at the numerous sites leased by us in
connection with our operations, we cannot assure you that we will not be liable
for any contamination at these sites or that any liabilities in connection with
any such contamination will not have a material adverse effect on our company.
A LOSS OF ONE OR MORE OF OUR KEY CUSTOMERS OR DELAYS IN PROJECT TIMING FOR SUCH
CUSTOMERS COULD CAUSE A SIGNIFICANT DECREASE IN OUR REVENUES.
We have derived, and believe that we will continue to derive, a significant
portion of our revenues from a limited number of customers. For example, for the
year ended December 31, 1999, we derived approximately 26% of our revenues from
our largest customer, approximately 13% of our revenues from another customer
and approximately 8% of our revenues from each of two additional customers. The
services required by any one customer can be limited by a number of factors,
including industry consolidation, technological developments, economic slowdown
and internal budget constraints. As a result of these factors, the volume of
work performed for specific customers is likely to vary from period to period,
and a major customer in one period may not require our services in a subsequent
period. Accordingly, we cannot be certain that present or future customers will
not terminate their network service arrangements with us or significantly reduce
or delay their contracts. Any termination, change, reduction or delay in our
projects could seriously harm our business.
9
13
OUR OPERATING RESULTS MAY SUFFER BECAUSE OF COMPETITION IN THE NETWORK SERVICES
INDUSTRY.
The network services market is highly competitive and fragmented and is
served by numerous companies. Many of these competitors have significantly
greater financial, technical and marketing resources, generate greater revenues
and have greater name recognition and experience than us.
We believe that the principal competitive factors in our market include
quality and responsiveness of service, industry experience, reputation, the
ability to deliver results on time and competitive pricing. In addition,
expertise in new and evolving technologies has become increasingly important. We
also believe our ability to compete depends on a number of factors outside of
our control, including:
- the prices at which others offer competitive services;
- the ability and willingness of our competitors to finance customers'
projects on favorable terms;
- the ability of our customers to perform the services themselves; and
- the extent of our competitors' responsiveness to customer needs.
We may not be able to compete effectively on these or other bases, and, as
a result, our revenues or income may decline and harm our business.
OUR BUSINESS MAY BE HARMED IF OUR NEW SERVICE OFFERINGS DO NOT GAIN CUSTOMER
ACCEPTANCE.
Part of our strategy is to generate increased revenues by developing new
service offerings for our customers. These new services may not be favorably
received by customers, may not generate significant revenues or may not be
offered in a cost-effective or timely manner. If we are unable to successfully
expand our service offerings, our business may be harmed.
WE MUST KEEP PACE WITH RAPID TECHNOLOGICAL CHANGE, MARKET CONDITIONS AND
INDUSTRY DEVELOPMENTS TO MAINTAIN OR GROW OUR REVENUES.
The market for network system design, deployment, upgrading and maintenance
services is characterized by rapid change and technological improvements. Our
future success will depend in part on our ability to enhance our current service
offerings to keep pace with technological developments and to address
increasingly sophisticated customer needs. We may not be successful in
developing and marketing in a timely manner service offerings that respond to
the technological advances by others and our services may not adequately or
competitively address the needs of the changing marketplace. If we are not
successful in responding in a timely manner to technological change, market
conditions and industry developments, our revenues may decline and our business
may be harmed.
OUR BUSINESS OPERATIONS COULD BE SIGNIFICANTLY DISRUPTED IF WE LOSE MEMBERS OF
OUR MANAGEMENT TEAM.
Our success depends to a significant degree upon the continued
contributions of our executive officers, both individually and as a group. See
"Management -- Directors and Executive Officers" for a listing of our executive
officers. Our future performance will be substantially dependent on our ability
to retain and motivate them. The loss of the services of any of our executive
officers, particularly Hugh O'Kane, our Chairman, Alf Hansen, our President and
Chief Executive Officer, or Kevin O'Kane, our Vice Chairman and Chief Operating
Officer, could prevent us from executing our business strategy.
OUR SUCCESS IS DEPENDENT ON THE ABILITY OF OUR NEW MANAGEMENT TEAM TO WORK
TOGETHER.
A number of the members of our senior management team, including Alf
Hansen, our President and Chief Executive Officer, Joseph Haines, our Executive
Vice President in charge of network deployment, upgrade and maintenance
services, Victor DeJoy, our Executive Vice President in charge of design,
engineering and program management services, and Rif Haffar, our Executive Vice
President in charge of marketing and business development, have been with our
company for only a few months. Given their limited experience with our company
and working with other members of our management team, it is
10
14
possible that these officers will not integrate well into our business. Their
failure to integrate well would have a significant effect on our future success.
STRIKES, WORK STOPPAGES AND SLOWDOWNS BY OUR EMPLOYEES WOULD NEGATIVELY AFFECT
OUR RESULTS OF OPERATIONS.
We currently have collective bargaining agreements in place with several
local chapters of the International Brotherhood of Electrical Workers, most of
which expire within one year. These agreements cover approximately 77% of our
841 employees. We cannot assure you that our relations with our unionized
workforce will remain positive or that our workforce will not initiate a strike,
work stoppage or slowdown in the future. In the event of such a job action, our
business would be negatively affected and we cannot be sure that we would be
able to adequately meet the needs of our customers.
OUR BUSINESS MAY BE HARMED IF WE INCREASE OUR PERSONNEL IN ANTICIPATION OF A
PROJECT AND UNDERUTILIZE OUR PERSONNEL BECAUSE SUCH PROJECT IS DELAYED, REDUCED
OR TERMINATED.
If we increase our personnel in anticipation of a project and such project
is delayed, reduced or terminated, we may underutilize this additional
personnel, which would increase our general and administrative expenses and
could harm our business.
WE MAY NOT BE SUCCESSFUL IN OUR EFFORTS TO IDENTIFY, COMPLETE OR INTEGRATE
ACQUISITIONS.
Our failure to manage risks associated with acquisitions could harm our
business. A component of our business strategy is to expand our presence in new
or existing markets. One way we may choose to accomplish this task is to acquire
additional businesses. We may not be able to identify, acquire or profitably
manage additional businesses or integrate successfully any acquired businesses
without substantial expense, delay or other operational or financial problems.
Acquisitions involve a number of risks, including:
- diversion of management's attention;
- difficulty in integrating and absorbing the acquired business, its
employees, corporate culture, managerial systems and processes and
services;
- failure to retain key personnel and employee turnover;
- customer dissatisfaction or performance problems with an acquired firm;
- assumption of unknown liabilities; and
- other unanticipated events or circumstances.
WE MAY ENCOUNTER POTENTIAL COSTS OR CLAIMS RESULTING FROM PROJECT PERFORMANCE.
Many of our engagements involve projects that are significant to the
operations of our customers' businesses. Our failure to meet a customer's
expectations in the planning or implementation of a project or the failure of
unrelated third party vendors to meet project completion deadlines could damage
our reputation and adversely affect our ability to attract new business. We
frequently undertake projects in which we guarantee performance based upon
defined operating specifications or guaranteed delivery dates. Unsatisfactory
performance or unanticipated difficulties or delays in completing such projects
may result in a direct reduction in payments to us, or payment of damages by us,
which could harm our business.
THE CONSOLIDATION OF CLECS AND INTERNET SERVICE PROVIDERS COULD IMPACT OUR
BUSINESS.
Recently, the telecommunications industry has been characterized by
significant consolidation activity. This consolidation may lead to a greater
ability among CLECs and Internet service providers to provide a full suite of
network services, and could simplify integration and installation, which may
lead to a reduction in demand for our services. Moreover, the consolidation of
CLECs and Internet service providers
11
15
could have the effect of reducing the number of our current or potential
customers which could result in increased bargaining power for CLECs and
Internet service providers. This potential increase in bargaining power could
create competitive pressures whereby a particular customer may request our
exclusivity with them in a particular market. Accordingly, we may not be able to
represent those customers who wish to retain our services on an exclusive basis.
A PORTION OF OUR REVENUE IS ACCOUNTED FOR ON A PERCENTAGE-OF-COMPLETION BASIS
WHICH COULD CAUSE OUR QUARTERLY RESULTS TO FLUCTUATE.
A portion of our revenue is derived from fixed-price contracts which are
accounted for on a percentage-of-completion basis. Under the
percentage-of-completion method, in each period we recognize expenses as they
are incurred and we recognize revenue based on a comparison of the costs
incurred for each project to our currently estimated total costs to be incurred
for the project. Accordingly, the revenue we recognize in a given quarter
depends on the costs we have incurred for individual projects and our current
estimate of the total remaining costs to complete individual projects. If in any
period we significantly increase our estimate of the total costs to complete a
project, we may recognize very little or no additional revenue with respect to
that project. As a result, our gross margin in such period and in future periods
may be significantly reduced and in some cases we may recognize a loss on
individual projects prior to their completion. To the extent that our estimates
fluctuate over time or differ from actual requirements, gross margins in
subsequent quarters may vary significantly from our estimates and could harm our
business.
OUR EXECUTIVE OFFICERS AND DIRECTORS AND THEIR AFFILIATES WILL CONTROL % OF
OUR COMMON STOCK AFTER THIS OFFERING AND, AS A RESULT, WILL BE ABLE TO EXERCISE
CONTROL OVER ALL MATTERS REQUIRING STOCKHOLDER APPROVAL.
On completion of this offering, our executive officers and directors and
their affiliates will beneficially own, in the aggregate, approximately %
of our outstanding common stock. In particular, Hugh O'Kane, the Chairman of the
Board of Directors, and Kevin O'Kane, the Vice Chairman of the Board of
Directors and Chief Operating Officer, will beneficially own, in the aggregate,
approximately % of our outstanding common stock. As a result, these
stockholders will be able to exercise control over all matters requiring
stockholder approval, including the election of directors and approval of
significant corporate transactions, which may have the effect of delaying or
preventing a third party from acquiring control over us. These transactions may
include those that other stockholders deem to be in their best interests and in
which those other stockholders might otherwise receive a premium for their
shares over their current prices. For additional information regarding our stock
ownership see "Principal Stockholders."
OUR STOCK PRICE MAY BE PARTICULARLY VOLATILE BECAUSE OF THE INDUSTRY WE ARE IN.
The stock market in general has recently experienced extreme price and
volume fluctuations. In addition, the market prices of securities of technology
and telecommunications companies have been extremely volatile, and have
experienced fluctuations that have often been unrelated to or disproportionate
to the operating performance of such companies. These broad market fluctuations
could adversely affect the price of our common stock.
WE HAVE BROAD DISCRETION TO USE THE OFFERING PROCEEDS AND OUR INVESTMENT OF
THOSE PROCEEDS MAY NOT YIELD A FAVORABLE RETURN.
Most of the net proceeds of this offering are not allocated for specific
uses. Our management has broad discretion to spend the proceeds from this
offering in ways with which you may not agree. The failure of our management to
apply these funds effectively could result in unfavorable returns. This could
harm our business and could cause the price of our common stock to decline.
12
16
PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW MAY MAKE IT DIFFICULT FOR A
THIRD PARTY TO ACQUIRE OUR COMPANY AND COULD DEPRESS THE PRICE OF OUR COMMON
STOCK.
Upon the closing of the offering, Delaware corporate law and our second
restated certificate of incorporation and bylaws will contain provisions that
could delay, defer or prevent a change in control of our company or our
management. These provisions could also discourage proxy contests and make it
more difficult for you and other stockholders to elect directors and take other
corporate actions. As a result, these provisions could limit the price that
investors are willing to pay in the future for shares of our common stock. These
provisions include:
- creating a classified board of directors;
- authorizing the board of directors to issue additional preferred stock;
- prohibiting cumulative voting in the election of directors;
- limiting the persons who may call special meetings of stockholders;
- prohibiting stockholder action by written consent; and
- establishing advance notice requirements for nominations for election to
the board of directors or for proposing matters that can be acted on by
stockholders at stockholder meetings.
We are also subject to certain provisions of Delaware law which could
delay, deter or prevent us from entering into an acquisition, including Section
203 of the Delaware General Corporation Law, which prohibits a Delaware
corporation from engaging in a business combination with an interested
stockholder unless specific conditions are met. See "Description of Capital
Stock -- Preferred Stock and Anti-Takeover Provisions."
OUR SECURITIES HAVE NO PRIOR MARKET AND WE CANNOT ASSURE YOU THAT OUR STOCK
PRICE WILL NOT DECLINE AFTER THIS OFFERING.
Before this offering, there has not been a public market for our common
stock and the trading market price of our common stock may decline below the
initial public offering price. The initial public offering price has been
determined by negotiations between us and the representatives of the
underwriters. See "Underwriting" for a discussion of the factors considered in
determining the initial public offering price. In addition, an active public
market for our common stock may not develop or be sustained after this offering.
YOU WILL EXPERIENCE IMMEDIATE AND SUBSTANTIAL DILUTION BY INVESTING IN OUR
COMMON STOCK.
The initial public offering price is substantially higher than the net
tangible book value of each outstanding share of common stock immediately after
the offering. Purchasers of common stock in this offering will suffer immediate
and substantial dilution. This dilution will reduce the net tangible book value
of their shares, since these investments will be at a substantially higher per
share price than paid by our existing stockholders. The dilution will be $
per share in the net tangible book value of the common stock from the initial
public offering price. If additional shares are sold by the underwriters
following exercise of their over-allotment option, or if outstanding options or
warrants to purchase shares of common stock are exercised, you will incur
further dilution.
FUTURE SALES OF OUR COMMON STOCK HELD BY CURRENT STOCKHOLDERS MAY DEPRESS OUR
STOCK PRICE.
Sales of a substantial number of shares of common stock by current
stockholders in the public market following this offering could cause the market
price of our common stock to decline. All the shares sold in this offering will
be freely tradable. After this offering, we will have outstanding
shares of
13
17
common stock. Of these shares, shares will be eligible for sale
in the public market beginning 180 days after the date of this prospectus. After
this offering we also intend to register up to approximately
additional shares of our common stock for sale upon the exercise of outstanding
stock options issued pursuant to compensatory benefit plans or reserved for
future issuance pursuant to our stock option and restricted stock purchase plan.
14
18
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve risks and
uncertainties. These statements relate to future events or our future financial
performance. In some cases, you can identify forward-looking statements by
terminology such as "may," "will," "should," "except," "plan," "anticipate,"
"believe," "estimate," "predict," "potential" or "continue," the negative of
such terms or other comparable terminology. These statements are only
predictions. Actual events or results may differ materially. In evaluating these
statements, you should specifically consider various factors, including the
risks described above and in other parts of this prospectus. These factors may
cause our actual results to differ materially from any forward-looking
statement. Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements.
15
19
USE OF PROCEEDS
We expect to receive net proceeds of approximately $ million from
the sale of the shares of common stock, or approximately
$ million if the underwriters' exercise their over-allotment option in
full, assuming an initial public offering price of $ per share and after
deducting the estimated underwriting discounts and commissions and offering
expenses payable by us.
We plan to use approximately $ million of the net proceeds of this
offering to reduce outstanding borrowings under our revolving credit facility.
Indebtedness under our revolving line of credit bears interest at the prime rate
plus 0.25% and has a maturity date of June 28, 2002. The prime rate was 8.5% as
of December 31, 1999. We also intend to use approximately $0.9 million of the
net proceeds of this offering to pay dividends accrued after December 31, 1998
on the redeemable convertible preferred stock to be converted to common stock
upon the closing of this offering. The remaining net proceeds from this offering
will be used for working capital and general corporate purposes. In addition, we
may use a portion of the net proceeds to acquire businesses; however, we
currently have no commitments or agreements and are not involved in any
negotiations to do so. Pending the uses described above, we intend to invest the
net proceeds in interest-bearing, investment-grade securities.
DIVIDEND POLICY
Covenants in our credit facility prohibit us from paying cash dividends,
other than those on our redeemable convertible preferred stock. We currently
intend to retain any future earnings to finance the growth and development of
our business and therefore do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to pay cash dividends will be at
the discretion of the board of directors and will be dependent upon our
financial condition, results of operations, capital requirements, general
business conditions and other factors that the board of directors may deem
relevant.
While we were an S corporation, we made cash distributions to stockholders
of approximately $0.2 million in 1997 and $5.1 million in 1998. See "Certain
Relationships and Related Transactions."
16
20
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 1999:
- On an actual basis;
- On a pro forma basis after giving effect to the conversion of all
outstanding redeemable convertible preferred stock into 6,543,083 shares
of common stock and the cash payment of preferred dividends accrued from
January 1, 1999 through December 31, 1999; and
- On a pro forma as adjusted basis, giving effect to the conversion of all
outstanding redeemable convertible preferred stock, our sale of the
common stock in this offering at an assumed offering price of $ per
share, and the application of the net proceeds as described under "Use of
Proceeds."
This information should be read together with our consolidated financial
statements and related notes thereto included elsewhere in this prospectus.
AS OF
DECEMBER 31, 1999
-----------------------------------
PRO FORMA
ACTUAL PRO FORMA AS ADJUSTED
------- --------- -----------
(IN THOUSANDS)
Cash....................................................... $ 1,158 $ 468 $
======= ======= =======
Long-term debt, including current portion(1):
Revolving credit facility................................ $ 8,841 $ 8,841 $
Subordinated notes payable to stockholders............... 7,115 7,115
Other debt............................................... 2,856 2,856
------- ------- -------
Total long-term debt, including current portion:...... 18,812 18,812
------- ------- -------
Redeemable convertible preferred stock at stated
liquidation preference of $2.2553 per share, $.001 par
value, 5,538,458 shares authorized, issued and
outstanding(2)........................................... 12,491 -- --
------- ------- -------
Stockholders' Equity:
Common stock, $.001 par value, 44,461,542 shares
authorized, 15,279,400 shares outstanding(3).......... 16 23
Additional paid-in capital............................... 2,496 14,290
Retained earnings........................................ 359 359
------- ------- -------
Total stockholders' equity............................ 2,871 14,672
------- ------- -------
Total capitalization....................................... $34,174 $33,484 $
======= ======= =======
- ---------------
(1) See Notes 4 and 5 of Notes to Consolidated Financial Statements.
(2) Redeemable convertible preferred stock is presented at its stated
liquidation preference in accordance with generally accepted accounting
principles. We have agreed with the holders of our redeemable convertible
preferred stock that preferred dividends accrued from July 23, 1998 through
December 31, 1998 will be paid in the form of additional common stock, and
dividends accrued from January 1, 1999 through the date of conversion will
be paid in cash. The conversion ratio of 1.1814 shares of common stock for
each share of redeemable convertible preferred stock gives effect to
preferred dividends accrued from July 23, 1998 through December 31, 1998.
(3) Does not include 2,361,500 shares subject to options outstanding as of
December 31, 1999 at a weighted average exercise price of $3.54 per share
and does not include 1,185,000 options to purchase common stock granted
since December 31, 1999 at a weighted average exercise price of $10.07 per
share.
17
21
DILUTION
If you invest in our common stock, your interest will be diluted by the
difference between the public offering price per share of our common stock and
the pro forma as adjusted net tangible book value per share of our common stock
immediately after this offering. Our pro forma net tangible book value at
December 31, 1999 was approximately $15.1 million, or $0.69 per share of common
stock. Pro forma net tangible book value represents the amount of total tangible
assets less total liabilities, divided by the pro forma number of shares of
common stock outstanding at December 31, 1999, and gives effect to the
conversion of our currently outstanding shares of our redeemable convertible
preferred stock into 6,543,083 shares of common stock upon the closing of this
offering.
After giving effect to our sale of common stock in this offering at an
assumed initial public offering price of $ per share, and our receipt of the
estimated net proceeds from the sale, our pro forma net tangible book value as
of December 31, 1999 would have been approximately $ million, or $ per
share. This represents an immediate increase in pro forma net tangible book
value of $ per share to existing stockholders and an immediate dilution of
$ per share to new investors. The following table illustrates this per share
dilution:
Assumed initial public offering price per share............. $
Pro forma net tangible book value per share at December
31, 1999.............................................. $0.69
Increase per share attributable to new investors.......
-----
Pro forma net tangible book value per share after this
offering..................................................
-----
Dilution per share to new investors......................... $
=====
The following table summarizes, on a pro forma basis as of December 31,
1999, the differences between existing stockholders and the new investors with
respect to the number of shares of common stock purchased from us, the total
consideration paid to us and the average price per share paid by existing
stockholders and by new investors purchasing common stock in this offering,
after adjustment for:
- the conversion of our currently outstanding shares of redeemable
convertible preferred stock into common stock; and
- our sale of shares of common stock at an assumed initial public
offering price of $ per share, before deducting estimated
underwriting discounts and commissions and estimated offering expenses
payable by us.
SHARES PURCHASED TOTAL CONSIDERATION AVERAGE
------------------ ------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
------- ------- -------- ------- ---------
Existing stockholders...................... % $ % $
New investors.............................. % $ % $
------- ------ ------- ------
Total...................................... 100.0% $ 100.0%
======= ====== ======= ======
The discussion and tables above assume no exercise of stock options
outstanding as of December 31, 1999. As of December 31, 1999, there were options
outstanding to purchase a total of 2,361,500 shares of common stock, with a
weighted average exercise price of $3.54 per share. If holders exercise these
outstanding options there will be further dilution. An additional 1,185,000
options to purchase shares of common stock were granted at a weighted average
exercise price of $10.07 per share since December 31, 1999. See "Description of
Capital Stock" and Note 11 of Notes to Consolidated Financial Statements.
18
22
SELECTED CONSOLIDATED FINANCIAL DATA
The selected data presented below under the captions "Consolidated
Statement of Income Data" and "Consolidated Balance Sheet Data" for, and as of
the end of, each of the years in the five-year period ended December 31, 1999,
are derived from our consolidated financial statements. The audited consolidated
financial statements as of December 31, 1998 and 1999 and for each of the years
in the three-year period ended December 31, 1999, and report thereon, are
included elsewhere in this prospectus. When you read this selected historical
financial data, it is important that you read along with it the historical
financial statements and related notes as well as the section titled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" included elsewhere in this prospectus. Historical results are not
necessarily indicative of future results.
YEAR ENDED DECEMBER 31,
----------------------------------------------------
1995 1996 1997 1998 1999
------- ------- ------- ------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
CONSOLIDATED STATEMENT OF INCOME DATA:
Revenues................................ $26,713 $49,473 $53,718 $70,959 $150,862
Cost of revenues........................ 18,240 38,321 43,226 56,497 120,750
General, administrative and marketing
expenses.............................. 6,159 6,976 6,992 7,945 11,750
------- ------- ------- ------- --------
Operating income........................ 2,314 4,176 3,500 6,517 18,362
Interest expense........................ -- -- 1,151 1,143 1,104
Other expense (income), net............. (24) (8) 9 166 27
------- ------- ------- ------- --------
Income before income taxes.............. 2,338 4,184 2,340 5,208 17,231
Provision for income taxes.............. 265 394 151 1,380 7,975
------- ------- ------- ------- --------
Net income.............................. $ 2,073 $ 3,790 $ 2,189 $ 3,828 $ 9,256
======= ======= ======= ======= ========
Net income per share:
Basic................................. $ 0.14 $ 0.25 $ 0.14 $ 0.23 $ 0.57
======= ======= ======= ======= ========
Diluted............................... $ 0.14 $ 0.25 $ 0.14 $ 0.22 $ 0.42
======= ======= ======= ======= ========
Weighted average shares:
Basic................................. 15,144 15,144 15,144 15,144 15,147
======= ======= ======= ======= ========
Diluted............................... 15,144 15,144 15,144 17,593 21,862
======= ======= ======= ======= ========
PRO FORMA INFORMATION (UNAUDITED):
Income before income taxes.............. $ 2,338 $ 4,184 $ 2,340 $ 5,208
Pro forma provision for income
taxes(1).............................. 1,052 1,883 1,053 2,344
------- ------- ------- -------
Pro forma net income(2)................. $ 1,286 $ 2,301 $ 1,287 $ 2,864
======= ======= ======= =======
Pro forma net income per share(3):
Basic................................. $ 0.08 $ 0.15 $ 0.08 $ 0.16 $ 0.43
======= ======= ======= ======= ========
Diluted............................... $ 0.08 $ 0.15 $ 0.08 $ 0.16 $ 0.41
======= ======= ======= ======= ========
Pro forma weighted average shares:
Basic................................. 15,144 15,144 15,144 18,016 21,690
======= ======= ======= ======= ========
Diluted............................... 15,144 15,144 15,144 18,016 22,578
======= ======= ======= ======= ========
19
23
AS OF DECEMBER 31,
---------------------------------------------------
1995 1996 1997 1998 1999
------- ------- ------- ------- -------
(IN THOUSANDS)
CONSOLIDATED BALANCE SHEET DATA:
Cash..................................... $ 1,270 $ 1,525 $ 2,312 $ 1,495 $ 1,158
Working capital.......................... 2,168 4,664 2,516 10,691 24,853
Total assets............................. 12,739 20,044 18,432 32,309 59,535
Total debt............................... 6,976 8,607 22,922 13,985 18,812
Total stockholders' equity (deficit)..... 2,762 5,652 (4,024) (6,388) 2,871
- ---------------
(1) Through July 23, 1998, we elected to be taxed as an S corporation under the
Internal Revenue Code of 1986. Accordingly, we did not recognize any
provision for federal income tax expense during periods prior to that time.
The pro forma adjustment for income taxes reflects the pro forma provision
for federal income taxes which we would have recorded if we had been a C
corporation during these periods.
(2) Pro forma net income for 1995 through 1998 gives effect to the pro forma
provision for federal income taxes that we would have recorded if we had
been a C corporation during these periods.
(3) Pro forma earnings per share for 1998 and 1999 assumes conversion of the
redeemable convertible preferred stock at the rate of 1.1814 shares of
common stock for each share of redeemable convertible preferred stock, at
the later of the beginning of the period presented or the date of issuance
of the redeemable convertible preferred stock. For a description of the
computation of the pro forma net income per share and the number of shares
used in the pro forma calculations for the years 1997 through 1999, see Note
1 of Notes to Consolidated Financial Statements.
20
24
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with our
consolidated financial statements and the related notes and the other financial
information appearing elsewhere in this prospectus. See also "Special Note
Regarding Forward-Looking Statements" on page 15.
OVERVIEW
We provide outsourced local telecommunications network services to
telecommunications companies by supplying the expertise and resources needed to
enable our customers to build and connect their networks to other
telecommunications companies and individual end users. We provide services 24
hours a day, seven days a week.
For most of our services, revenues are recognized under the completed
contract method, in which we recognize revenues when our services have been
performed and the projects have been completed. For projects whose duration is
expected to exceed 90 days, we recognize revenues using the percentage-of-
completion method. Under the percentage-of-completion method, in each period we
recognize expenses as they are incurred and we recognize revenue based on a
comparison of the costs incurred for each project to our currently estimated
total costs to be incurred for the project. Accordingly, the revenue we
recognize in a given quarter depends on the costs we have incurred for
individual projects and our current estimate of the total remaining costs to
complete individual projects. If in any period we significantly increase our
estimate of the total remaining costs to complete a project, we may recognize
very little or no additional revenue with respect to that project. As a result,
our gross margin in such period and in future periods may be significantly
reduced and in some cases we may recognize a loss on individual projects prior
to their completion. The projects for which we use the percentage-of-completion
method of accounting are typically structured with milestone events that dictate
the timing of payments to us from our customers. Accordingly, there may be a
significant delay between the date we record the revenue and the date we receive
payment from our customers. Our customers for these projects may withhold 10%
from each billing until after the project has been completed.
We operate in cities in the Northeast and MidAtlantic regions, including
Baltimore, Boston, Newark, New York, Philadelphia, Stamford and Washington, D.C.
For the year 1999, approximately 80% of our revenues were earned from services
provided in the New York metropolitan region, including New York City, New
Jersey, Long Island and Westchester County.
Our customers for the design and deployment of telecommunications networks
are large, well-established telecommunications carriers as well as smaller,
early stage telecommunications carriers. We have derived, and believe that we
will continue to derive, a significant portion of our revenues from a limited
number of customers. For the year 1999, we derived approximately 26% of our
revenues from our largest customer and 13% of our revenues from our second
largest customer. The volume of work performed for specific customers is likely
to vary from period to period, and a major customer in one period may require a
lesser amount of our services in a subsequent period.
Our cost of sales includes direct compensation and benefits, allocation of
overhead including vehicles, facilities expenses, small tools and equipment, and
other direct project-related expenses. As of December 31, 1999, we had
approximately 756 employees working directly on projects and approximately 47
employees providing supervision and support to employees working directly on
projects. Labor and related benefits comprise the largest portion of our cost of
sales because our customers generally furnish most of the materials required for
each project, except where we provide program management services, in which case
we are responsible for providing the required materials as well as any
subcontracting services.
General, administrative and marketing expenses include compensation and
benefits, facilities expenses, provision for unrealizable accounts receivable,
incentive compensation and other related expenses not chargeable directly to
projects. As of December 31, 1999, we had approximately 38 employees performing
general and administrative work. Prior to December 31, 1999 we did not have any
employees devoted full
21
25
time to sales and marketing, and our advertising and marketing expenses were not
significant. We expect to increase our marketing expenses in the future.
Depreciation and amortization expenses include depreciation of our property
and equipment, primarily vehicles, and amortization related to leasehold
improvements and computer software purchased for internal use.
Interest expense is related to interest on notes payable to banks,
subordinated notes payable to stockholders, and installment note and capitalized
lease obligations related to equipment purchases. We currently have a $12.5
million revolving credit line with banks, under which we had $8.8 million
outstanding at December 31, 1999. Borrowings bear interest at the prime rate
plus 0.25%, and the credit facility expires in June 2002. We may borrow
additional funds in the future for general corporate purposes and possible
acquisitions, and we may incur additional interest expense as a result.
On January 1, 1997, we repurchased common shares owned by a stockholder and
issued a subordinated promissory note in the amount of $10.2 million bearing
interest at 6% per year. We make quarterly payments on that note, and as of
December 31, 1999, a balance of $6.7 million was outstanding. We also have $0.4
million in subordinated notes payable to our two principal common stockholders
bearing interest at 6% per year, and our bank credit facility currently does not
permit any payments on these notes. We also have installment note obligations,
which arise when we obtain financing from dealers or banks for equipment or
vehicles which we purchase for use by our technical field employees and
capitalized lease obligations which may arise when we lease equipment.
On July 23, 1998, we converted from an S corporation to a C corporation.
Prior to becoming a C corporation, our stockholders were taxed individually for
their share of our profits. Until July 23, 1998, our financial statements did
not reflect a provision for federal income taxes. Subsequent to that date, we
have recorded federal income taxes at the standard statutory C corporation rates
based on pre-tax income. For the year 1998, our financial statements reflect an
income tax provision based on pre-tax income earned from July 23, 1998 to
December 31, 1998.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, selected
statement of income data as a percentage of total revenues. Our results of
operations are reported as a single business segment. The percentages may not
add due to rounding.
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
----- ----- -----
CONSOLIDATED STATEMENT OF INCOME DATA:
Revenues.................................................... 100.0% 100.0% 100.0%
Cost of revenues............................................ 80.5 79.6 80.0
General, administrative and marketing expenses.............. 13.0 11.2 7.8
----- ----- -----
Operating income............................................ 6.5 9.2 12.2
Interest expense............................................ 2.1 1.6 0.7
Other expense, net.......................................... -- 0.2 --
----- ----- -----
Income before income taxes.................................. 4.4 7.3 11.4
Provision for income taxes.................................. 0.3 1.9 5.3
----- ----- -----
Net income.................................................. 4.1% 5.4% 6.1%
===== ===== =====
YEAR ENDED 1999 COMPARED TO YEAR ENDED 1998
Revenues. Our revenues increased 113% to $150.8 million in 1999 from $71.0
million in 1998. The increase was attributable to higher demand from our
customers for our services, as they expanded their telecommunications networks
primarily in the New York metropolitan area. During 1999, we entered into
22
26
an engineering, procurement and construction contract with a customer, or the
EPC contract, under which we recorded approximately $34.0 million of revenues
for the year. We also expanded our operations to the New England area during
1999.
Cost of revenues. Our cost of revenues increased 114% to $120.8 million in
1999 from $56.5 million in 1998, primarily due to an increase in technical
personnel in support of additional demand from customers for our services. Costs
of approximately $30.0 million were incurred in connection with the EPC
contract.
General, administrative and marketing expenses. Our general,
administrative and marketing expenses increased 48% to $11.8 million in 1999
from $7.9 million in 1998. The increase was primarily due to additional
administrative personnel required to support our increased level of revenues, as
well as a higher provision for unrealizable accounts receivable, which increased
by $1.4 million in 1999 compared with 1998 as a result of our increased level of
revenues.
Net income. Our net income increased 142% to $9.3 million in 1999 from
$3.8 million in 1998. This increase was due to significantly higher revenues
offset by increased cost of sales and increased general, administrative and
marketing expenses and further offset by an increase in the provision for income
taxes as a result of our change from an S corporation to a C corporation on July
23, 1998. That change resulted in an increase in our effective tax rate to 45%
in 1999 from 27% in 1998. Our financial statements for 1998 reflected an income
tax provision based on pre-tax income earned from July 23, 1998 to December 31,
1998. Our effective tax rate in 1999 was approximately 45% because a significant
portion of our operations are currently concentrated in New York City, which
subjects us to a local tax on income derived in that jurisdiction.
YEAR ENDED 1998 COMPARED TO YEAR ENDED 1997
Revenues. Our revenues increased by 32% to $71.0 million in 1998 from
$53.7 million in 1997. The increase was primarily attributable to higher demand
for our services from our customers as they expanded their telecommunications
networks primarily in the greater New York metropolitan area, and partially as a
result of the expansion of our operations in 1998 into the Philadelphia and
Washington, D.C. areas.
Cost of revenues. Our cost of revenues increased by 31% to $56.5 million
in 1998 from $43.2 million in 1997, primarily due to increased technical
personnel in support of additional demand from customers for our services.
General, administrative and marketing expenses. Our general,
administrative and marketing expenses increased approximately 14% to $7.9
million in 1998 from $7.0 million in 1997. The increase was due in part to
increased administrative personnel to support our higher level of revenues, and
in part to an increase of $0.3 million in rent expense for our former New York
City headquarters paid in 1998 to entities which are owned by our principal
common stockholders. Prior to 1998, we paid rent based on an arrangement with
our principal common stockholders. In 1998, we entered into a formal lease
agreement providing for rentals which are based on market values of comparable
properties in the local region.
Other expense, net. Other expense of $0.2 million in 1998 represented
certain nonrecurring consulting fees related to the change in our corporate
structure. See Note 1 of Notes to Consolidated Financial Statements.
Net income. Our net income increased 75% to $3.8 million in 1998 from $2.2
million in 1997. This increase was due to higher revenues offset by increased
cost of sales and increased general and administrative expenses, further offset
by an increase in the provision for income taxes as a result of our change from
an S corporation to a C corporation on July 23, 1998, which resulted in an
increase in the effective income tax rate to 27% in 1998 from 7% in 1997.
23
27
QUARTERLY OPERATING RESULTS
The following table presents our unaudited quarterly results, in dollars
and as a percentage of revenues, for the eight quarters ended December 31, 1999.
The percentages may not add due to rounding. The information for each of these
quarters has been prepared on the same basis as our audited financial statements
appearing elsewhere in this prospectus. The eight quarterly periods cover each
of our two most recently completed fiscal years reported in the consolidated
financial statements and the notes thereto included elsewhere in this
prospectus. We believe this period is sufficiently long to reflect historical
trends and fluctuations in our results of operations. We believe this
information reflects all adjustments, consisting of only normal recurring
adjustments, necessary for a fair presentation of such information in accordance
with generally accepted accounting principles.
QUARTER ENDED
---------------------------------------------------------------------------------------
MAR. 31, JUNE 30, SEPT. 30, DEC. 31, MAR. 31, JUNE 30, SEPT. 30, DEC. 31,
1998 1998 1998 1998 1999 1999 1999 1999
-------- -------- --------- -------- -------- -------- --------- --------
(IN THOUSANDS)
STATEMENT OF OPERATIONS DATA:
Revenues.......................... $14,729 $16,320 $16,873 $23,037 $20,165 $28,930 $46,447 $55,320
Cost of revenues.................. 11,516 14,177 14,825 15,979 15,965 24,194 37,066 43,525
General, administrative and
marketing expenses.............. 1,955 1,593 1,206 3,191 1,920 2,390 2,903 4,537
------- ------- ------- ------- ------- ------- ------- -------
Operating income.................. 1,258 550 842 3,867 2,280 2,346 6,478 7,258
Interest expense.................. 251 248 261 383 224 238 290 352
Other expense (income), net....... -- -- 166 -- -- -- 39 (12)
------- ------- ------- ------- ------- ------- ------- -------
Income before income taxes........ 1,007 302 415 3,484 2,056 2,108 6,149 6,918
Provision for income taxes........ 98 29 152 1,101 951 975 2,846 3,203
------- ------- ------- ------- ------- ------- ------- -------
Net income........................ $ 909 $ 273 $ 263 $ 2,383 $ 1,105 $ 1,133 $ 3,303 $ 3,715
======= ======= ======= ======= ======= ======= ======= =======
MAR. 31, JUNE 30, SEPT. 30, DEC. 31, MAR. 31, JUNE 30, SEPT. 30, DEC. 31,
1998 1998 1998 1998 1999 1999 1999 1999
-------- -------- --------- -------- -------- -------- --------- --------
AS A PERCENTAGE OF REVENUES:
Revenues.......................... 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Cost of revenues.................. 78.2 86.9 87.9 69.4 79.2 83.6 79.8 78.7
General, administrative and
marketing expenses.............. 13.3 9.8 7.1 13.9 9.5 8.3 6.3 8.2
------- ------- ------- ------- ------- ------- ------- -------
Operating income.................. 8.5 3.4 5.0 16.8 11.3 8.1 13.9 13.1
Interest expense.................. 1.7 1.5 1.5 1.7 1.1 0.8 0.6 0.6
Other expense (income), net....... -- -- 1.0 -- -- -- 0.1 --
------- ------- ------- ------- ------- ------- ------- -------
Income before income taxes........ 6.8 1.9 2.5 15.1 10.2 7.3 13.2 12.5
Provision for income taxes........ 0.7 0.2 0.9 4.8 4.7 3.4 6.1 5.8
------- ------- ------- ------- ------- ------- ------- -------
Net income........................ 6.2% 1.7% 1.6% 10.3% 5.5% 3.9% 7.1% 6.7%
======= ======= ======= ======= ======= ======= ======= =======
EIGHT QUARTERS ENDED DECEMBER 31, 1999
Revenues. Over the eight quarters ended December 31, 1999, our quarterly
revenues increased from $14.7 million to $55.3 million. Our quarterly revenues
have grown in each of the eight quarters ended December 31, 1999 with the
exception of the quarter ended March 31, 1999. We believe that quarterly
operating results may experience seasonal fluctuations in the future. For
instance, quarterly results may fluctuate based on customers' calendar year
budgeting cycles, which may result in a delay in their issuance of work orders.
In addition, our outdoor services may be adversely affected by winter weather
conditions.
Our operating income margin may fluctuate significantly from quarter to
quarter. We may accept low margin projects from customers as a strategy to
establish relationships and subsequently obtain higher
24
28
margin projects from those customers in the future. In addition, we may
experience higher than anticipated costs on fixed-price contracts, and in such
event operating margins would be adversely affected. General, administrative and
marketing expenses in the fourth quarter of 1998 included a provision for
incentive compensation applicable to the last nine months of the year because
operating margins in the second and third quarters had not achieved management's
targets.
LIQUIDITY AND CAPITAL RESOURCES
Prior to 1998, we primarily financed our operations through cash flow from
operations, borrowings of up to $4.5 million from a bank credit line and
periodic advances from our principal common stockholders. In July 1998, we
raised $11.5 million through a private sale of redeemable convertible preferred
stock. Of these proceeds, $4.9 million was used to pay dividends to common
stockholders, $2.6 million was used to pay portions of promissory notes to
stockholders, and the balance of $4.0 million was used to fund our working
capital requirements.
As of December 31, 1999, we had cash of $1.2 million and $3.7 million of
availability under our bank credit facility.
Prior to June 1999, we had a $4.5 million line of credit from a bank. In
June 1999, we entered into a credit agreement with two banks. The agreement
provided us with a $10.0 million revolving credit facility, which was
subsequently increased to $12.5 million in December 1999. This credit facility
is to be used for general corporate purposes including working capital. The
credit facility expires in June 2002, and bears interest at the prime rate plus
0.25%. As of December 31, 1999, the prime rate was 8.5%. The line of credit is
secured by substantially all of our business assets, and is senior to $7.1
million of subordinated indebtedness to our principal common stockholders. As of
December 31, 1999, $8.8 million was outstanding under the credit facility.
Under the terms of the credit facility, we are required to provide the
banks with periodic financial statements and other reports, and we must meet
specified thresholds with respect to profitability and a debt to net worth
ratio. Additionally, covenants in the credit facility limit our ability to make
acquisitions of other businesses in excess of an aggregate of $250,000 in any
calendar year, or sell any assets outside the ordinary course of business. The
covenants also prohibit us from declaring or paying dividends, other than on the
redeemable convertible preferred stock being converted into common stock upon
the closing this offering, and creating liens or incurring additional
indebtedness other than for equipment obtained in the ordinary course of
business. The bank loans are partially guaranteed by our two principal common
stockholders up to a maximum of $1.5 million each.
Cash provided by and used in operations is primarily derived from our
projects in process and changes in working capital. Net cash provided by
operations was $0.0 million in 1999, while net cash used in operations was $3.4
million in 1998. In 1998 and 1999 the Company's primary use of cash was to
finance higher receivables, which have increased as a result of our increased
revenues.
Cash used in investing activities was $0.4 million, $0.9 million, and $2.9
million in 1997, 1998, and 1999, respectively. Investing activities consist
primarily of capital expenditures to support our growth.
Cash provided by financing activities in 1999 was $2.6 million, which was
primarily derived from additional bank loans, offset by payments of $1.6 million
on a subordinated note payable to a stockholder. Cash provided by financing
activities in 1998 was $3.5 million, which was primarily derived from the
proceeds from issuance of redeemable convertible preferred stock totaling $11.5
million, partially offset by dividend payments of $5.1 million and repayments of
$3.8 million on subordinated notes payable to stockholders. Cash used by
financing activities in 1997 was $3.4 million, primarily consisting of payments
to common stockholders while the Company was an S Corporation under the tax
laws.
25
29
We have no material commitments other than obligations under our bank
credit facility, installment obligations related to equipment purchases, leases
for facilities, computer equipment and vehicles, and subordinated notes payable
to stockholders. See Notes 4, 5 and 9 of Notes to Consolidated Financial
Statements. Our future capital requirements will depend upon many factors,
including our potential expansion to additional geographic regions, which will
require that we expend funds for personnel, equipment and facilities in each
region in advance of earning revenue and receiving payments from customers.
The estimates for the periods for which we expect the net proceeds from
this offering and our available cash balances and credit facility to be
sufficient to meet our capital requirements are forward-looking statements that
involve risks and uncertainties as set forth under the caption "Risk Factors" in
this prospectus. Our capital requirements will depend on numerous factors,
including the timing of payments from customers, our ability to accelerate
billings to customers for completed and uncompleted projects, our potential
expansion to additional geographic regions, the resources we dedicate to new
geographic regions and demand for our services in such new regions, and possible
acquisitions of complementary businesses.
We may need to raise additional capital if we expand more rapidly than
initially planned, to respond to customer demands or competitive pressures or to
acquire complementary businesses. If additional funds are raised through the
issuance of equity or convertible debt or preferred securities, the percentage
ownership of our common stockholders will be reduced, our common stockholders
may experience additional dilution and such securities may have rights,
preferences or privileges senior to those of our common stockholders. There can
be no assurance that additional financing will be available or on terms
favorable to us. If adequate funds are not available or are not available on
acceptable terms, our ability to fund our expansion, take advantage of
unanticipated opportunities, expand our suite of services or otherwise respond
to competitive pressures could be significantly limited. Our business may be
harmed by such limitations.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
This discussion contains forward-looking statements that are subject to
risks and uncertainties. Actual results could vary materially as a result of a
number of factors including those set forth in the "Risk Factors" section. The
following discusses our exposure to market risk related to changes in interest
rates, equity prices and foreign currency exchange rates. We do not believe that
our exposure to market risk is material.
As of December 31, 1999, we had cash of $1.2 million. Pending application
of the proceeds of this offering, as described in "Use of Proceeds," we intend
to invest the net proceeds in interest-bearing investment grade securities,
primarily short-term, highly liquid investments with maturities at the date of
purchase of less than 90 days. These investments are subject to interest rate
risk and will decrease in value if market interest rates increase. A
hypothetical increase or decrease in the market interest rates by 10 percent
from the rates in effect on the date of this prospectus would cause the fair
value of these short-term investments to decline by an insignificant amount. We
have the ability to hold these investments until maturity, and therefore we do
not expect the value of these investments to be affected to any significant
degree by the effect of a sudden change in market interest rates. Declines in
interest rates over time will, however, reduce our interest income.
We do not own any investments in publicly traded equity securities.
Therefore, we do not currently have any direct equity price risk.
We do not have any international operations, and we do not enter into
forward exchange contracts or other financial instruments with respect to
foreign currency. Accordingly, we do not have any foreign currency exchange rate
risk.
26
30
RECENT ACCOUNTING PRONOUNCEMENTS
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued Statement of Position 98-1,
"Accounting for the Costs of Computer Software Developed or Obtained for
Internal Use," which requires entities to capitalize certain costs related to
internal-use software once certain criteria have been met. In April 1998, the
same committee issued Statement of Position 98-5, "Reporting on the Costs of
Start-Up Activities". These standards are effective for the first quarter of the
year 1999. The adoption of these standards did not have a material effect on our
consolidated financial statements.
27
31
BUSINESS
OVERVIEW
We are a leading provider of outsourced local telecommunications network
services for established and emerging communications companies, including
competitive local exchange carriers, Internet service providers and carriers'
carriers. Our principal focus is to provide the expertise and resources our
customers need to build and connect their networks to other local and long
distance carriers and individual end users. In our customers' competitive
environment where speed to market is key, our outsourced solution provides the
mission-critical, often scarce resources that our customers need. We have the
technical expertise, local knowledge and highly skilled workforce that enable us
to design, deploy and upgrade local telecommunications networks more quickly and
efficiently than many of our customers could themselves. We provide services 24
hours a day, seven days a week, to ensure the reliability of these networks. Our
largest customers include AT&T, Level 3 Communications, MCI Worldcom, Metromedia
Fiber Network, Network Access Solutions, Network Plus, Nextlink Communications,
Teligent and Winstar Communications. Over the past three years, we have
successfully expanded our operations from the New York City metropolitan area to
other cities, including Baltimore, Boston, Newark, Philadelphia, Stamford and
Washington, D.C. We plan to continue expanding with our customers into other
metropolitan areas.
INDUSTRY BACKGROUND
Growth of the Telecommunications Industry
The Telecommunications Act of 1996 opened the local telephone market to
competition by requiring the incumbent local exchange carriers, or ILECs, to
provide competitive local exchange carriers, or CLECs, with unbundled access to
their local networks. CLECs can now offer local, long distance and data services
to their customers and are focused on providing the high bandwidth that
businesses and consumers are demanding. The telecommunications industry is
growing rapidly and our customers are making large capital investments to build
and expand their networks to satisfy the increasing demand for broadband
Internet access, wireless communications and enhanced data and voice services.
We believe the CLECs' share of the growing local telecommunications market
will increase significantly, resulting in a future CLEC market substantially
larger than today. CLECs are currently racing to build out their networks as
quickly as possible to capture a greater share of this expanding opportunity. By
supplying the last mile connection directly to their customers, CLECs are able
to provide them with the broadband access that they increasingly need. The
challenges of quickly building a complex local network, particularly over the
last mile, require CLECs to allocate their resources efficiently. We believe
this has increasingly led them to outsource network design, deployment, upgrades
and maintenance.
The demand for broadband Internet access and other enhanced data services
is accelerating the adoption of new technologies. High speed fiber networks are
being coupled with broadband wireless technologies to deliver enhanced
telecommunications capabilities and applications to new customers and markets.
According to Dataquest, in February 1999, the market for broadband wireless
access services in North America alone is expected to generate $7.8 billion in
revenue by 2002.
CLECs must continuously upgrade their networks with new technologies and
expand into new geographic regions in order to remain competitive and satisfy
the demand for broadband services. Additionally, new carriers are entering the
market as a result of deregulation and the demand for new services, fueling the
development of new networks. These carriers are deploying new networks and
expanding and upgrading their existing networks and equipment.
28
32
Changes in the Telecommunications Industry
As telecommunications companies, including CLECs and Internet service
providers, deploy their networks, they face significant competition. In order to
differentiate themselves and remain competitive in this new environment, they
are seeking to:
- increase coverage and capacity of their networks to gain market share;
- provide connections over the last mile directly to end-users to supply
high bandwidth connectivity, which enables them to bypass the ILECs,
thereby avoiding the accompanying access fees and the reliance on the
ILECs to provide service and install connections;
- offer services in new geographic markets; and
- introduce other emerging data networking and broadband technologies and
other point-to-multipoint architectures for the provision of high speed
data, Internet access and other broadband services.
The convergence of traditional wireline, wireless and cable services is
also adding complexity to the telecommunications environment as carriers deploy
networks spanning traditional wireless/wireline boundaries to offer these
enhanced services and new technologies.
New Challenges for Telecommunications Companies
Due to this increasingly competitive environment, telecommunications
companies such as CLECs and Internet service providers are focused on satisfying
customer demand for enhanced services, better quality, faster data transmission
and lower prices. The proliferation of CLECs and new technologies has created an
environment where speed to market is a critical component of a CLEC's success.
CLECs are also faced with the challenge of managing increasingly complex
networks and technologies. For example, the ever-increasing demand for broadband
services and capacity requiring the transmission of large amounts of data
creates additional new technological hurdles for companies establishing or
upgrading their networks. In this dynamic environment, customer acquisition and
retention are key determinants of success. We believe this has led carriers to
increasingly prioritize their resources, focusing on revenue generating
activities and outsourcing when they can do so effectively.
We believe the changing environment is also placing significant operational
challenges on CLECs. CLECs must make decisions about which geographic markets to
serve and which services and technologies to offer. Personnel challenges and
process implementations can present cost uncertainties and operational
challenges for carriers to deploy and manage their networks. Additionally,
networks are being deployed with equipment from unrelated vendors, posing system
integration challenges. This situation is exacerbated by consolidation in the
industry, which often entails the integration of distinct networks.
The Need for Outsourcing
We believe that telecommunications companies such as CLECs, Internet
service providers and carriers' carriers are outsourcing network planning,
deployment, upgrading and maintenance to focus on their core businesses and
refine their competitive advantage. In our experience, potential customers who
are seeking outsourcing are looking for service providers who:
- offer responsive, reliable and high quality service;
- offer turnkey solutions;
- have experience designing, installing and maintaining local
telecommunications networks;
- offer services in numerous locations;
- are technology and vendor independent; and
- have sufficient numbers of highly skilled, experienced employees.
29
33
THE LEXENT ADVANTAGE
We provide outsourced local telecommunications network services to CLECs,
Internet service providers and carriers' carriers for the design, deployment,
upgrading and maintenance of their networks. We offer turnkey solutions. We have
expertise installing, upgrading and maintaining equipment from most major
telecommunication equipment manufacturers, including Lucent, Nortel, Marconi,
ADC, Cisco, AccessLan and Tellabs. We are able to manage large scale deployments
for our customers and upgrade their growing networks as usage increases and
customers are added. We also provide ongoing maintenance and emergency
restoration services 24 hours a day, seven days a week to ensure the reliability
of our customers' networks. Our program management process enables us to meet
our customers' needs on time and without compromising quality.
Experience and Reputation. Since the late 1980s, we have provided critical
services to local telecommunications providers in the New York metropolitan
area. We installed a significant portion of the initial fiber optic networks in
New York City for MCI Worldcom. During the same period, we provided similar
services to AT&T. We continue to provide services to those customers today for
the daily upgrading and maintenance of their growing networks. The reputation we
have developed by providing high quality services has enabled us to obtain
significant additional business from other telecommunications companies.
Turnkey Solutions. The end-to-end, or turnkey, approach that we offer
allows our customers to engage a single responsible party who is accountable for
designing, deploying, upgrading and maintaining their networks. We believe our
customers value the continuity of service provided by having the same people who
designed, engineered and installed their network continue to upgrade and
maintain this growing network on a daily basis. We provide our customers with a
primary point of accountability and reduce the inefficiencies associated with
coordinating multiple vendors. By eliminating the need for our customer to
assemble, train and retain network deployment and maintenance staff, we are able
to speed up the deployment of the customer's network and allow the customer to
focus its resources on revenue generating activities, such as customer
activations and retention.
Focus on Local Networks and the Last Mile. Our primary focus is to enable
our customers to build and connect their networks to other local and long
distance carriers and individual end users. We believe a major challenge facing
our customers is providing a high bandwidth, last mile connection to end users.
The operational experience of our management team, engineers and technicians has
provided us with an understanding of what it takes to build and operate local
telecommunications networks and complete the high bandwidth last mile. Our
senior management team averages 15 years of telecommunications industry
experience.
Single Vendor in Multiple Markets. We strive to provide responsive,
reliable and consistently high quality services in each market where we operate.
We provide standard designs, installations, testing procedures and recordkeeping
so that our customers can expect to receive uniformly high standards of service
in all of their locations. We provide our customers with the opportunity to deal
with a single vendor in multiple markets and assure them that the quality of the
services provided will be consistent across all markets. We believe our single
source solution is an important feature of our services as we expand to new
markets.
Technology and Vendor Independence. Our technology and vendor independence
is an important component of our ability to meet and exceed customer
expectations. We have experience in all major telecommunications network
technologies, including fixed wireless, DSL and dense wavelength division
multiplexing systems. We install and maintain equipment from most major
telecommunications equipment manufacturers, including Lucent, Nortel, Marconi,
ADC, Cisco, AccessLan and Tellabs, and we have not aligned ourselves with
products of any particular vendor.
Depth and Scale. Our principal asset is our workforce of over 840 people,
including more than 755 engineers and highly trained technicians. Our
technological expertise and industry knowledge have enabled us to form and
maintain strong customer relationships with both established telecommunications
30
34
companies, such as MCI Worldcom and AT&T, and newer market entrants. In 1999, we
provided services to more than 70 telecommunications companies out of our 16
facilities in cities from Boston to Washington, D.C., ranging in scope from
multi-year design and deployment contracts to emergency restoration services.
STRATEGY
Our objective is to be the leading provider of outsourced local
telecommunications network services in major metropolitan markets for CLECs,
Internet service providers and carriers' carriers. The key elements of our
strategy are to:
Exploit the Rapidly Growing Demand for Broadband Internet Access and
Wireless Communications. The demand for high bandwidth connections to the
Internet is tremendous and is expected to increase dramatically in the next 10
years. According to International Data Corporation, the number of Internet users
worldwide is expected to increase from 196.1 million in 1999 to 502.4 million in
2003 and the market for fixed wireless technologies for voice and data/Internet
access services for U.S. businesses is expected to grow from $309.3 million in
1999 to $5.2 billion in 2003. We believe that our customers will increasingly
turn to us for the design, deployment, upgrading and maintenance of their
networks as these markets grow. Also, according to Vertical Systems Group,
approximately 76% of businesses are within one mile of an existing fiber optic
network. Our ability to design, deploy, upgrade and maintain the last mile
connection has positioned us to capitalize on our customers' goal to complete
and enhance these connections to end users.
Grow Our Base of Leading Customers by Focusing on Customer Satisfaction and
Increasing Their Speed to Market. Our customers depend on us to quickly and
efficiently design, deploy, upgrade and maintain network assets critical to the
success of their businesses. To justify this reliance, we must consistently
provide our customers with responsive, reliable and high quality service. We are
committed to meeting the needs of our customers and strive to exceed their
expectations in quality and speed to market. We believe we have been successful
in developing customer loyalty and trust because of our high standards and
responsiveness and the fact that a majority of our customers give us repeat
business.
Pursue Client-Driven Geographic Expansion in Major Metropolitan Areas. We
have expanded our geographic presence with some of our key customers as they
have grown their networks. This has allowed us to enter new markets with a
customer base already in place. We believe that the major metropolitan areas in
the U.S. represent a significant opportunity for future growth for us as CLECs,
Internet service providers and carriers' carriers continue to expand and upgrade
their networks. We intend to expand our service area on a city by city basis to
satisfy the demands of our growing customers. As we penetrate these new markets,
we expect to continue to capitalize on opportunities created by new market
entrants as well as the expansion and maintenance of networks for existing
customers. We may also expand by pursuing acquisitions that will supplement our
technical expertise, allow us to acquire additional human resources or strategic
customer relationships or expand our presence in key geographic markets where we
could more effectively complete a project or gain access to new contracts.
Create New Revenue Streams by Expanding Our Services and Pursuing
Cross-Selling Opportunities. We are constantly searching for new ways to serve
our customers. For example, we have developed and are testing a web-based
workflow and asset management software system which will enable us to process
orders and maintain online records of all work performed at our customers'
facilities. Expanding our services provides new channels for revenues and the
ability to cross-sell our suite of services to existing customers and offer a
broader array of services to new customers. We often utilize our design and
engineering services to establish relationships with customers as soon as a
project is conceived. Based on these relationships, we pursue opportunities for
program management and network deployment. Once a network is deployed, we offer
ongoing network upgrade and maintenance services. Our experience with emerging
technologies also offers opportunities for network upgrades and deployment of a
carrier's next generation network. As technologies continue to evolve and
networks become more complex, we will continue to broaden our services to meet
the changing needs of our customers.
31
35
Attract, Motivate and Retain a Highly Specialized Workforce Capable of
Remaining at the Forefront of Emerging Technologies. We believe that our future
success will depend on our continued ability to attract, retain, integrate and
motivate qualified personnel, and upon the continued service of our senior
management and key technical personnel. Our workforce has extensive experience
working with various leading edge technologies and equipment from numerous
manufacturers. We intend to continue to attract and retain highly skilled and
experienced professionals by offering technical training opportunities, bonus
opportunities and competitive salaries and benefits.
OUR SERVICES
We provide complete local telecommunications network solutions to CLECs,
Internet service providers and carriers' carriers, from the design and
engineering phases, through deployment and ongoing network upgrading and
maintenance services on a 24 hour a day, seven day a week basis.
Design, Engineering and Program Management
Design and Engineering. Our engineers discuss targeted coverage areas with
the customer and design route maps for fiber optic and fixed wireless backbone
and fiber rings to suit their needs and minimize delays due to limited right of
way or conduit access. Because of our knowledge of other projects in the areas
where we operate and our familiarity with the conduits in the streets and
entrances into buildings where cable may be placed, we are often able to avoid
disruptions or delays in installations by designing networks to avoid known or
potential problem areas.
We also design layouts for facilities within central offices and other
network locations, which include equipment configurations, power distribution
systems and cable routes throughout building riser systems. We also develop
recordkeeping and maintenance procedures. Our understanding of the underlying
technologies and the equipment to be installed enables us to provide the most
efficient designs for our customers.
Program Management. Our program managers are responsible for managing all
aspects of the relationship with our customers. Program managers oversee the
total scope of services we provide, including supervising and coordinating the
engineering and design process, securing building and zoning permits, managing
multiple vendors and documenting the entire process upon completion. The program
manager provides the customer with a single point of contact in order to ensure
that the customer's needs are being met.
Network Deployment Services
We believe our success is largely based on our ability to be a single
source provider of vertically integrated services that have traditionally been
offered separately by multiple vendors coordinated by a carrier's internal
deployment staff. We provide a wide range of services for the deployment of
telecommunications networks that allow for broadband connectivity.
We install fiber backbone, local SONET rings, dense wave division
multiplexing systems, fixed wireless systems, digital subscriber line and
digital loop carrier equipment, digital cross connect systems, routers, power
distribution systems and telemetry monitoring systems and other technologies. We
also provide daily circuit testing of DS0, DS1 and DS3 services provided by the
ILECs for our customers. We have the expertise to install equipment from most
major telecommunications equipment vendors. We also set up the interconnections
between CLECs, long distance carriers and ILECs, which allow telecommunications
traffic to be exchanged between their networks.
Network Upgrade and Maintenance Services
We provide day-to-day upgrade and maintenance services to our customers. As
network usage increases, we install additional access lines and other
telecommunications and electrical equipment to handle the additional capacity.
We also upgrade equipment and reconfigure the network as the technology
32
36
changes or improves. We have technicians based at our major customers' premises
to constantly monitor any service issues that may arise and perform routine
maintenance. Our technicians are available 24 hours a day, seven days a week to
handle any emergency repairs, such as fiber cuts or equipment problems, while
preventing or minimizing any service disruptions. Our services allow our
customers to maintain the reliability of their networks without building a large
workforce in all of their locations to handle day-to-day problems.
CUSTOMERS
We provide network design, deployment, upgrade and maintenance services
primarily to CLECs, Internet service providers and carriers' carriers. Set forth
below is a list of our largest customers during 1999:
AT&T
Level 3 Communications
MCI Worldcom
Metromedia Fiber Network
Network Access Solutions
Network Plus
Nextlink Communications
Teligent
Winstar Communications
SALES AND MARKETING
We market and sell our services primarily through the efforts of our senior
management and the program managers responsible for a particular account. To
date, we have secured most of our new sales leads and new contracts by expanding
relationships with existing customers and through referrals. Our program
managers serve as our customers' advocates within Lexent and are uniquely
positioned to cultivate additional business opportunities.
Our marketing strategy will focus on telecommunications companies,
including CLECs, Internet service providers and carriers' carriers, and will
reinforce to our target market that Lexent represents a complete local solution
for their multi-city outsourcing needs, combining technical expertise with
responsive, reliable and high quality service. We plan to implement this
campaign through the use of selective advertising and promotional strategies,
including the development of a web-based customer resource center.
EMPLOYEES
As of December 31, 1999, we had 841 employees, including 756 employees
working directly on projects, 47 employees providing supervision and support to
employees working directly on projects and 38 employees performing general and
administrative work. Approximately 650 of our employees are represented by a
labor union, the International Brotherhood of Electrical Workers or IBEW. We
have not experienced any work stoppages in the past 25 years and we believe that
our relationships with our employees and union representatives are excellent.
Recruiting. Our primary hiring sources for our engineers include employee
referrals, print advertising and direct recruiting. We attract and retain
employees by offering technical training opportunities, bonus opportunities, and
competitive salaries and benefits. We hire our unionized employees through local
chapters of the IBEW. In certain cases, we are able to sponsor qualified
technical personnel for union admission.
Training and Career Development. We believe that our continuous focus on
training and career development helps us to retain our employees. Employees
participate in ongoing educational programs, many of which are internally
developed, to enhance their technical and management skills through classroom
and field training. Manufacturers of telecommunications equipment also sponsor
training programs covering the installation and maintenance of their equipment,
which our employees regularly
33
37
attend. We also provide opportunities for promotion and mobility within Lexent
that we believe are key components of employee retention.
We believe our employee training, development and advancement structure
better aligns the interests of our employees with our interests and creates a
cooperative, entrepreneurial atmosphere and shared vision. We are dedicated to
maintaining an innovative, creative and empowering environment where we work as
a team to exceed the expectations of our customers and provide our employees
with personal and professional growth opportunities.
COMPETITION
Our market is highly competitive and fragmented and is served by numerous
vendors. Our primary competitors are often the internal departments of our
carrier customers as well as numerous companies which are able to provide
certain components of the package of services we offer. We compete with other
independent vendors and telecommunications equipment manufacturers in most of
the markets in which we operate, several of which are large companies and some
of which have greater financial, technical and marketing resources than we have.
In addition, there are relatively few barriers to entry into the markets in
which we operate and, as a result, any organization with adequate financial
resources and access to technical expertise and personnel may become our
competitor. We may also face competition from the in-house service organizations
of our existing or prospective customers, which employ personnel who perform
some of the same types of services we provide. Although a significant portion of
these services is currently outsourced, there can be no assurance that our
existing or prospective customers will continue to outsource their network
design, deployment, upgrade and maintenance services in the future.
We believe the principal competitive factors in our market include quality
and responsiveness of service, industry experience, reputation, the ability to
deliver results on time and competitive pricing. In addition, expertise in new
and evolving technologies, such as broadband fixed wireless, has become
increasingly important. We believe that we can compete effectively on the basis
of our experience and reputation in the industry, our knowledge of emerging
technologies, as well as equipment from multiple vendors, and our highly trained
workforce.
FACILITIES
We lease space at 16 separate locations throughout Maryland, Massachusetts,
New Jersey, New York and Pennsylvania. Of these locations, 2 are leased spaces
owned by entities affiliated with certain stockholders of our company. Our
principal executive offices are located in approximately 20,000 square feet of
office space at Three New York Plaza in New York, New York. The lease for this
office space expires in May 2004.
LEGAL PROCEEDINGS
From time to time, we may become involved in various lawsuits and legal
proceedings which arise in the ordinary course of business. In addition, in
August 1999 a former employee filed a charge of employment discrimination
against us with the New York State Division of Human Rights and the Equal
Employment Opportunity Commission and has been granted a right to sue in federal
court. If suit is brought, our management is prepared to defend this claim
vigorously and believes that resolution of this claim will not have a material
adverse effect on our financial position or results of operations. However,
litigation is subject to inherent uncertainties, and an adverse result in this
or other matters may arise from time to time that may harm our business.
34
38
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
Our directors and executive officers are as follows:
NAME AGE POSITION
- ---- --- --------
Hugh J. O'Kane, Jr.(1)............ 49 Chairman of the Board
Alf T. Hansen..................... 57 President, Chief Executive Officer and Director
Kevin M. O'Kane................... 47 Vice Chairman and Chief Operating Officer
Jonathan H. Stern................. 55 Executive Vice President and Chief Financial Officer
Joseph Haines..................... 38 Executive Vice President, Operations
Victor P. DeJoy................... 31 Executive Vice President, Engineering
Rif K. Haffar..................... 44 Executive Vice President, Marketing and Business
Development
Walter C. Teagle III.............. 50 Executive Vice President and Director
Peter O. Crisp(2)................. 67 Director
Thomas W. Hallagan(1)(2).......... 38 Director
L. White Matthews(2).............. 54 Director
Richard W. Smith(1)............... 47 Director
- ---------------
(1) Member of Compensation Committee
(2) Member of Audit Committee
Hugh J. O'Kane, Jr. has approximately 14 years experience in the
telecommunications industry and has been Chairman of the Board of Directors
since inception. From inception to February 2000, he also served as our
President and Chief Executive Officer. Prior to our founding, Mr. O'Kane held
various positions in our predecessor company, most recently as its President,
since joining his family's business in 1973. Mr. O'Kane holds a BS in finance
from Boston College.
Alf T. Hansen has approximately 33 years experience in the
telecommunications industry and has been our President and Chief Executive
Officer and a Director since February 2000. Prior to joining our company, Mr.
Hansen was VP Operations at AT&T Local Services since August 1998. Before that
he held various positions at Teleport Communications Group, or TCG, serving as
Senior Vice President -- Transition and Network Officer responsible for TCG's
merger with AT&T from January 1998 to August 1998, Senior Vice
President -- Emerging Markets from October 1997 to January 1998, Senior Vice
President -- National Operations from February 1993 through October 1997 and
Vice President -- National Operations from March 1989 through January 1993.
Prior to joining TCG, Mr. Hansen worked for AT&T for 22 years, where he had
assignments in Operations, Engineering, Sales and Public Relations.
Kevin M. O'Kane has approximately 14 years experience in the
telecommunications industry and has been our Chief Operating Officer and a
Director since our inception. In February 2000, he was appointed Vice Chairman
of our Board of Directors. He also serves as Secretary and Assistant Treasurer
of our company. Prior to our founding, Mr. O'Kane held various positions in our
predecessor company, most recently as its Vice President, since joining his
family's business in 1976. Mr. O'Kane holds a BS in accounting from Boston
College.
Jonathan H. Stern has approximately 18 years experience in the
telecommunications industry and has been Executive Vice President and Chief
Financial Officer since September 1998. Prior to joining our company, he served
as Vice President and Controller of International Specialty Products Inc., a
NYSE-listed chemical manufacturer since 1990. Prior to that, he was Vice
President and Controller of Western Union Corp., a telecommunications provider.
Mr. Stern holds a BA in economics from Brooklyn College and an MBA in finance
from New York University, and he is also a CPA.
35
39
Joseph Haines has approximately 17 years experience in the
telecommunications industry and has been the Executive Vice President of our
company in charge of network deployment, upgrading and maintenance services
since December 1999. Prior to joining our company, he served as Senior Vice
President of Engineering and Design at Network Plus Corp. since July 1998. From
1992 through July 1998, Mr. Haines held various positions with TCG, most
recently as its Regional Vice President of Operations.
Victor P. DeJoy has approximately nine years experience in the
telecommunications industry and has been the Executive Vice President of our
company in charge of design, engineering and program management services, since
December 1999. Prior to joining our company, he served as the Northeastern
Regional Vice President of Engineering and Operations at Nextlink Communications
since March 1998. From May 1992 through March 1998, Mr. DeJoy held various
positions with TCG, most recently as its Vice President of National Provisioning
Center. Mr. DeJoy holds a BS in Electrical Engineering from Rutgers College of
Engineering.
Rif K. Haffar has approximately 10 years experience in the
telecommunications industry and has been the Executive Vice President for
Marketing and Business Development of our company since January 2000. Prior to
joining our company, he served as Winstar Communications Inc.'s Senior Vice
President of the Partnership Management Organization since October 1998 and
Senior Vice President of Engineering and Operations from June 1996 to September
1998. Prior to joining Winstar, Mr. Haffar was Senior Vice President of Product
Development and Vice President of Operations with GST Telecom. Mr. Haffar holds
a BS and an MBA from Portland State University.
Walter C. Teagle III has approximately four years experience in the
telecommunications industry and has been a Director since September 1998 and has
served as an Executive Vice President since February 2000. From June 1999
through January 2000, Mr. Teagle was the President of our subsidiary National
Network Technologies, LLC. Prior to joining our company, Mr. Teagle was the
President and Chief Executive Officer of Metro Design Systems Inc., an
engineering and design firm which was acquired by us in September 1999. Mr.
Teagle also serves as a Director of the First of Long Island Corporation. Mr.
Teagle holds a BS in economics from the University of Maryland and an MBA in
finance from the University of Pennsylvania Wharton School.
Peter O. Crisp has been a Director since February 2000. Mr. Crisp was a
general partner of Venrock Associates, a venture capital investment firm, for
more than five years until his retirement in September 1997. He has been vice
chairman of Rockefeller Financial Services, Inc. since December 1997. Mr. Crisp
is also a director of American Superconductor Corporation, Evans & Sutherland
Computer Corporation, United States Trust Corporation, Thermo Electron
Corporation and several private companies. Mr. Crisp holds a BA from Yale
University and an MBA from the Harvard Graduate School of Business.
Thomas W. Hallagan has been a Director since July 1998. Since 1996, he has
served as a Managing Director of Abbott Capital Management and a general partner
of Abbott Capital 1330 Investors I, L.P. and Abbott Capital 1330 Investors II,
L.P., private equity limited partnerships. From 1991 to 1996, Mr. Hallagan was
employed by Aetna Investments. Prior to that, he was employed at Prudential
Capital Corporation and he worked for Deloitte Haskins & Sells. Mr. Hallagan is
a director of several private companies. He holds a BA in mathematics from
Colgate University, an MBA in finance and an MS in accounting from New York
University.
L. White Matthews has been a Director since September 1998. He has served
as Executive Vice President and Chief Financial Officer of Ecolab Inc., a global
developer of cleaning and sanitation products and services, since June 1999.
Prior to that, he held various positions with Union Pacific Corporation, most
recently, as its Chief Financial Officer. Mr. Matthews holds a BS from
Hampton-Sydney College and an MBA from the University of Virginia Darden School
of Business and General Management.
Richard W. Smith has been a Director since July 1998. He is an individual
general partner of the general partners of Allegra Capital Partners IV, L.P.,
Allegra Capital Partners III L.P., Lawrence, Tyrrell,
36
40
Ortale & Smith II, L.P. and Lawrence, Tyrrell, Ortale & Smith, L.P., each a
venture capital investment firm. He is also Chairman of both Ixnet, Inc. and IPC
Communications, Inc. He is also a director of several private companies. Mr.
Smith co-authored the book Treasury Management: A Practitioner's Hand-Book. He
holds a BA from Harvard University.
Hugh J. O'Kane, Jr., the Chairman of our Board, and Kevin M. O'Kane, the
Vice Chairman of our Board and our Chief Operating Officer, are brothers.
COMMITTEES OF THE BOARD OF DIRECTORS
Our board of directors established an audit committee in January 1999. This
committee currently consists of Messrs. Matthews, Crisp and Hallagan. The audit
committee makes recommendations to the board of directors regarding the
selection of independent auditors, reviews the results and scope of the audit
and other services provided by our independent auditors and reviews and
evaluates our audit and control functions.
Our board of directors established a compensation committee in January
1999. This committee currently consists of Messrs. Hugh O'Kane, Hallagan and
Smith. The compensation committee reviews and recommends to the board of
directors the salaries, incentive compensation and benefits of our officers and
employees and administers our stock option plan and employee benefit plans.
COMPENSATION OF DIRECTORS
Prior to February 2000, each director who was not also an employee or an
affiliate of a principal stockholder of our company, was eligible to receive
options to purchase shares of our common stock under our stock option plan and
cash remuneration for specific actions they performed on our behalf. Each such
director received a fee of $1,500 per quarter for each quarter such director was
a member of the board. In addition, each such member received $750 for each
board meeting such member attended in person and $500 for each attended meeting
of a committee on which such member served. We also agreed to provide these
members a $1,000 per day fee in the event we imposed upon these members specific
advisory responsibilities outside the scope of the normal responsibilities of a
member of the board of directors and $500 for each board meeting attended
telephonically.
After February 2000, in addition to the cash remuneration described above,
these directors will receive options to purchase shares of common stock under
our stock option plan for each year such director is a member of our board and
options to purchase shares upon such director's initial election to our board.
The amount of each of these grants will be determined by the board or appointed
committee or committees on the date of grant. See "Employee Benefits
Plans -- Stock Option Plan -- Grants to Outside Directors."
During the fiscal year ended December 31, 1999, Messrs. Matthews and Teagle
were the only members of the board of directors eligible for any compensation
from our company. Effective June 1999, Mr. Teagle became an employee of our
company and is no longer eligible to receive compensation as a director. Upon
joining the board, Mr. Matthews received options to purchase 50,000 shares of
our common stock under our stock option plan. In total, Messrs. Matthews and
Teagle received cash fees of $10,000 and $8,250 from our company during fiscal
1999, respectively. None of this amount was in exchange for any advisory
responsibilities outside the scope of the normal responsibilities of a member of
the board of directors.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Prior to January 1999, all compensation decisions relating to our executive
officers were made solely by our board of directors. Upon formation of our
compensation committee and through December 31, 1999, the compensation committee
made recommendations regarding the compensation of our executive officers. Mr.
Hugh O'Kane, our Chairman and former President and Chief Executive Officer, has
been a member of the compensation committee since its formation. In addition,
Mr. Smith is a general partner of the general partner of each of the funds
affiliated with Allegra Capital Partners and Mr. Hallagan is a general partner
of Abbott Capital 1330 Investors I, L.P., and each may be deemed to have a
material interest in the matters described under "Certain Relationships and
Related Transactions."
37
41
EXECUTIVE COMPENSATION
The following table summarizes the compensation for services rendered to us
during 1999 by our Chief Executive Officer and each of our other executive
officers who earned more than $100,000 in salary and bonus during the last
fiscal year. These individuals are referred to as the named executive officers.
The compensation described in this table does not include medical or other
benefits that are available generally to all of our salaried employees or
certain perquisites or other personal benefits received that do not exceed the
lesser of $50,000 or 10% of any such officer's salary and bonus.
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
--------------------------------------------------
LONG-TERM
COMPENSATION
AWARDS
OTHER ANNUAL SECURITIES ALL OTHER
COMPENSATION UNDERLYING COMPENSATION
NAME AND PRINCIPAL POSITION SALARY($) BONUS($) ($)(1) OPTIONS(#) ($)
- --------------------------- --------- -------- ------------ ------------ ------------
Hugh J. O'Kane, Jr..................... 265,000 400,000 4,800 -- --
Chairman, President and Chief
Executive Officer
Kevin M. O'Kane........................ 265,000 400,000 4,800 -- --
Chief Operating Officer
Jonathan H. Stern...................... 205,100 50,000 4,800 -- --
Executive Vice President and Chief
Financial Officer
- ---------------
(1) Compensation in this column reflects contributions made by us to our 401(k)
plan on behalf of each of the named executive officers.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
The following table sets forth, with respect to each of the named executive
officers, information regarding the number and value of securities underlying
unexercised options held by the named executive officers as of December 31,
1999. None of our named executive officers exercised options in 1999.
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS AT
AT FISCAL YEAR-END(#) FISCAL YEAR-END($)
------------------------------ ------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---- ----------- ------------- ----------- -------------
Hugh J. O'Kane, Jr................... -- -- -- --
Kevin M. O'Kane...................... -- -- -- --
Jonathan H. Stern.................... 73,333 146,667
In the table above, the value of unexercised in-the-money options is based
on the difference between the initial public offering price per share of
$ and the exercise price. The options granted to Mr. Stern were granted
under our stock option plan. These options vested as to the first 25% on the
first anniversary of the grant date and, as to the remaining portion, will vest
in equal monthly installments for the 36 months thereafter. Mr. Stern's options
were granted at an exercise price equal to the fair market value of our common
stock, as determined by the board of directors on the date of grant.
EMPLOYMENT ARRANGEMENTS
In July 1998, we entered into substantially similar employment agreements
with Hugh O'Kane and Kevin O'Kane. Under such agreements, Hugh O'Kane agreed to
initially serve as our President and Chief Operating Officer and Kevin O'Kane
agreed to initially serve as our Executive Vice President, and, in each
38
42
such case in such other capacity as requested by the board of directors through
July 2003. Each agreement shall be automatically renewed for successive one year
periods until terminated by either party. Pursuant to the agreements, both
employees are entitled to receive such salary and bonus as determined by the
board of directors which were initially set at $265,000 and $250,000, for each
respectively. In February 2000, these agreements were amended to provide each
individual an annual salary of $265,000 and an annual bonus of $300,000. In
connection with these amendments, each individual was granted options to
purchase 40,000 shares of common stock at an exercise price of $11.00 per share.
In the event either individual is terminated without cause, such individual is
entitled to receive severance payments equal to 100% of his base salary through
the end of his employment term.
In August 1998, we entered into an employment agreement with Mr. Stern to
which he agreed to serve as our Chief Financial Officer. Under this agreement,
Mr. Stern is paid base compensation in an amount not less than $205,100 per year
and a bonus of at least $50,000, subject to the achievement of targeted
objectives. In February 2000, the agreement was amended to provide Mr. Stern a
bonus of at least 40% of base salary in the event we achieve targeted
performance standards. Under his employment agreement, Mr. Stern received
options to purchase 220,000 shares of our common stock. If Mr. Stern's
employment is terminated without cause following a change of control of our
company, 100% of Mr. Stern's options are to become exercisable. In the event Mr.
Stern is terminated without cause, he is entitled to receive severance payments
equal to 100% of his base salary and continuation of benefits for six months.
In December 1999, we entered into substantially similar employment
agreements with each of Messrs. Haines, DeJoy and Haffar in which each agreed to
serve as an Executive Vice President through December 2003, December 2003 and
January 2004, respectively. In addition, under each of their agreements, Messrs.
Haines and DeJoy agreed to serve as presidents of our two subsidiaries. All such
agreements may be extended according to their terms. Under these agreements,
Messrs. Haines, DeJoy and Haffar are each paid compensation in amounts not less
than $240,000 per year and, in the event we achieve targeted performance
standards, are each entitled to receive bonuses of at least 40% of their base
salary. In addition, Messrs. Haines, DeJoy and Haffar received options to
purchase 350,000, 350,000 and 250,000 shares, respectively, of our common stock
at an exercise price of $10.00 per share upon execution of their respective
agreements. These options vested as to the first 100,000, 100,000 and 62,500
shares, respectively, on the date of grant to each employee and as to the
balance in equal monthly installments over the 36 months after the first
anniversary of the date of grant. Also, these individuals are eligible to
receive options to purchase at least 15,000, 15,000 and 10,000 shares,
respectively, of common stock each year at an exercise price equal to the fair
market value of our common stock on the date of grant. In the event any of these
employees are terminated without cause or terminates his employment for good
reason under the agreements, such employee is entitled to severance payments
equal to 100% of his base salary for varying periods up to but not exceeding 18
months.
In January 2000, we entered into an employment agreement with Mr. Hansen to
which Mr. Hansen agreed to serve as our President and Chief Executive Officer
through February 2003. Such agreement may be extended according to its terms.
Under the agreement, Mr. Hansen is paid compensation in an amount not less than
$300,000 per year and, in the event we achieve targeted performance standards,
is entitled to receive a bonus up to 100% of his base salary. In addition, upon
signing his employment agreement Mr. Hansen received options to purchase 830,000
shares of common stock at an exercise price of $10.00 per share. These options
vested as to the first 315,416 on the date of grant, and as to the balance in
equal monthly installments for the 24 months after the first anniversary of the
date of grant. Also, in the event the price of our common stock reaches certain
threshold levels, he is eligible to receive options to purchase at least 200,000
shares of common stock at the fair market value of our common stock on the date
of grant each year for the first two years of his employment term. Further, Mr.
Hansen, in the first 90 days of his employment with our company, can elect to
purchase up to 215,000 shares of our common stock at $10.00 per share. In the
event Mr. Hansen is terminated without cause or terminates his employment for
good reason under this agreement, he is entitled to receive severance payments
equal to 100% of his base salary for one year and continuation of benefits for
up to six months. In the event there is a change of
39
43
control of our company, we have agreed to accelerate the vesting of 100% of Mr.
Hansen's options and give Mr. Hansen the opportunity to resign from our company,
and have such resignation be for good reason. If any excise tax is imposed on
Mr. Hansen by reason of any of the payments or vesting made on a change of
control, we have agreed to gross up such payments to make Mr. Hansen whole.
EMPLOYEE BENEFIT PLANS
Stock Option Plan
In July 1998, our board of directors and stockholders approved our Stock
Option and Restricted Stock Purchase Plan. This plan was subsequently amended
and restated in February 2000. The purpose of the stock option plan is to
promote the interests of our company and our subsidiaries and the interests of
our stockholders by providing an opportunity to selected employees and officers
of both our company and those of our subsidiaries and to other persons providing
services to us to purchase our common stock. By encouraging such stock
ownership, we seek to attract, retain and motivate our employees and other
persons and to encourage those employees and other persons to devote their best
efforts to our business and financial success. The following summary describes
the principal features of the stock option plan as this plan has been amended
and restated and is qualified in its entirety by reference to the specific
provisions of the amended and restated stock option plan, which is filed as an
exhibit to the registration statement of which this prospectus forms a part.
Shares and Options Subject to the Plan. The plan provides for the grant of
options or awards to purchase an aggregate 5,800,000 shares of our common stock,
either in the form of incentive stock options intended to meet the requirements
of Section 422 of the Code, as amended, or non-qualified stock options or
restricted stock purchase awards. The plan includes provisions for adjustment of
the number of shares of common stock available for grant or award thereunder and
in the number of shares of common stock underlying outstanding options in the
event of any stock splits, stock dividends or other relevant changes in our
capitalization.
Eligibility. Under the plan, employees, including officers, are eligible
to receive grants of either incentive stock options structured to qualify under
Section 422 of the Code, or non-qualified stock options and restricted stock
purchase awards, both of which are not intended to meet the requirements of Code
Section 422. Non-employees are eligible to be granted only non-qualified options
and awards.
Administration. The plan has been administered by our board of directors.
However, the board has the right to appoint one or more committees to administer
the plan. Each administering committee must consist of at least two members of
the board. To the extent that transactions under the plan are intended to
qualify as exempt from Rule 16b-3 of the Exchange Act, the administering
committee as to those transactions will consist of entirely "Non-Employee
Directors" within the meaning of the Exchange Act. To the extent that grants
under the plan are intended to qualify as "performance-based compensation"
within the meaning of the Code, the administering committee as to those grants
must consist of entirely "outside directors" within the meaning of the Code. All
questions of interpretation or application of the stock option plan are
determined by the board of directors or administering committee or committees so
appointed, whose decisions are final and binding upon all participants.
Terms of Options and Awards. Each option or award granted will be
evidenced by a stock option or restricted stock purchase agreement. The board or
appointed committee or committees will fix the term and vesting provisions of
all options granted pursuant to the plan. Options granted under the plan, other
than those granted to outside directors as discussed below, generally vest as to
25% on the first anniversary of the grant date, and, as to the remaining
portion, in equal monthly installments for the 36 months thereafter. These
options generally provide for acceleration of vesting as to at least 50% of the
unexercised portion on a change in control of our company.
The exercise price of incentive stock options may not be less than 100% of
the fair market value of the shares of common stock, as determined by the board
or appointed committee or committees, as the case may be, on the date the option
is granted. In addition, the aggregate fair market value of the shares
40
44
of stock with respect to which incentive stock options are exercisable for the
first time by an optionee during any calendar year shall not exceed $100,000. In
addition, no incentive stock option shall be granted to an optionee who owns
more than 10% of the total combined voting power of all classes of stock of our
company, unless the exercise price is at least 110% of the fair market value of
the shares of common stock and the exercise period does not exceed 5 years.
Restricted stock purchase awards granted under the plan will be in amounts
and at times as determined by the board or appointed committee or committees.
The purchase price, as well as the vesting provisions, of awards will be
determined by the board or committee and the purchase price may be equal to,
less than or more than the fair market value of the shares of common stock to be
awarded.
Grants to Outside Directors. Directors who are not employees of our
company or affiliates of our principal stockholders will receive options under
the plan. Each eligible director will receive options to purchase shares of our
common stock upon such director's initial election to the board and additional
options to purchase shares for each year such director remains a member of the
board of directors. The amount of each of these grants will be determined by the
board or appointed committee or committees on the date of grant provided that no
director may receive options to purchase more than 500,000 shares of our common
stock in any calendar year.
The options granted to these directors will be non-qualified stock options.
Such options will have 10 year terms and will terminate three months following
the date the director ceases to be a director or consultant or 12 months if the
termination is due to death or disability. In the event of our dissolution or
liquidation or change in control, these options will become 100% vested and
exercisable in full.
Term of the Stock Option Plan. The plan will continue in effect until July
2008 unless terminated prior to such date by the board.
401(k) Plan
We have adopted the Vanguard Prototype 401(k) Savings Plan, a defined
contribution plan intended to qualify under Section 401 of the Code. All of our
employees not otherwise subject to collective bargaining agreements are eligible
to participate and may enter the 401(k) Plan as of the first day of any month.
Employees participating in the plan may make pre-tax contributions to the 401(k)
Plan of up to 15% of their eligible earnings, subject to a statutorily
prescribed annual limit. We make annual contributions to the 401(k) Plan in the
amount of 3% of each participant's salary up to the prescribed annual limit. Our
contributions vest annually over the related employee's first five years of
service. Each employee's contributions, our corresponding contributions and any
investment earnings, are generally not taxable to the participants until
withdrawn. Employee contributions are held in trust as required by law.
Individual participants may direct the trustee to invest their accounts in
authorized investment alternatives.
INDEMNIFICATION OF DIRECTORS AND EXECUTIVE OFFICERS AND LIMITATION ON LIABILITY
Our bylaws provide that we shall indemnify our directors, officers and
their agents to the fullest extent permitted by the Delaware General Corporation
Law or DGCL. We are also empowered under our bylaws to purchase insurance on
behalf of any director, officer, employee or agent whether or not we would be
required to indemnify this person. Pursuant to this provision, we have entered
into indemnification agreements with each of our directors and executive
officers.
In addition, our second restated certificate of incorporation to be
effective upon consummation of this offering provides that our directors will
not be personally liable to us or our stockholders for monetary damages for any
breach of fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to us or our
stockholders;
- for acts or omission not in good faith or which involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the DGCL; or
41
45
- for any transaction from which the director derives an improper personal
benefit.
Our second restated certificate of incorporation also provides that if,
after the approval by our stockholders of our second restated certificate of
incorporation, the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of our directors shall be eliminated or limited to the fullest extent permitted
by the DGCL. This provision does not affect a director's responsibilities under
any other law, including the federal securities laws or state or federal
environmental laws.
42
46
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The following is a description of relationships and transactions for the
last three fiscal years to which we have been a party, in which amounts involved
exceed $60,000 and in which any director, executive officer or holder of more
than 5% of our capital stock had or will have a direct or indirect material
interest, other than our compensation arrangements with our directors and named
executive officers that are described under "Management."
On January 1, 1997, Hugh O'Kane Electric Co., Inc., our predecessor
company, repurchased common shares owned by Denis J. O'Kane, a stockholder and
brother of each of Hugh J. O'Kane, Jr., our Chairman, and Kevin M. O'Kane, our
Vice Chairman and Chief Operating Officer. In consideration for the repurchase,
Denis O'Kane was issued a subordinated promissory note in the amount of $10.2
million. The note bears interest at the rate of 6% per year. We made the first
payment on the note on July 23, 1998 in connection with the merger of Hugh
O'Kane Electric Co., Inc. with and into our company. The payment was for $1.5
million plus accrued interest. The remaining balance is payable in 22 quarterly
installments of $0.4 million plus accrued interest with the final payment due
January 1, 2004. As of December 31, 1999, the outstanding principal balance of
this note was $6.7 million.
On July 20, 1998, as an inducement to his execution of the merger agreement
in which Hugh O'Kane Electric Co., Inc. merged with and into our company, we
executed an agreement with Hugh O'Kane Electric Co., Inc. and Denis J. O'Kane.
Under this agreement, we agreed to provide Denis O'Kane with a new automobile
every three years for as long as he remains a stockholder of our company and
lifetime medical, dental and life insurance benefits consistent with his
then-existing coverage. See Note 5 of Notes to Consolidated Financial
Statements.
On July 23, 1998, we sold 5,538,458 shares of Series A redeemable
convertible preferred stock at a purchase price of $2.07639 per share to
entities affiliated with Allegra Capital Partners and Abbott Capital Management,
who each held more than 5% of our outstanding capital stock prior to this
offering. Mr. Smith, a member of our board, is a general partner of the general
partner of each of the funds affiliated with Allegra Capital Partners. Mr.
Hallagan, also a member of our board, is a general partner of Abbott Capital
1330 Investors I, L.P. Upon the closing of this offering, each share of
redeemable convertible preferred stock will automatically convert into 1.1814
shares of common stock. All securities sold or purchased in this transaction
were sold or purchased at prices equal to the fair market value of the
securities, as determined by our board of directors, on the date of issuance.
Holders of shares of our common stock issued in connection with the
conversion of the redeemable convertible preferred stock and in connection with
the merger of our predecessor company with and into our company, may require us
to register such shares at our expense. For a description of such registration
rights, see "Description of Capital Stock -- Registration Rights."
On July 23, 1998, as a finders fee in connection with our redeemable
convertible preferred stock financing, we issued non-qualified options to
purchase 110,000 shares of our common stock under our stock option plan to
Walter C. Teagle III, an Executive Vice President and member of our board of
directors. These options were immediately exercisable by Mr. Teagle. On December
22, 1999, we issued 110,000 shares of common stock to Mr. Teagle in connection
with his exercise of these stock options.
On September 24, 1998, we issued non-qualified options to purchase 50,000
shares of our common stock under our stock option plan to L. White Matthews, a
member of our board of directors. These options vested as to 50% upon the first
anniversary of the grant date and vest in equal monthly installments for the 36
months thereafter. On December 22, 1999, we issued 25,000 shares of common stock
to Mr. Matthews in connection with his exercise of 50% of these stock options.
On June 1, 1999, we issued incentive stock options to purchase 270,000
shares of our common stock under our stock option plan to Mr. Teagle. These
options were issued to Mr. Teagle at the fair market value of our common stock,
as determined by our board of directors, on the date of grant.
43
47
On January 21, 2000, we issued non-qualified options to purchase 25,000
shares of our common stock to Peter O. Crisp, a member of our board of
directors. These options vested as to 50% on the date of grant. The remainder
vests in equal monthly installments for the 24 months after the first
anniversary of the date of grant. In addition, on February 17, 2000, Mr. Crisp
purchased 20,000 shares of our common stock at a purchase price of $10.00 per
share.
On February 11, 2000, Hugh O'Kane, Jr. and Kevin O'Kane entered into an
agreement to grant each the right to vote the shares of the other in the event
of either individual's death. This agreement provides that the right to vote
will remain with the surviving brother for three years or until his death or a
sale of the related shares in a public offering or sale authorized by Rule 144
under the Securities Act.
Mr. Teagle receives a base salary equal to $175,000 per year. In addition,
Mr. Teagle received a bonus of $175,000 for 1999 and will receive a bonus of
$200,000 for 2000.
Mr. Hugh J. O'Kane, Sr., father of Hugh O'Kane, Jr., Kevin O'Kane and Denis
O'Kane, receives $75,000 per year as a pension for his role as founder of our
predecessor company. This payment will be made to Mr. O'Kane's spouse for the
remainder of her life in the event of his death.
Kevin O'Kane is a co-trustee of the Hugh J. O'Kane, Jr. 2000 Grantor
Retained Annuity Trust which holds 1,400,000 shares for the benefit of Hugh
O'Kane's family.
In 1998 and 1999, we purchased services amounting to $0.5 million and $1.4
million, respectively, from Metro Design Systems, Inc., a company which was
owned by Hugh O'Kane, Jr., Kevin O'Kane, Denis O'Kane and Walter Teagle. During
such times, Hugh O'Kane, Jr., Kevin O'Kane and Mr. Teagle were directors of our
company and Hugh O'Kane, Jr. and Kevin O'Kane held more than 5% of our
outstanding capital stock. We believe the costs for the services provided by
Metro Design Systems, Inc. would have been incurred regardless of whether such
services had been purchased from a non-affiliated entity. In September 1999, we
purchased the equipment, business name and goodwill of Metro Design Systems,
Inc. for $0.2 million. The purchase price was paid in cash to Metro Design
Systems, Inc. and we believe the price was equal to the fair market value of the
purchased assets.
From time to time prior to this offering, we have borrowed funds from Hugh
O'Kane, Jr. and Kevin O'Kane to fund our working capital requirements. In
connection with this, we periodically make repayment of such advances. At
December 31, 1999, the amounts we owed to Hugh and Kevin O'Kane collectively
amounted to $0.6 million, of which $0.4 million is subordinated to all senior
debt. Such amounts bear interest at the rate of 6% but there are no formal
repayment terms.
We lease two of our facilities from entities owned by Hugh, Kevin and Denis
O'Kane. Annual rentals for office and warehouse premises at 88-90 White Street
in New York, NY are $0.3 million for calendar years 1998 through 2001, and $0.4
million for calendar year 2002. Annual rentals for office and warehouse premises
in South Plainfield, NJ are $0.1 million for the twelve-month periods April
through March, commencing April 1998 and ending March 2008.
While we were an S corporation, we made cash distributions to stockholders
of approximately $0.2 million in 1997 and $5.1 million in 1998.
Between July 1998 and January 2000, our company signed various employment
agreements with each member of our senior management team. For a description of
such agreements, see "Management -- Employment Arrangements."
44
48
PRINCIPAL STOCKHOLDERS
The following table contains information about the beneficial ownership of
our common stock before and after our initial public offering for:
- each person who beneficially owns more than five percent of the common
stock;
- each of our directors;
- the named executive officers; and
- all directors and executive officers as a group.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or investment
power with respect to securities. Except as indicated by footnote, and subject
to community property laws where applicable, the persons named in the table
below have sole voting and investment power with respect to all shares of common
stock shown as beneficially owned by them. The percentage of beneficial
ownership is based on 22,173,108 shares of common stock outstanding as of
February 17, 2000, as adjusted to reflect the conversion of all outstanding
shares of preferred stock upon the closing of this offering and shares
of common stock outstanding after completion of this offering. Fractional shares
have been rounded to the nearest whole number.
The table assumes no exercise of the underwriters' over-allotment option.
If the underwriters' over-allotment option is exercised in full, we will sell up
to an aggregate of additional shares of our common stock, and up
to shares of common stock will be outstanding after the completion of
this offering.
PERCENTAGE OF SHARES
OUTSTANDING
NUMBER OF SHARES --------------------
BENEFICIALLY BEFORE AFTER
NAME AND ADDRESS OF BENEFICIAL OWNER(1) OWNED OFFERING OFFERING
- --------------------------------------- ---------------- -------- --------
Kevin M. O'Kane(2)........................................ 8,403,692 37.88%
Hugh J. O'Kane, Jr.(3).................................... 7,003,692 31.57
Abbott Capital 1330 Investors I, L.P.(4).................. 4,551,709 20.53
1330 Avenue of the Americas, Suite 2800
New York, New York 10019
Allegra Capital Partners III, L.P.(5)..................... 2,291,373 10.33
515 Madison Avenue -- 29th Floor
New York, New York 10022
Alf T. Hansen(6).......................................... 530,416 2.35
Jonathan H. Stern(7)...................................... 87,083 *
Walter C. Teagle III(8)................................... 245,000 1.10
Peter O. Crisp(9)......................................... 32,500 *
Thomas W. Hallagan(10).................................... 4,551,709 20.53
L. White Matthews(11)..................................... 29,167 *
Richard W. Smith(12)...................................... 2,291,373 10.33
All current directors and executive officers as a group
(12 persons)(13)........................................ 22,037,134 95.96
- ---------------
* represents beneficial ownership of less than 1%.
(1) Unless otherwise indicated, the address for each person or entity named
above is c/o Lexent Inc., Three New York Plaza, New York, New York 10004.
45
49
(2) Includes 12,730 shares subject to options exercisable within 60 days of
February 17, 2000, an aggregate 400,000 shares held in trust for Kevin
O'Kane's children for which Mr. O'Kane is co-trustee and 1,400,000 shares
held in trust for Hugh O'Kane's family for which Mr. O'Kane is co-trustee.
(3) Includes 12,730 shares subject to options exercisable within 60 days of
February 17, 2000, an aggregate 400,000 shares held in trust for Hugh
O'Kane's children for which Mr. O'Kane is co-trustee and 1,400,000 shares
held in trust for Hugh O'Kane's family for which Mr. O'Kane's wife is
co-trustee.
(4) Thomas Hallagan, one of our directors, is a general partner of Abbott
Capital 1330 Investors I, L.P. Mr. Hallagan disclaims beneficial ownership
of the shares held by this entity.
(5) Includes 227,500 shares held by Allegra Capital Partners IV, L.P. Richard
Smith, one of our directors, is a general partner of the general partner of
each of the venture capital funds affiliated with Allegra Capital Partners.
Mr. Smith disclaims beneficial ownership of the shares held by Allegra
Capital Partners III, L.P. and Allegra Capital Partners IV, L.P.
(6) Includes 150,416 shares subject to options exercisable within 60 days of
February 17, 2000 and 215,000 shares subject to purchase by Mr. Hansen
under the terms of his employment agreement.
(7) All shares subject to options exercisable within 60 days of February 17,
2000.
(8) Includes 135,000 shares subject to options exercisable within 60 days of
February 17, 2000.
(9) Includes 12,500 shares subject to options exercisable within 60 days of
February 17, 2000.
(10) All shares held by Abbott Capital 1330 Investors I, L.P. Mr. Hallagan is a
general partner of this venture capital fund affiliated with Abbott Capital
Management and disclaims beneficial ownership of the shares held by this
entity.
(11) Includes 4,167 shares subject to options exercisable within 60 days of
February 17, 2000.
(12) Includes 2,063,873 shares held by Allegra Capital Partners III, L.P. and
227,500 shares held by Allegra Capital Partners IV, L.P. Mr. Smith is a
general partner of the general partner of each of the venture capital funds
affiliated with Allegra Capital Partners and disclaims beneficial ownership
of the shares held by these entities.
(13) Includes 792,126 shares subject to options exercisable within 60 days of
February 17, 2000.
46
50
DESCRIPTION OF CAPITAL STOCK
Immediately prior to the closing of this offering and effective upon the
filing of our second amended and restated certificate of incorporation, our
authorized capital stock will consist of shares of common stock, $0.001 par
value per share, and shares of preferred stock, $0.001 par value per share.
As of February 17, 2000, after giving effect to the conversion of all
outstanding redeemable convertible preferred stock into common stock upon the
closing of this offering, there were outstanding 22,173,108 shares of common
stock held of record by 20 stockholders.
COMMON STOCK
The holders of common stock are entitled to one vote per share on all
matters to be voted on by the stockholders. Subject to preferences that may be
applicable to any outstanding shares of preferred stock, holders of common stock
are entitled to receive ratably such dividends as may be declared by the board
of directors out of funds legally available therefor. In the event of our
liquidation, dissolution or winding down, holders of common stock are entitled
to share ratably in all assets remaining after payment of liabilities and the
liquidation preferences of any outstanding shares of preferred stock. Holders of
common stock have no preemptive, conversion, subscription or other rights. There
are no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are, and all shares of common stock to be
outstanding upon completion of this offering will be, fully paid and
nonassessable.
PREFERRED STOCK
Upon the closing of this offering, all outstanding shares of preferred
stock will be converted into 6,543,083 shares of common stock. See Note 10 of
Notes to Consolidated Financial Statements for a description of the currently
outstanding redeemable convertible preferred stock. Following the conversion,
our restated certificate of incorporation will be amended and restated to delete
all references to these shares of redeemable convertible preferred stock. Under
our second restated certificate of incorporation, the board has the authority,
without further action by stockholders, to issue up to shares of
preferred stock in one or more series and to fix the rights, preferences,
privileges, qualifications and restrictions granted to or imposed upon such
preferred stock, including dividend rights, conversion rights, voting rights,
rights and terms of redemption, liquidation preference and sinking fund terms,
any or all of which may be greater than the rights of the common stock. The
issuance of preferred stock could adversely affect the voting power of holders
of common stock and reduce the likelihood that such holders will receive
dividend payments and payments upon liquidation. The issuance could have the
effect of decreasing the market price of the common stock. The issuance of
preferred stock could have the effect of delaying, deterring or preventing a
change in control of our company. We have no present plans to issue any shares
of preferred stock.
REGISTRATION RIGHTS
After this offering, the holders of 6,615,583 shares of common stock will
be entitled to various rights with respect to the registration of such shares
under the Securities Act due to the Registration Rights Agreement, dated as of
July 23, 1998. Under the terms of this agreement, if we propose to register any
of our securities under the Securities Act, either for our own account or for
the account of other security holders exercising registration rights, the
holders are entitled to notice of the registrations and are entitled, subject to
limitations, to include shares in the registration. Holders representing not
less than one third of the restricted shares then outstanding may require us to
file a registration statement under the Securities Act with respect to their
shares on two occasions, and we are required to use our best efforts to complete
the registration. Further, the holders may require us to register their shares
on Form S-3 when such form
47
51
becomes available to us. Generally, we are required to bear all registration
expenses incurred in connection with any such registrations, other than any
underwriting discounts and selling commissions. These rights are subject to
conditions and limitations, among them, the right of the underwriters of an
offering to limit the number of shares included in a registration. Pursuant to
agreements with the underwriters of this offering, the holders entitled to these
various registration rights have agreed to waive such rights for 180 days
following the date of this prospectus.
ANTI-TAKEOVER MEASURES
Delaware Law
We are governed by the provisions of Section 203 of the DGCL. In general,
Section 203 prohibits a public Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless:
- prior to the business combination our board of directors approved either
the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder; or
- upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, such stockholder owned at least 85%
of our outstanding voting stock at the time such transaction commenced,
excluding for the purpose of determining the number of shares outstanding
those shares owned:
-- by our officers and directors and
-- by employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer; or
- at or subsequent to such time the business combination is approved by our
board of directors and authorized at an annual or special meeting of our
stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of our outstanding voting stock which is not owned by the
interested stockholder.
A "business combination" includes mergers, asset sales or other
transactions resulting in a financial benefit to the stockholder. An "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within three years did own) 15% or more of the corporation's voting stock. The
statute could have the effect of delaying, deferring or preventing a charge in
our control or reducing the price that some investors might be willing to pay in
the future for our common stock.
Charter and Bylaw Provisions
Our second restated certificate of incorporation to be effective upon
consummation of the offering provides that any action required or permitted to
be taken by our stockholders must be effected at a duly called annual or special
meeting of stockholders and may not be effected by any consent in writing. In
addition, our bylaws restrict the ability of our stockholders to call a special
meeting of stockholders. Our second restated certificate of incorporation also
specifies that our board of directors will be classified, the authorized number
of directors may be changed only by resolution of the board of directors and
does not include a provision for cumulative voting for directors. Under
cumulative voting, a minority stockholder holding a sufficient percentage of a
class of shares may be able to ensure the election of one or more directors.
These and other provisions contained in our second restated certificate of
incorporation and
48
52
bylaws could delay or discourage certain types of transactions involving an
actual or potential change in control of us or our management (including
transactions in which stockholders might otherwise receive a premium for their
shares over then current prices) and may limit the ability of stockholders to
remove current management or approve transactions that stockholders may deem to
be in their best interests and, therefore, could adversely affect the price of
our common stock.
THE NASDAQ STOCK MARKET'S NATIONAL MARKET
We have applied to list our common stock on the Nasdaq National Market
under the trading symbol "LXNT."
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is .
49
53
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock, and
we cannot assure you that a significant public market for our common stock will
develop or be sustained after this offering. As described below, no shares
currently outstanding will be available for sale immediately after this offering
due to certain contractual restrictions on resale. Sales of substantial amounts
of our common stock in the public market after the restrictions lapse could
adversely affect the prevailing market price and our ability to raise equity
capital in the future.
Upon completion of this offering, we will have outstanding shares of
common stock, assuming no exercise of the underwriters' over-allotment option
and no exercise of outstanding options or warrants. Of these shares, all of the
shares sold in this offering will be freely tradable and transferable without
restriction under the Securities Act unless purchased by our affiliates.
The remaining shares of common stock held by existing stockholders
are restricted securities. Restricted securities may be sold in the public
market only if registered or if they qualify for an exemption from registration
described below under Rules 144, 144(k) or 701 promulgated under the Securities
Act.
As a result of the lock-up agreements, described below, and the provisions
of Rules 144, 144(k) and 701 described below, these restricted shares will be
available for sale in the public market as follows:
- shares may be sold prior to 180 days from the date of this
prospectus;
- shares will have been held long enough to be sold under Rule 144
or Rule 701 beginning 181 days after the effective date of this offering
which we expect to be ; and
- the remaining shares may be sold under Rule 144 or 144(k) once they have
been held for the required time.
Lock-Up Agreements. Certain of our stockholders and option holders have
agreed not to transfer or dispose of, directly or indirectly, any shares of our
common stock or any securities convertible into or exercisable or exchangeable
for shares of our common stock, for a period of 180 days after the date of this
prospectus. Transfers or dispositions can be made sooner with the prior written
consent of Credit Suisse First Boston Corporation.
Rule 144. In general, under Rule 144, a person who has beneficially owned
restricted securities for at least one year would be entitled to sell within any
three-month period a number of shares that does not exceed the greater of:
- 1% of the number of shares of our common stock then outstanding which
will equal approximately shares immediately after this offering;
or
- the average weekly trading volume of our common stock on the Nasdaq
National Market during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to the sale.
Sales under Rule 144 are also subject to manner-of-sale provisions and
notice requirements and to the availability of current public information about
us.
Rule 144(k). However, a person who is not deemed to have been one of our
affiliates at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years is
entitled to sell such shares without complying with the manner of sale, public
information, volume limitation or notice provisions of Rule 144 discussed above.
Rule 701. In general, under Rule 701, any of our employees, consultants or
advisors who purchases or receives shares from us in connection with a
compensatory stock purchase plan or option plan or other written agreement will
be eligible to resell their shares beginning 90 days after the date of this
prospectus. Non-affiliates will be able to sell their shares subject only to the
manner-of-sale provisions of Rule 144.
50
54
Affiliates will be able to sell their shares without compliance with the holding
period requirements of Rule 144.
Registration Rights. Upon completion of this offering, the holders of
6,615,583 shares of our common stock will be entitled to rights with respect to
the registration of their shares under the Securities Act. See "Description of
Capital Stock -- Registration Rights." Pursuant to agreements with underwriters
of this offering, the holders entitled to registration rights agreed to waive
those rights for 180 days following the date of this prospectus. Except for
shares purchased by affiliates, registration of their shares under the
Securities Act would result in such shares becoming freely tradable without
restriction under the Securities Act immediately upon the effectiveness of the
registration.
Stock Options. Immediately after this offering, we intend to file a
registration statement under the Securities Act covering approximately
shares for sale upon the exercise of outstanding stock options or
shares reserved for future issuance pursuant to our stock option plan. The
registration statement is expected to be filed and become effective as soon as
practicable after the closing of this offering. Accordingly, shares registered
under the registration statement will, subject to Rule 144 volume limitations
applicable to affiliates, be available for sale in the open market beginning 180
days after the effective date of the registration statement of which this
prospectus is a part.
51
55
UNDERWRITING
Under the terms and subject to the conditions contained in the underwriting
agreement dated 2000, we have agreed to sell to the underwriters
named below, for whom Credit Suisse First Boston Corporation, Chase Securities
Inc. and Raymond James & Associates, Inc. are acting as representatives, the
following respective numbers of shares of common stock:
NUMBER
UNDERWRITER OF SHARES
- ----------- ---------
Credit Suisse First Boston Corporation......................
Chase Securities Inc. ......................................
Raymond James & Associates, Inc. ...........................
--------
Total.....................................................
========
The underwriting agreement provides that the underwriters are obligated to
purchase all the shares of common stock in the offering, if any are purchased,
other than those shares covered by the over-allotment option described below.
The underwriting agreement also provides that, if an underwriter defaults, the
purchase commitments of non-defaulting underwriters may be increased or the
offering of common stock may be terminated.
We have granted to the underwriters a 30-day option to purchase on a pro
rata basis up to additional shares from us at the initial public
offering price less the underwriting discounts and commissions. The option may
be exercised only to cover any over-allotments of common stock.
The underwriters propose to offer the shares of common stock initially at
the public offering price on the cover page of this prospectus and to selling
group members at that price less a concession of $ per share. The
underwriters and the selling group members may allow a discount of $ per
share on sales to other broker/dealers. After the initial public offering, the
public offering price and concession and discount to dealers may be changed by
the representatives.
The following table summarizes the compensation and estimated expenses we
will pay.
PER SHARE TOTAL
-------------------------------- --------------------------------
WITHOUT WITH WITHOUT WITH
OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT
-------------- -------------- -------------- --------------
Underwriting discounts and
commissions paid by us............
Expenses payable by us..............
The underwriters have informed us that they do not expect discretionary
sales to exceed 5% of the shares of common stock being offered.
We have agreed that we will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Securities and
Exchange Commission a registration statement under the Securities Act relating
to, any shares of our common stock or securities convertible into or
exchangeable or exercisable for any shares of our common stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of Credit Suisse First Boston
Corporation for a period of 180 days after the date of this prospectus, except
issuances pursuant to the exercise of employee stock options outstanding on the
date hereof.
Our officers and directors and certain other stockholders have agreed that
they will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any shares of our common stock or securities convertible
into or exchangeable or exercisable for any shares of our common stock, enter
into a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of our common stock, whether any such
aforementioned transaction is to be settled by delivery of our common stock or
such other securities, in cash or otherwise, or publicly disclose the intention
to make any such offer, sale, pledge
52
56
or disposition, or to enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of Credit Suisse
First Boston Corporation for a period of 180 days.
The underwriters have reserved for sale, at the initial public offering
price, up to shares of the common stock offered hereby for employees,
directors and certain other persons associated with us who have expressed an
interest in purchasing common stock in the offering. The number of shares of
common stock available for sale to the general public in the offering will be
reduced to the extent these persons purchase the reserved shares. Any reserved
shares not so purchased will be offered by the underwriters to the general
public on the same terms as the other shares.
We have agreed to indemnify the underwriters against liabilities under the
Securities Act, or to contribute to payments which the underwriters may be
required to make in that respect.
We have applied to list our common stock on the Nasdaq National Market
under the symbol "LXNT."
Before this offering, there has been no public market for the common stock.
The initial public offering price was determined by negotiation between the
underwriters and us. The principal factors considered in determining the public
offering price included the following:
- the information set forth in this prospectus;
- the history and the prospects for the industry in which we will compete;
- the ability of our management;
- the prospects for our future earnings;
- the present state of our development and our current financial condition;
- the general condition of the securities markets at the time of this
offering; and
- the recent market prices of, and the demand for, publicly traded common
stock of generally comparable companies.
A pricing committee of our board of directors established the initial public
offering price following such negotiations.
The representatives, on behalf of the underwriters, may engage in
over-allotment, stabilizing transactions, syndicate covering transactions and
penalty bids in accordance with Regulation M under the Exchange Act.
- Over-allotment involves syndicate sales in excess of this offering size,
which creates a syndicate short position.
- Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
- Syndicate covering transactions involve purchases of the common stock in
the open market after the distribution has been completed in order to
cover syndicate short positions.
- Penalty bids permit the representatives to reclaim a selling concession
from a syndicate member when the common stock originally sold by such
syndicate member is purchased in a stabilizing transaction or a syndicate
covering transaction to cover syndicate short positions.
These stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of our common stock to be higher than it would otherwise be
in the absence of these transactions. These transactions may be effected on the
Nasdaq National Market or otherwise and, if commenced, may be discontinued at
any time.
53
57
NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the common stock in Canada is being made only on a
private placement basis exempt from the requirement that we prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of common stock are effected. Accordingly, any resale of the common stock
in Canada must be made in accordance with applicable securities laws, which will
vary depending on the relevant jurisdiction, and which may require resales to be
made in accordance with available statutory exemptions or pursuant to a
discretionary exemption granted by the applicable Canadian securities regulatory
authority. Purchasers are advised to seek legal advice prior to any resale of
the common stock.
REPRESENTATIONS OF PURCHASERS
Each purchaser of common stock in Canada who receives a purchase
confirmation will be deemed to represent to us and the dealer from whom such
purchase confirmation is received that: (i) the purchaser is entitled under
applicable provincial securities laws to purchase such common stock without the
benefit of a prospectus qualified under such securities laws, (ii) where
required by law, the purchaser is purchasing as principal and not as agent, and
(iii) the purchaser has reviewed the text above under "Resale Restrictions."
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the U.S. federal securities laws.
ENFORCEMENT OF LEGAL RIGHTS
All of our directors and officers as well as the experts named herein may
be located outside of Canada and, as a result, it may not be possible for
Canadian purchasers to effect service of process within Canada upon us or these
persons. All or a substantial portion of the assets of our company and these
persons may be located outside of Canada and, as a result, it may not be
possible to satisfy a judgment against our company or these persons in Canada or
to enforce a judgment obtained in Canadian courts against our company or these
persons outside of Canada.
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of common stock to whom the Securities Act (British Columbia)
applies is advised that the purchaser is required to file with the British
Columbia Securities Commission a report within ten days of the sale of any
common stock acquired by such purchaser pursuant to this offering. The report
must be in the form attached to British Columbia Securities Commission Blanket
Order BOR #95/17, a copy of which may be obtained from us. Only one report must
be filed in respect of common stock acquired on the same date and under the same
prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of common stock should consult their own legal and tax
advisors for the tax consequences of an investment in the common stock in their
particular circumstances and for the eligibility of the common stock for
investment by the purchaser under relevant Canadian legislation.
54
58
LEGAL MATTERS
Reboul, MacMurray, Hewitt, Maynard & Kristol will pass upon the validity of
the shares of common stock offered by this prospectus and certain other legal
matters. Simpson Thacher & Bartlett will pass upon certain legal matters for the
underwriters.
EXPERTS
The consolidated financial statements of Lexent Inc. and its subsidiaries
as of December 31, 1998, and 1999 and for each of the three years in the period
ended December 31, 1999 have been included herein and in the registration
statement in reliance upon the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION ABOUT US
We have filed with the Securities and Exchange Commission a registration
statement on Form S-1 under the Securities Act, with respect to the common stock
offered by this prospectus. As permitted by the rules and regulations of the
Commission, this prospectus, which is a part of the registration statement,
omits certain information, exhibits, schedules and undertakings set forth in the
registration statement. For further information pertaining to our company and
the common stock offered hereby, reference is made to such registration
statement and the exhibits and schedules thereto. Statements contained in this
prospectus as to the contents or provisions of any contract or other document
filed as an exhibit referred to herein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the registration statement, each such statement being qualified
in all respects by such reference. A copy of the registration statement may be
inspected without charge at the office of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices located at the
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of all or any part of the registration statement may be obtained
from such offices upon the payment of the fees prescribed by the SEC. For
further information, please call the SEC at 1-800-SEC-0330. In addition,
registration statements and certain other filings made with the commission
through its Electronic Data Gathering, Analysis and Retrieval system, including
our registration statement and all exhibits and amendments to our registration
statements, are publicly available through the Commission's Website at
http://www.sec.gov.
As a result of this offering we will become subject to the information and
reporting requirements of the Exchange Act and, in accordance therewith, will
file periodic reports, proxy statements and other information with the
Securities and Exchange Commission.
55
59
LEXENT INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Accountants........................... F-2
Consolidated Balance Sheets as of December 31, 1998 and
1999........................................................ F-3
Consolidated Statements of Income for the Years Ended
December 31, 1997, 1998 and 1999............................ F-4
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1997, 1998 and 1999............................ F-5
Consolidated Statements of Changes in Stockholders' Equity
(Deficit) for the Years Ended December 31, 1997, 1998 and
1999........................................................ F-6
Notes to Consolidated Financial Statements.................. F-7
F-1
60
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Lexent Inc.:
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of income, changes in stockholders' equity and
of cash flows present fairly, in all material respects, the financial position
of Lexent Inc. and Subsidiaries at December 31, 1999 and December 31, 1998, and
the results of their operations and their cash flows for each of the three years
in the period ended December 31, 1999 in conformity with accounting principles
generally accepted in the United States. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with auditing standards generally
accepted in the United States, which require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/S/ PRICEWATERHOUSECOOPERS LLP
New York, New York
February 1, 2000
F-2
61
LEXENT INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
DECEMBER 31, DECEMBER 31,
1998 1999
------------ ------------
ASSETS:
Current Assets:
Cash...................................................... $ 1,495 $ 1,158
Receivables, net.......................................... 26,342 48,748
Prepaid expenses and other assets......................... 535 156
Deferred tax asset, net................................... 1,696 2,748
------- -------
Total current assets................................... 30,068 52,810
------- -------
Property and equipment, net................................. 2,087 6,180
Other assets................................................ 154 545
------- -------
Total assets........................................... $32,309 $59,535
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT):
Current Liabilities:
Accounts payable.......................................... $ 5,369 $ 8,434
Accrued liabilities....................................... 4,149 9,700
Income taxes payable...................................... 3,076 5,711
Billings in excess of costs and estimated earnings on
uncompleted projects................................... 306 1,084
Notes payable to bank..................................... 4,500 --
Subordinated notes payable to stockholder................. 1,582 1,582
Equipment and capital lease obligations................... 384 1,014
Due to related parties.................................... 11 432
------- -------
Total current liabilities.............................. 19,377 27,957
------- -------
Subordinated notes payable to stockholders.................. 7,114 5,533
Notes payable to banks...................................... -- 8,841
Equipment and capital lease obligations..................... 405 1,842
------- -------
Total liabilities...................................... 26,896 44,173
------- -------
Commitments and contingencies
Redeemable convertible preferred stock at stated liquidation
preference of $2.131 per share at 1998 and $2.2553 per
share at 1999, $.001 par value, 5,538,458 shares
authorized, issued and outstanding........................ 11,801 12,491
------- -------
Stockholders' equity (deficit):
Common stock, $.001 par value, 44,461,542 shares
authorized, 15,144,400 and 15,279,400 shares
outstanding at 1998 and 1999, respectively............. 15 16
Additional paid-in capital................................ 1,804 2,496
Retained earnings (accumulated deficit)................... (8,207) 359
------- -------
Total stockholders' equity (deficit)................... (6,388) 2,871
------- -------
Total liabilities and stockholders' equity............. $32,309 $59,535
======= =======
See accompanying notes to consolidated financial statements.
F-3
62
LEXENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
YEAR ENDED DECEMBER 31,
------------------------------
1997 1998 1999
------- ------- --------
Revenues.................................................... $53,718 $70,959 $150,862
Cost of revenues............................................ 43,226 56,497 120,750
General, administrative and marketing expenses.............. 6,992 7,945 11,750
------- ------- --------
Operating income............................................ 3,500 6,517 18,362
Interest expense............................................ 1,151 1,143 1,104
Other expense, net.......................................... 9 166 27
------- ------- --------
Income before income taxes.................................. 2,340 5,208 17,231
Provision for income taxes.................................. 151 1,380 7,975
------- ------- --------
Net income.................................................. $ 2,189 $ 3,828 $ 9,256
======= ======= ========
Net income per share:
Basic..................................................... $ 0.14 $ 0.23 $ 0.57
======= ======= ========
Diluted................................................... $ 0.14 $ 0.22 $ 0.42
======= ======= ========
Weighted average common shares outstanding:
Basic..................................................... 15,144 15,144 15,147
======= ======= ========
Diluted................................................... 15,144 17,593 21,862
======= ======= ========
Pro forma information (unaudited):
Income before income taxes................................ $ 2,340 $ 5,208
Pro forma provision for income taxes...................... 1,053 2,344
------- -------
Pro forma net income...................................... $ 1,287 $ 2,864
======= =======
Pro forma net income per common share (unaudited):
Basic..................................................... $ 0.08 $ 0.16 $ 0.43
======= ======= ========
Diluted................................................... $ 0.08 $ 0.16 $ 0.41
======= ======= ========
Pro forma weighted average common shares outstanding:
Basic..................................................... 15,144 18,016 21,690
======= ======= ========
Diluted................................................... 15,144 18,016 22,578
======= ======= ========
See accompanying notes to consolidated financial statements.
F-4
63
LEXENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
YEAR ENDED DECEMBER 31,
-------------------------------
1997 1998 1999
------- -------- --------
Cash flows from operating activities:
Net income................................................ $ 2,189 $ 3,828 $ 9,256
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Provision for uncollectible amounts, net................ (102) 1,096 1,812
Depreciation and amortization........................... 510 779 1,495
Loss on disposition of assets........................... -- 42 71
Stock option compensation expense....................... -- -- 43
Provision for deferred taxes............................ -- (1,696) (1,052)
Changes in working capital items:
Accounts receivable including unbilled receivables
and costs of uncompleted projects.................. 1,924 (13,854) (24,218)
Prepaid expenses and other assets.................... (244) (1) (12)
Accounts payable..................................... 962 658 3,065
Accrued liabilities.................................. 433 2,613 5,464
Income taxes payable................................. (147) 3,012 3,304
Billings in excess of costs and estimated earnings on
uncompleted projects............................... (947) 110 778
------- -------- --------
Net cash provided by (used in) operating
activities....................................... 4,578 (3,413) 6
------- -------- --------
Cash flows from investing activities:
Acquisitions of property, plant and equipment, net of
equipment loans and capital leases...................... (414) (910) (2,908)
------- -------- --------
Net cash used in investing activities.............. (414) (910) (2,908)
------- -------- --------
Cash flows from financing activities:
Proceeds from issuance of convertible preferred stock..... -- 11,500 --
Proceeds from stock options exercised..................... -- -- 68
Issuance costs of convertible preferred stock............. -- (339) --
Proceeds from subordinated notes payable to
shareholders............................................ -- 388 --
Repayment of subordinated notes payable to shareholder.... -- (1,902) (1,581)
Borrowings under revolving credit agreement............... 100 -- 8,841
Repayment of notes payable to bank........................ -- -- (4,500)
Dividends and distributions to common shareholders........ (212) (5,138) --
Net borrowings from (payments to) related parties......... (3,022) (599) 421
Repayment of equipment loans and capital leases........... (243) (404) (684)
------- -------- --------
Net cash provided by (used in) financing
activities....................................... (3,377) 3,506 2,565
------- -------- --------
Net increase (decrease) in cash............................. 787 (817) (337)
Cash at beginning of year................................... 1,525 2,312 1,495
------- -------- --------
Cash at end of year......................................... $ 2,312 $ 1,495 $ 1,158
======= ======== ========
Supplemental cash flow information:
Cash paid for:
Interest................................................ $ 518 $ 1,626 $ 1,009
Income taxes............................................ 288 252 3,532
Supplemental disclosures of noncash investing and financing
activities:
Property, plant and equipment additions financed by
equipment loans and capital leases...................... $ 423 $ 443 $ 2,751
Note payable issued to acquire treasury stock............. 10,210 -- --
Cancellation of treasury shares due to merger............. -- 8,818 --
Adjustment to common shares due to merger................. -- 85 --
Distributions to common shareholders included in due to
related parties......................................... 238 -- --
Accrued dividends on preferred shares..................... -- 301 690
Tax benefit from exercise of nonqualified stock options... -- -- 582
See accompanying notes to consolidated financial statements.
F-5
64
LEXENT INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS)
STOCKHOLDERS' EQUITY
# SHARES ------------------------------------------------------------------------
REDEEMABLE REDEEMABLE RETAINED
CONVERTIBLE CONVERTIBLE # SHARES ADDITIONAL EARNINGS TREASURY TOTAL
PREFERRED PREFERRED COMMON COMMON PAID-IN (ACCUMULATED STOCK, STOCKHOLDERS'
STOCK STOCK STOCK STOCK CAPITAL DEFICIT) AT COST EQUITY
----------- ----------- -------- ------ ---------- ------------ -------- -------------
Balance January 1, 1997.... -- $ -- 15,144 $100 $ -- $ 3,786 $ (91) $ 3,795
Purchase of common stock
(14.5 shares)............ -- -- -- -- -- (1,483) (8,727) (10,210)
Distributions to common
stockholders............. -- -- -- -- -- (450) -- (450)
Net income................. -- -- -- -- -- 2,189 -- 2,189
----- ------- ------ ---- ------ ------- ------- --------
Balance at December 31,
1997..................... -- $ -- 15,144 $100 $ -- $ 4,042 $(8,818) $ (4,676)
Conversion of Hugh O'Kane
Electric Co. Inc. common
shares into Lexent Inc.
common shares............ -- -- -- (85) -- 85 -- --
Cancellation of treasury
stock due to merger of
Hugh O'Kane Electric Co.
Inc. into Lexent Inc..... -- -- -- -- -- (8,818) 8,818 --
Dividends declared to
common stockholders...... -- -- -- -- -- (4,900) -- (4,900)
Net income January 1, 1998
through July 23, 1998.... -- -- -- -- -- 1,804 -- 1,804
Transfer of undistributed
retained earnings to
additional paid-in
capital upon termination
of S Corporation
election................. -- -- -- -- 1,804 (1,804) -- --
Issuance of 5,538,458
redeemable convertible
preferred shares at
$2.07639 per share....... 5,538 11,500 -- -- -- -- -- --
Cost of issuing preferred
shares................... -- -- -- -- -- (339) -- (339)
Dividends accrued on
preferred shares......... -- 301 -- -- -- (301) -- (301)
Net income July 24, 1998
through December 31,
1998..................... -- -- -- -- -- 2,024 -- 2,024
----- ------- ------ ---- ------ ------- ------- --------
Balance at December 31,
1998..................... 5,538 $11,801 15,144 $ 15 $1,804 $(8,207) $ -- $ (6,388)
Issuance of 135,000 common
shares................... -- -- 135 1 67 -- -- 68
Tax benefit from exercise
of nonqualified stock
options.................. -- -- -- -- 582 -- -- 582
Stock option compensation
expense.................. -- -- -- -- 43 -- -- 43
Dividends accrued on
preferred shares......... -- 690 -- -- -- (690) -- (690)
Net income................. -- -- -- -- -- 9,256 -- 9,256
----- ------- ------ ---- ------ ------- ------- --------
Balance at December 31,
1999..................... 5,538 $12,491 15,279 $ 16 $2,496 $ 359 $ -- $ 2,871
===== ======= ====== ==== ====== ======= ======= ========
See accompanying notes to consolidated financial statements.
F-6
65
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
FORMATION OF COMPANY
Lexent Inc. ("Lexent"), formerly named National Network Technologies, Inc.,
was incorporated in Delaware in January 1998. Its wholly owned subsidiary, Hugh
O'Kane Electric Co. LLC ("HOK LLC") was formed in June 1998. On July 16, 1998,
Hugh O'Kane Electric Co., Inc. ("HOK Inc.") issued dividends aggregating $4.9
million in the form of promissory notes to its two principal common
stockholders. On July 22, 1998, HOK Inc. was merged with and into Lexent, and
Lexent issued 15,144,400 shares of common stock to the stockholders of the
former HOK Inc. In addition on such date, substantially all of the assets of
Lexent were contributed to HOK LLC, and HOK LLC assumed all of the obligations
of the former HOK Inc. The merger was accounted for in a manner similar to a
pooling of interests since all entities were under common control. Accordingly,
HOK LLC recorded the assets and liabilities of HOK Inc. at their historical book
values, and HOK LLC's results of operations have been presented as if the merger
had occurred at the beginning of the earliest period presented.
On July 23, 1998, Lexent sold 5,538,458 shares of preferred stock for cash
proceeds of $11.5 million, and used 4.9 million of such proceeds to pay
dividends to common stockholders and $2.6 million to pay portions of promissory
notes to stockholders, with the balance of $4.0 million retained for general
corporate purposes.
Lexent's wholly owned subsidiary, National Network Technologies LLC ("NNT
LLC") was formed in August 1998. Lexent, HOK LLC and NNT LLC are together
referred to herein as "the Company".
DESCRIPTION OF BUSINESS
The Company provides outsourced local telecommunications network services
to telecommunications companies by supplying expertise and resources to enable
its customers to build and connect their networks to other telecommunications
companies and individual end users. Certain projects whose duration is expected
to exceed 90 days may be structured with milestone events that dictate the
timing of payments, and customers for these projects may withhold 10% from each
billing until after the project has been completed and satisfactorily accepted.
The Company operates in cities in the Northeast and MidAtlantic regions,
including Baltimore, Boston, Newark, New York, Philadelphia, Stamford and
Washington, D.C. For the year 1999, a majority of revenues was earned from
services provided in the New York metropolitan region, including New York City,
New Jersey, Long Island and Westchester County.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of Lexent and
its wholly-owned subsidiaries, HOK LLC and NNT LLC. All significant intercompany
accounts and transactions have been eliminated in consolidation.
REVENUE AND COST RECOGNITION
The Company's services are performed under unit price, fixed price,
cost-plus-fee, or time and materials agreements. For projects whose duration is
expected to be 90 days or less, revenues and related costs are recognized using
the completed contract method. Under this method, revenues and costs are
recognized when the project has been completed.
For projects whose duration is expected to exceed 90 days, revenues are
recognized using the percentage-of-completion method. Under the
percentage-of-completion method, in each period revenues are recognized based on
a comparison of the costs incurred for each project to the currently estimated
F-7
66
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
total costs to be incurred for the project. Accordingly, the revenue recognized
in a given period depends on the costs incurred for individual projects through
that period and currently estimated total remaining costs to complete the
individual projects. If in any period the estimates of the total remaining costs
to complete a project are significantly increased, very little or no additional
revenue may be recognized with respect to that project. Project costs include
all direct material, equipment, and labor costs and allocated indirect costs
related to project performance, such as fringe benefits, payroll taxes,
depreciation, maintenance, supplies, and small tools.
Revenues from cost-plus-fee projects are recognized on the basis of costs
incurred during the period plus the fee earned.
General, administrative and marketing costs are charged to expense as
incurred. Provisions for estimated losses on projects are made in the period in
which such losses are determined.
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost, less accumulated depreciation and
amortization. Depreciation of property and equipment is calculated on the
straight-line basis and accelerated methods over the estimated useful lives of
the assets. Useful lives of property and equipment are as follows: motor
vehicles - 5 years, tools and equipment - 7 years, furniture, office and
computer equipment - 5 years, leasehold improvements - lesser of 3 years or
duration of lease. Expenditures for repairs and maintenance are expensed as
incurred; expenditures for major renewals and betterments are capitalized. When
assets are sold or otherwise disposed of, the cost and related accumulated
depreciation are removed from the accounts and any gain or loss on disposition
is reflected in current operations. Property and equipment is reviewed for
impairment whenever events or changes in circumstances indicate that the related
carrying amount may not be recoverable. The Company capitalizes the costs of
purchased software and amortizes such costs over its estimated useful life of
three years. Management does not believe that there are any material impairments
at December 31, 1999.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the consolidated
financial statements and the reported amounts of revenues and expenses during
the reporting period. Significant estimates relate to realizability of accounts
receivable including unbilled receivables and costs of uncompleted projects,
percentages of completion of projects in progress, contracts, property and
equipment and accrued expenses. Actual results could differ from those
estimates.
INCOME TAXES
The Company recognizes deferred income taxes for the tax consequences in
future years of differences between the tax bases of assets and liabilities and
their financial reporting amounts at each year-end based on enacted tax laws and
statutory tax rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount expected to be realized.
Income tax expense consists of the tax payable for the period and the change
during the period in deferred tax assets and liabilities.
F-8
67
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
STOCK-BASED COMPENSATION
The Company accounts for stock-based compensation in accordance with SFAS
No. 123, Accounting for Stock-Based Compensation. SFAS No. 123 permits entities
to recognize the fair value of all stock-based awards on the date of grant as
expense over the vesting period or allows entities to apply the provisions of
Accounting Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to
Employees. Under APB No. 25 compensation expense is recorded on the date of
grant only if the current market price of the underlying stock exceeds the
exercise price, with pro forma net income disclosures as if the fair-value-based
method defined in SFAS No. 123 had been applied. The Company has elected to
apply the provisions of APB Opinion No. 25 and provide the pro forma disclosure
provisions of SFAS No. 123.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of cash, accounts receivable, accounts payable, and
accrued expenses approximate fair value due to the short-term nature of these
instruments. The carrying amounts reported for the equipment obligations
approximate fair value because the underlying instruments earn interest at rates
comparable to current terms offered to the Company for instruments of similar
risk. The carrying amounts reported for the notes payable to banks approximate
fair value because the interest rate on such notes fluctuates with the prime
rate. The fair values of subordinated notes payable to stockholders are not
estimable due to their related party nature.
SEGMENT REPORTING
All of the Company's business activities are aggregated into one reportable
segment given the similarities of economic characteristics between the
activities and the common nature of the Company's services and customers.
RECENT ACCOUNTING PRONOUNCEMENTS
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued Statement of Position 98-1,
Accounting for the Costs of Computer Software Developed or Obtained for Internal
Use, which requires entities to capitalize certain cost related to internal-use
software once certain criteria have been met. In April 1998, the same committee
issued Statement of Position 98-5, Reporting on the Costs of Start-Up
Activities. These standards are effective for the first quarter of the year
1999. The adoption of these standards did not have a material effect on our
consolidated financial statements.
NET INCOME PER SHARE
Basic net income per share is computed by dividing net income (after
deducting dividends accrued on preferred stock) by the weighted average number
of common shares outstanding for the period. Diluted earnings per share reflects
the potential dilution of other securities by assuming the redeemable
convertible preferred stock had been converted into common stock as of the later
of the date of issuance of the preferred stock or the beginning of the fiscal
period presented at the conversion rates that would have been in effect at such
dates (and without deducting from net income dividends accrued on preferred
stock), and by including the dilutive effect of outstanding stock options in the
weighted average number of common
F-9
68
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
shares outstanding for each period. Options granted in 1998 were anti-dilutive
and are therefore excluded from the calculation below. Details of the
calculation are as follows:
YEAR ENDED DECEMBER 31,
--------------------------
1997 1998 1999
------ ------ ------
(IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS)
NET INCOME PER SHARE -- BASIC:
Net Income............................................... $2,189 $3,828 $9,256
Less: preferred dividends................................ -- (301) (690)
------ ------ ------
Net income available to common shareholders.............. $2,189 $3,527 $8,566
====== ====== ======
Weighted average shares -- basic......................... 15,144 15,144 15,147
====== ====== ======
Net Income per share -- basic............................ $ 0.14 $ 0.23 $ 0.57
====== ====== ======
NET INCOME PER SHARE -- DILUTED:
Net Income............................................... $2,189 $3,828 $9,256
====== ====== ======
Weighted average shares outstanding...................... 15,144 15,144 15,147
Assumed conversion of preferred stock as of the later of
the date of issuance of the preferred stock or the
beginning of the fiscal period presented at the
conversion rates that would have been in effect at such
dates.................................................. -- 2,448 5,827
Dilutive effect of stock options......................... -- -- 888
------ ------ ------
Weighted average shares -- diluted....................... 15,144 17,593 21,862
====== ====== ======
Net income per share -- diluted.......................... $ 0.14 $ 0.22 $ 0.42
====== ====== ======
RECLASSIFICATIONS
Certain prior period amounts have been reclassified to conform to the
current year presentation.
PRO FORMA INFORMATION -- (UNAUDITED)
Pro forma information included in the consolidated statements of income for
the years 1997 and 1998 reflects the pro forma effect of providing income taxes
on previously untaxed subchapter "S" income before taxes. This pro forma effect
is calculated assuming a 45% effective tax rate.
Pro forma information for the years 1998 and 1999 reflects the pro forma
effect of the conversion of redeemable convertible preferred stock into common
stock upon the consummation of the Company's initial public offering at the
conversion rate of 1.1814 shares of common stock for each share of redeemable
convertible preferred stock. The pro forma basic and diluted weighted average
share
F-10
69
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
calculations reflect the conversion of redeemable convertible preferred stock at
the later of the beginning of the period presented or the date of issuance of
the redeemable convertible preferred stock, at such conversion rate. The
calculation of pro forma basic and diluted income per share after giving effect
to the foregoing assumptions is as follows:
YEAR ENDED DECEMBER 31,
--------------------------
1997 1998 1999
------ ------ ------
(IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS)
PRO FORMA NET INCOME PER SHARE -- BASIC:
Pro forma net income..................................... $1,287 $2,864 $ --
------ ------ ------
Actual net income........................................ $ -- $ -- $9,256
====== ====== ======
Weighted average shares - actual......................... 15,144 15,144 15,147
Assumed conversion of preferred stock at 1.1814 common
shares for each share of redeemable convertible
preferred stock........................................ -- 2,872 6,543
------ ------ ------
Pro forma weighted average shares -- basic............... 15,144 18,016 21,690
====== ====== ======
Pro forma net income per share -- basic.................. $ 0.08 $ 0.16 $ 0.43
====== ====== ======
PRO FORMA NET INCOME PER SHARE -- DILUTED:
Adjustments to basic weighted average shares for
outstanding options.................................... -- -- 888
------ ------ ------
Pro forma weighted average shares -- diluted............. 15,144 18,016 22,578
====== ====== ======
Pro forma net income per share -- diluted................ $ 0.08 $ 0.16 $ 0.41
====== ====== ======
2. RECEIVABLES, NET
DECEMBER 31, DECEMBER 31,
1998 1999
------------ ------------
(IN THOUSANDS)
Accounts receivable -- billed to customers................. $18,567 $30,226
Unbilled receivables on completed projects accounted for
under the completed contract method...................... 3,883 4,908
Costs and estimated earnings in excess of billings on
projects accounted for under the percentage-of-completion
method................................................... 1,832 3,858
Unbilled receivables on cost-plus contracts................ -- 6,066
Costs of uncompleted projects accounted for under the
completed contract method................................ 3,116 6,138
Retainage.................................................. 734 1,154
------- -------
28,132 52,350
Less: allowance for uncollectible amounts.................. (1,790) (3,602)
------- -------
$26,342 $48,748
======= =======
For the years ended December 31, 1997, 1998 and 1999 the Company's
provision for uncollectible amounts were $0.5 million, $1.6 million and $2.4
million, respectively. The amounts written off against the provision for those
years were $0.6 million, $0.5 million and $0.6 million, respectively.
Amounts retained by customers related to projects which are progress-billed
may be outstanding for periods that exceed one year.
F-11
70
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
3. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
DECEMBER 31, DECEMBER 31,
1998 1999
------------ ------------
(IN THOUSANDS)
Motor vehicles............................................. $ 2,672 $ 5,069
Tools and equipment........................................ 846 2,171
Office equipment and furniture............................. 205 640
Computer equipment......................................... 336 1,059
Leasehold improvements..................................... 179 363
Purchased software......................................... 167 383
------- -------
Property, plant and equipment............................ 4,405 9,659
Less: accumulated depreciation and amortization............ (2,318) (3,479)
------- -------
Property, plant and equipment, net....................... $ 2,087 $ 6,180
======= =======
Depreciation and amortization expense for the years ended December 31,
1997, 1998 and 1999 was $0.5 million, $0.8 million, and $1.5 million,
respectively. Accumulated amortization at December 31, 1999 included $0.1
million related to capitalized leases -- see Note 9 of Notes to Consolidated
Financial Statements for further information.
4. NOTES PAYABLE AND OTHER FINANCING ARRANGEMENTS
At December 31, 1999, the Company had notes payable to banks aggregating
$8.8 million under a $12.5 million collateralized revolving credit facility,
with substantially all assets of the Company pledged as collateral. The credit
facility expires in June 2002. Borrowings bear interest at the banks' prime rate
plus 0.25% (8.75% at December 31, 1999). The Company must meet certain covenants
related to earnings and interest coverage. In addition, the credit agreement
prohibits the Company from declaring or paying dividends, incurring additional
indebtedness other than for equipment obtained in the ordinary course of
business, and making acquisitions of other businesses in excess of $250,000 in
any calendar year. The bank loans are partially guaranteed by the Company's two
principal common stockholders up to a maximum of $1.5 million each. As of
December 31, 1999, the Company was in compliance with all covenants under the
credit agreement.
At December 31, 1998 the Company had two unsecured notes payable to a bank
aggregating $4.5 million. The notes were guaranteed by the Company's common
stockholders and bore interest at the bank's prime rate (7.75% at December 31,
1998). The notes were repaid in June 1998 from proceeds of the collateralized
revolving credit facility mentioned above.
At December 31, 1998 and 1999, the Company had $0.8 million and $2.2
million, respectively, of installment loans payable, primarily related to its
fleet of vehicles. Of those amounts, $0.4 million and $0.7 million,
respectively, were classified as current, with the balance classified as
noncurrent. The loans bear interest at rates ranging between 1.9% and 9.5%, have
terms averaging three years, and are collateralized by the vehicles.
At December 31, 1999 the Company had $0.7 million of capital lease
obligations. See Note 9 of Notes to Consolidated Financial Statements for
further information.
F-12
71
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following are the maturities of long-term debt (excluding capitalized
lease obligations) for each of the next five years:
MATURITY AMOUNT
-------- --------------
(IN THOUSANDS)
2000................................................... $ 714
2001................................................... 620
2002................................................... 9,372
2003................................................... 287
2004................................................... 43
-------
$11,036
=======
5. SUBORDINATED NOTES PAYABLE TO STOCKHOLDERS AND RELATED PARTY TRANSACTIONS
SUBORDINATED NOTES PAYABLE TO STOCKHOLDERS
On January 1, 1997, the Company repurchased common shares owned by a
stockholder and issued a subordinated promissory note in the amount of $10.2
million. The note bears interest at the rate of 6%. The first payment on the
note was made on July 23, 1998, at which time $1.5 million plus accrued interest
was paid. The remaining balance is payable in twenty-two quarterly installments
of $0.4 million plus accrued interest starting October 1, 1998, with the final
payment due on January 1, 2004. As of December 31, 1998 and 1999, the
outstanding principal balance of the note was $8.3 million and $6.7 million,
respectively, of which $1.6 million is classified as current at both dates, and
the balance is classified as non-current. The note is subordinated to all senior
debt.
As of December 31, 1999, the Company also had outstanding subordinated
promissory notes payable to its two principal common stockholders in the
aggregate amount of $0.4 million, which are classified as non-current. The notes
bear interest at 6% and are subordinated to all senior debt. Payment of
principal and interest on these notes is not permitted under the Company's bank
credit agreement.
RELATED PARTY TRANSACTIONS
The Company leases several premises from entities which are owned by its
principal common stockholders. Prior to 1998, the Company paid rent based on an
informal arrangement with the stockholders. Such rent was insignificant for
calendar year 1997. During 1998, the Company entered into a formal lease
agreement for these premises. Annual rentals for office and warehouse premises
at 88-90 White Street, New York, NY are $0.3 million for calendar years 1998
through 2001, and $0.4 million for calendar year 2002. Annual rentals for office
and warehouse premises in South Plainfield, NJ are $0.1 million for the
twelve-month periods April through March, commencing April 1998 through March
2008. At December 31, 1998 amounts payable by the Company to the foregoing
related entities aggregated $0.1 million. Such amounts were paid during 1999.
Periodically the Company's principal common stockholders advance money to
the Company for its operating needs, and periodically the Company makes
repayments of such advances. At December 31, 1998 a common stockholder owed the
Company $0.1 million. At December 31, 1999, the amounts owed by the Company to
its two principal common stockholders aggregated $0.2 million. At December 31,
1998, such amounts were insignificant. Such amounts bear interest at the rate of
6%, are not subordinated, and are classified as current because there are no
formal repayment terms.
During 1998 and 1999, the Company purchased services for total costs of
$0.5 million and $1.4 million, respectively, from Metro Design Systems, Inc.
("MDS"), an entity which was owned by the
F-13
72
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's principal common stockholders and a director of the Company. During
1997 such purchased services were insignificant. In September 1999, the Company
acquired the plant and equipment, trade name, and goodwill of MDS for a purchase
price of $0.2 million which was paid in cash. As of December 31, 1999 amounts
payable by the Company to MDS amounted to $0.2 million.
On July 20, 1998 the Company agreed to provide a former officer, who is
currently a common stockholder, with a new automobile every three years and
lifetime medical, dental and life insurance benefits consistent with his
then-existing coverage, while he remains a stockholder of the Company. Costs
incurred for such benefits are charged to expense as incurred, and were
insignificant for the years 1998 and 1998. The Company has also agreed to pay
its founder a pension of $0.1 million per year for life.
Interest expense incurred by the Company from related parties during the
years 1997, 1998 and 1999 amounted to $0.8 million, $0.6 million and $0.5
million, respectively. Accrued interest payable to related parties as of
December 31, 1998 and 1999 was $0.1 million.
6. RETIREMENT PLANS AND 401K SAVINGS PLAN
Until December 31, 1998, the Company had two noncontributory, defined
contribution pension plans and a defined benefit pension plan covering all
employees who are not subject to collective bargaining agreements. Contributions
from the Company were accrued and funded annually. Those plans were terminated
as of December 31, 1998, and the assets were distributed to the participants in
January 1999. No pension expense was recorded for the year ended December 31,
1998, because the plans were fully funded at termination.
Effective January 1, 1999, the Company adopted The Vanguard Group Prototype
401(k) Savings Plan, covering all employees who are not subject to collective
bargaining agreements. Each covered employee is eligible to become a
participant, and may contribute up to 15% of salary on a tax-deferred basis. The
Company contributes 3% of each covered employee's salary up to the maximum
annual amount permitted by IRS regulations. The Company's contributions vest
ratably over the employees' first five years of service. For the year ended
December 31, 1999, $0.2 million was charged to expense for the 401(k) plan.
7. INCOME TAXES
The Company files a consolidated federal income tax return with its
subsidiaries. The provision for income taxes consists of:
DECEMBER 31,
---------------------------
1997 1998 1999
------ ------- ------
(IN THOUSANDS)
Current:
Federal....................................... $ -- $ 2,099 $7,950
State and local............................... 151 977 2,360
Deferred........................................ -- (1,696) (2,338)
------ ------- ------
Provision for income taxes...................... $ 151 $ 1,380 $7,975
====== ======= ======
In July 1998, the Company's tax status was changed from an S corporation to
a C corporation in connection with the transactions described in Note 1 of Notes
to Consolidated Financial Statements. The difference between the expected
federal income tax provision calculated using statutory rates and the actual
provision recorded for the year ended December 31, 1998 is due principally to
the effect of the
F-14
73
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's change in tax status, the allowance for uncollectible amounts,
depreciation and amortization, deferred costs on uncompleted projects and
certain accrued liabilities.
The components of deferred tax assets and liabilities are as follows:
DECEMBER 31,
----------------
1998 1999
------ ------
(IN THOUSANDS)
Deferred tax assets:
Allowance for uncollectible amounts...................... $ 498 $1,669
Deferred costs on uncompleted projects................... 643 858
Accrued liabilities...................................... 558 340
------ ------
Total deferred tax assets............................. 1,699 2,867
------ ------
Deferred tax liability:
Depreciation and amortization............................ 3 119
------ ------
Net deferred tax asset..................................... $1,696 $2,748
====== ======
In assessing the realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of the deferred tax
assets will not be realized. Based upon the level of historical taxable income
and projections for future taxable income, management believes it is more likely
than not that the Company will realize the deferred tax assets. As such, no
valuation allowance was established during the years 1998 or 1999.
A reconciliation of statutory federal income tax expense on the earnings
from continuing operations is as follows:
1997 1998 1999
------ ------ -----
Federal statutory rate applied to pre-tax
income.......................................... 34.00% 34.00% 35.00%
State taxes, net of federal benefit............... 11.39 11.46 10.40
Tax effect of non-deductible items................ 3.39 2.39 0.88
Effect on income from S corporation years......... (39.41) (22.65) --
------ ------ -----
Total tax provision............................... 9.37% 25.20% 46.28%
====== ====== =====
8. CONTINGENCIES
From time to time, the Company is involved in various lawsuits and legal
proceedings which arise in the ordinary course of business. In addition, in
August 1999, a former employee filed a charge of employment discrimination
against the Company with the New York State Division of Human Rights and the
Equal Employment Opportunity Commission and has been granted a right to sue in
federal court. If suit is brought, Company's management is prepared to defend
this claim vigorously. The Company believes that the resolution of these matters
will not have a material impact on the Company's financial position, results of
operations or liquidity.
9. LEASE COMMITMENTS
The Company leases equipment, motor vehicles and real estate (other than
real estate leased from related parties referred to in Note 5 of the Notes to
Consolidated Financial Statements) under leases accounted for as operating
leases for lease terms ranging from one to nine years. Total rent expense
amounted to $0.4 million, $0.8 million and $1.8 million for the years ended
December 31, 1997, 1998 and
F-15
74
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
1999, respectively. Future minimum lease payments under operating leases as of
December 31, 1999 are as follows:
AMOUNT
--------------
(IN THOUSANDS)
2000................................................... $1,625
2001................................................... 1,427
2002................................................... 1,230
2003................................................... 670
2004................................................... 495
After 2004............................................. 354
------
$5,801
======
During 1999, the Company leased computer equipment under capital leases. As
of December 31, 1999, the asset balance of such capital leases was $0.8 million,
and accumulated amortization was $0.1 million. The weighted average interest
rate for capitalized leases is 6.5%. The following is a schedule by years of
future minimum lease payments under capital leases together with the present
value of the net minimum lease payments as of December 31, 1999:
AMOUNT
--------------
(IN THOUSANDS)
2000................................................... $300
2001................................................... 291
2002................................................... 167
----
Total minimum lease payments........................... 758
Less: amount representing interest..................... 97
----
Present value of net minimum lease payments............ $661
====
10. REDEEMABLE CONVERTIBLE PREFERRED STOCK
On July 23, 1998, Lexent sold 5,538,458 shares of redeemable convertible
preferred stock for proceeds of $11.5 million. Costs of $0.3 million incurred in
connection with issuing such preferred stock were charged to stockholders'
equity. The preferred stock is entitled to cumulative dividends at the rate of
6% per annum. At the option of the holders, dividends may be paid in the form of
additional value of preferred stock or in cash. Dividends are payable in cash in
the event of liquidation or redemption. The preferred stock is convertible into
common stock at a conversion rate which increases to give effect to cumulative
accrued dividends. For the years ended December 31, 1998 and 1999, dividends
have been accrued as additional value of preferred stock in the amounts of $0.3
million and $0.7 million, respectively, offset by a charge to retained earnings
(accumulated deficit).
Conversion is automatic upon the closing of a public offering of common
stock. If not otherwise converted into common stock, the preferred stock is
redeemable over a three-year period at the option of the holders beginning July
23, 2003, or under certain circumstances, beginning July 23, 2001.
The holders of the preferred stock have agreed that in the event a public
offering of common stock is consummated, preferred dividends accrued through
December 31, 1998 will be paid in the form of additional value of preferred
stock, and preferred dividends accrued from January 1, 1999 through date of
conversion will be paid in cash. Accordingly, assuming a public offering of
common stock is consummated, the conversion rate will be 1.1814 shares common
share for each share of preferred stock.
F-16
75
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
11. STOCK OPTIONS AND AWARDS
The Company has adopted a Stock Option and Restricted Stock Purchase Plan,
pursuant to which up to 5,800,000 common shares are available for option grants.
Stock options granted under the plan may be incentive stock options or
nonqualified stock options and are exercisable for up to ten years following the
date of grant. Vesting provisions are determined by the Board of Directors on a
case by case basis. Options granted become exercisable over periods ranging from
immediately to up to four years after the date of grant.
In July 1998, the Company issued 110,000 nonqualified options to an outside
director as a finder's fee in connection with the Company's sale of preferred
stock in July 1998. The fair value of the options at the date of grant was $0.2
million. The options vested immediately. Accordingly, the Company recorded a
charge to retained earnings of $0.2 million in 1998 as a cost of issuing the
preferred stock.
In September 1998, the Company issued 50,000 options to an outside
director. The vesting period of such options was 50% after the first year, with
the balance vesting over the next three years. For options issued to outside
directors, the Company's policy is to charge compensation expense over the
vesting period in an amount equal to the fair value of the options at grant date
as determined by the Board of Directors. For the years ended December 31, 1998
and 1999, such charge to compensation expense was immaterial.
Stock option transactions are summarized below:
WEIGHTED
AVERAGE FAIR
VALUE OF
WEIGHTED COMMON
NUMBER OF AVERAGE STOCK AT DATE
SHARES EXERCISE PRICE OF GRANT
--------- -------------- -------------
Outstanding at December 31, 1997.............. -- --
Granted..................................... 380,000 $0.50 $0.50
Exercised or canceled....................... -- --
Outstanding at December 31, 1998.............. 380,000 $0.50
Granted..................................... 2,116,500 $3.90 $3.90
Exercised................................... (135,000) $0.50
Canceled.................................... -- --
---------
Outstanding at December 31, 1999.............. 2,361,500 $3.54
=========
The following table summarizes options outstanding and exercisable at
December 31, 1999:
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
--------------------------------------------- ----------------------------
WEIGHTED WEIGHTED WEIGHTED
RANGE OF NUMBER AVERAGE AVERAGE NUMBER AVERAGE
EXERCISE PRICES OUTSTANDING REMAINING LIFE EXERCISE PRICE EXERCISABLE EXERCISE PRICE
- --------------- ----------- -------------- -------------- ----------- --------------
$0.50 - $1.52 1,661,500 9.1 $ 0.83 377,083 $ 0.74
$10.00 700,000 10.0 $10.00 200,000 $10.00
--------- -------
2,361,500 $ 3.54 577,083 $ 3.95
========= =======
For option grants to employees, the Company's policy is to grant options
with an exercise price equal to the fair value per share of the underlying
common stock at grant date, as determined by the Board of Directors.
Accordingly, the Company is not required to record compensation expense in
connection with grants of stock options to employees. If compensation expense
had been determined based on the fair value of the options at grant date,
consistent with the Black-Scholes option pricing methodology, the
F-17
76
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's net income for the year ended December 31, 1999 would have decreased
by approximately $0.2 million. In making that calculation, the following
assumptions were used:
Expected volatility factor.......................... 74.13%
Risk-free interest rate............................. 6.04%
Expected life:...................................... 4 years
Expected dividend rate.............................. 0%
For purposes of pro forma disclosures, the estimated fair value of options
at grant date is amortized to pro forma expense over the options' vesting
period. Pro forma information for the year ended December 31, 1999 is as
follows:
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Net income:
As reported................................ $9,256
Pro forma.................................. $9,063
Basic and diluted net income per share as
reported:
Basic...................................... $ 0.57
Diluted.................................... $ 0.42
Basic and diluted pro forma net income per
share:
Basic...................................... $ 0.55
Diluted.................................... $ 0.41
12. ACCRUED LIABILITIES
Accrued liabilities are comprised of:
DECEMBER 31,
------------------
1998 1999
------ ------
(IN THOUSANDS)
Accrued payroll and related items........................... $2,704 $5,265
Accrued project costs....................................... 439 1,844
Other....................................................... 1,006 2,591
------ ------
Total.................................................. $4,149 $9,700
====== ======
13. CONCENTRATION OF CREDIT RISK
Financial instruments which potentially subject the Company to credit risk
consist primarily of cash and trade receivables.
Cash balances may, at times, exceed amounts covered by FDIC insurance. The
Company believes that it mitigates its risk by depositing cash balances with
high quality financial institutions that it believes are financially sound.
Recoverability is dependent upon the performance of the institution.
Trade receivables are primarily short-term receivables from competitive
local exchange carriers and generally well known contracting companies. To
reduce credit risk, the Company performs credit evaluations of its customers but
does not generally require collateral and, therefore, the majority of its trade
receivables are unsecured. Credit risk is affected by conditions within the
economy. The Company establishes an allowance for doubtful accounts based upon
factors surrounding the credit risk of specific customers, historical trends,
and other information.
F-18
77
LEXENT INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company believes concentration of credit risk with respect to accounts
receivable is limited due to the large number of customers comprising the
Company's customer base and their dispersion across geographic areas. For the
year 1997, the Company had revenues from two separate customers, which comprised
21.2% and 10.3% of the Company's total revenues. At December 31, 1997, accounts
receivable from these customers totaled $3.2 million and $0.9 million,
respectively. For the year 1998, the Company had revenues from two separate
customers, which comprised 16.4% and 12.7% of the Company's total revenues. At
December 31, 1998, accounts receivable from these customers totaled $3.9 million
and $2.6 million, respectively. For the year 1999, the Company had revenues from
two separate customers, which comprised 25.7% and 13.2% of the Company's total
revenues. At December 31, 1999, accounts receivable from these customers totaled
$6.8 million and $3.6 million, respectively.
F-19
78
[LEXENT LOGO]
79
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the Registrant's expenses in connection with
the issuance and distribution of the securities being registered. Except for the
SEC Registration Fee and the National Association of Securities Dealers, Inc.
("NASD") Filing Fee, the amounts listed below are estimates:
AMOUNT
TO BE
PAID
-------
SEC Registration Fee........................................ $22,770
NASD Filing Fee............................................. 9,125
Nasdaq Listing Fees......................................... *
Legal Fees and Expenses..................................... *
Blue Sky Fees and Expenses.................................. 10,500
Accounting Fees and Expenses................................ *
Printing and Engraving...................................... *
Transfer Agent and Register Fees and Expenses............... *
Miscellaneous............................................... *
-------
$
=======
- ---------------
* To be provided by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Second Amended and Restated Certificate of Incorporation (the
"Restated Certificate") provides that the Company shall indemnify to the fullest
extent authorized by the Delaware General Corporation Law ("DGCL"), each person
who is involved in any litigation or other proceeding because such person is or
was a director or officer of the Company or is or was serving as an officer or
director of another entity at the request of the Company, against all expense,
loss or liability reasonably incurred or suffered in connection therewith. The
Restated Certificate provides that the right to indemnification includes the
right to be paid expenses incurred in defending any proceeding in advance of its
final disposition; provided, however, that such advance payment will only be
made upon delivery to the Company of an undertaking, by or on behalf of the
director or officer, to repay all amounts so advanced if it is ultimately
determined that such director is not entitled to indemnification. If the Company
does not pay a proper claim for indemnification in full within 60 days after a
written claim for such indemnification is received by the Company, the Restated
Certificate and the Company's Bylaws authorize the claimant to bring an action
against the Company and prescribe what constitutes a defense to such action.
Section 145 of the DGCL permits a corporation to indemnify any director or
officer of the corporation against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person is or was a director or officer of the corporation if they
acted in good faith and reasonably believed they were acting in the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if he or she had no reason to believe his or her conduct was
unlawful. In a derivative action, (i.e., one brought by or on behalf of the
corporation), indemnification may be made only for expenses, actually and
reasonably incurred by any director or officer in connection with the defense or
settlement of such an action or suit, if such person acted in good faith and in
a manner that he reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made if
such person shall have been adjudged to be liable to the corporation, unless and
only to
II-1
80
the extent that the court in which the action or suit was brought shall
determine that the defendant is fairly and reasonably entitled to indemnity for
such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Restated Certificate
eliminates the liability of a director to the corporation or its stockholders
for monetary damages for such breach of fiduciary duty as a director, except for
liabilities arising (i) from any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) from acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL, or (iv) from any transaction from which the
director derived an improper personal benefit.
The Company has obtained primary and excess insurance policies insuring the
directors and officers of the Company against certain liabilities that they may
incur in their capacity as directors and officers. Under such policies, the
insurers, on behalf of the Company, may also pay amounts for which the Company
has granted indemnification to the directors or officers. In addition, we have
entered into indemnification agreements with each of our directors and executive
officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 hereto, which provides for indemnification by the Underwriters of
the Company, its directors and officers who sign the Registration Statement and
persons who control the Company, under certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since inception, the Company has sold and issued the following securities
that were not registered under the Securities Act:
1. On July 23, 1998, pursuant to the terms of the merger in which Hugh
O'Kane Electric Co. Inc. merged with and into the Company, the Company
issued 15,144,400 shares of common stock to three former shareholders of
Hugh O'Kane Electric Co., Inc.
2. On July 23, 1998, pursuant to the terms of an equity financing of
the Company, the Company issued 5,538,458 shares of Series A Convertible
Preferred Stock to two investors for $11.5 million.
3. During the period from July 23, 1998 through February 17, 2000, the
Company granted either incentive stock options or non-qualified stock
options to employees, officers, directors and other individuals eligible to
participate in the Lexent Inc. and its Subsidiaries Stock Option and
Restricted Stock Purchase Plan covering an aggregate of 3,691,500 shares of
the Company's common stock. Pursuant to these grants, the Company has
issued 465,625 shares of common stock upon the exercise thereof.
4. On February 17, 2000, pursuant to a common stock purchase agreement
dated January 21, 2000, the Company issued 20,000 shares of common stock to
a director of the Company for $200,000.
The sale and issuance of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act, or Regulation D promulgated thereunder, or Rule 701 promulgated
under Section 3(b) of the Securities Act, as transactions by an issuer not
involving a public offering or transactions pursuant to compensatory benefit
plans and contracts relating to compensation as provided under such Rule 701.
The recipients of securities in each such transaction represented their
intention to acquire the securities for investment only and not with a view to
or for sale in connection with any distribution thereof and appropriate legends
were affixed to the share certificates and instruments issued in such
transactions. All recipients had adequate access, through their relationships
with the Company, to information about the Company.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
II-2
81
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
1.1* -- Form of Underwriting Agreement.
3.1 -- Amended and Restated Certificate of Incorporation of
Registrant as amended.
3.2* -- Form of Registrant's Second Amended and Restated Certificate
of Incorporation to be effective upon the consummation of
this offering.
3.3 -- By Laws of Registrant.
3.4* -- Form of Registrant's Amended and Restated By-Laws to be
effective upon the consummation of this offering.
4.1* -- Specimen certificate for shares of Common Stock.
4.2 -- Registration Rights Agreement, dated as of July 23, 1998,
among Registrant and the investors named therein.
4.3 -- Stockholders Agreement, dated as of July 23, 1998, as
amended January 13, 2000, among Registrant and the
stockholders identified on Annex I thereto.
4.4 -- Agreement, dated July 20, 1998, by and among Registrant,
Hugh O'Kane Electric Co., Inc. and Denis J. O'Kane.
4.5 -- Voting Agreement, dated February 11, 2000, by and among
Registrant, Hugh J. O'Kane, Jr. and Kevin M. O'Kane.
5.1* -- Opinion of Reboul, MacMurray, Hewitt, Maynard & Kristol,
with respect to the legality of securities being registered.
10.1* -- Lexent Inc. and Its Subsidiaries Amended and Restated Stock
Option and Restricted Stock Purchase Plan.
10.2 -- Form of Stock Option Agreement pursuant to the Stock Option
and Restricted Stock Purchase Plan.
10.3 -- Credit Agreement, dated as of June 29, 1999, as amended
November , 1999, by and among Registrant and European
American Bank, as Administrative Agent, and the lenders
party thereto.
10.4 -- Amended and Restated Promissory Note, dated July 23, 1998,
between Registrant and Denis J. O'Kane.
10.5* -- Form of Indemnification Agreement between Lexent Inc. and
Directors thereof.
10.6 -- Employment Agreement, dated July 23, 1998, as amended
February 14, 2000, between Hugh O'Kane Jr. and Registrant.
10.7 -- Employment Agreement, dated July 23, 1998, as amended
February 14, 2000, between Kevin O'Kane and Registrant.
10.8 -- Employment Agreement, dated August 20, 1998, as amended
February 14, 2000, between Jonathan H. Stern and Registrant.
10.9 -- Employment Agreement, dated December 13, 1999, between
Joseph Haines and Registrant.
10.10 -- Employment Agreement, dated December 20, 1999, between Rif
K. Haffar and Registrant.
10.11 -- Employment Agreement, dated December 23, 1999, between
Victor P. DeJoy, Sr. and Registrant.
10.12 -- Employment Agreement, dated January 9, 2000, between Alf T.
Hansen and Registrant.
10.14* -- Engineer, Procure and Construct Contract, dated December 28,
1998, between Level 3 Communications, LLC and Registrant.
11.1 -- Statement Regarding Computation of Per Share Earnings.
21.1 -- Subsidiaries of the Company.
23.1 -- Consent of PriceWaterhouseCoopers LLP, independent
accountants.
II-3
82
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
23.2* -- Consent of Reboul, MacMurray, Hewitt, Maynard & Kristol (see
Exhibit 5.1).
24.1 -- Power of Attorney (see Signature Page).
27.1 -- Financial Data Schedule.
- ---------------
* To be filed by amendment.
(b) Financial Statement Schedules
All schedules are omitted because they are not required, are not applicable
or the information is included in our financial statements or notes thereto.
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under "Item
14 -- Indemnification of Directors and Officers" above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
II-4
83
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, on February 17, 2000.
LEXENT INC.
By: /s/ HUGH J. O'KANE, JR.
------------------------------------
Hugh J. O'Kane, Jr.
Chairman of the Board of Directors
POWER OF ATTORNEY AND SIGNATURES
We the undersigned officers and directors of Lexent Inc., hereby severally
constitute and appoint Hugh J. O'Kane, Jr. and Kevin M. O'Kane, and each of them
singly (with full power to each of them to act alone), our true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement (or any other Registration Statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or
his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities held on the dates indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ ALF T. HANSEN President and Chief Executive February 17, 2000
- --------------------------------------------------- Officer (Principal
Alf T. Hansen executive officer);
Director
/s/ JONATHAN H. STERN Executive Vice President and February 17, 2000
- --------------------------------------------------- Chief Financial Officer
Jonathan H. Stern (Principal financial and
accounting officer)
/s/ HUGH J. O'KANE, JR. Chairman of the Board of February 17, 2000
- --------------------------------------------------- Directors
Hugh J. O'Kane, Jr.
/s/ KEVIN M. O'KANE Vice Chairman and Chief February 17, 2000
- --------------------------------------------------- Operating Officer
Kevin M. O'Kane
/s/ WALTER C. TEAGLE III Executive Vice President and February 17, 2000
- --------------------------------------------------- Director
Walter C. Teagle III
II-5
84
SIGNATURES TITLE DATE
---------- ----- ----
/s/ PETER O. CRISP Director February 17, 2000
- ---------------------------------------------------
Peter O. Crisp
/s/ THOMAS W. HALLAGAN Director February 17, 2000
- ---------------------------------------------------
Thomas W. Hallagan
/s/ L. WHITE MATTHEWS Director February 17, 2000
- ---------------------------------------------------
L. White Matthews
/s/ RICHARD W. SMITH Director February 17, 2000
- ---------------------------------------------------
Richard W. Smith
II-6
85
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
1.1* -- Form of Underwriting Agreement.
3.1 -- Amended and Restated Certificate of Incorporation of
Registrant as amended.
3.2* -- Form of Registrant's Second Amended and Restated Certificate
of Incorporation to be effective upon the consummation of
this offering.
3.3 -- By Laws of Registrant.
3.4* -- Form of Registrant's Amended and Restated By-Laws to be
effective upon the consummation of this offering.
4.1* -- Specimen certificate for shares of Common Stock.
4.2 -- Registration Rights Agreement, dated as of July 23, 1998,
among Registrant and the investors named therein.
4.3 -- Stockholders Agreement, dated as of July 23, 1998, as
amended January 13, 2000, among Registrant and the
stockholders identified on Annex I thereto.
4.4 -- Agreement, dated July 20, 1998, by and among Registrant,
Hugh O'Kane Electric Co., Inc. and Denis J. O'Kane.
4.5 -- Voting Agreement, dated February 11, 2000, by and among
Registrant, Hugh J. O'Kane, Jr. and Kevin M. O'Kane.
5.1* -- Opinion of Reboul, MacMurray, Hewitt, Maynard & Kristol,
with respect to the legality of securities being registered.
10.1* -- Lexent Inc. and Its Subsidiaries Amended and Restated Stock
Option and Restricted Stock Purchase Plan.
10.2 -- Form of Stock Option Agreement pursuant to the Stock Option
and Restricted Stock Purchase Plan.
10.3 -- Credit Agreement, dated as of June 29, 1999, as amended
November , 1999, by and among Registrant and European
American Bank, as Administrative Agent, and the lenders
party thereto.
10.4 -- Amended and Restated Promissory Note, dated July 23, 1998,
between Registrant and Denis J. O'Kane.
10.5* -- Form of Indemnification Agreement between Lexent Inc. and
Directors thereof.
10.6 -- Employment Agreement, dated July 23, 1998, as amended
February 14, 2000, between Hugh O'Kane Jr. and Registrant.
10.7 -- Employment Agreement, dated July 23, 1998, as amended
February 14, 2000, between Kevin O'Kane and Registrant.
10.8 -- Employment Agreement, dated August 20, 1998, as amended
February 14, 2000, between Jonathan H. Stern and Registrant.
10.9 -- Employment Agreement, dated December 13, 1999, between
Joseph Haines and Registrant.
10.10 -- Employment Agreement, dated December 20, 1999, between Rif
K. Haffar and Registrant.
10.11 -- Employment Agreement, dated December 23, 1999, between
Victor P. DeJoy, Sr. and Registrant.
10.12 -- Employment Agreement, dated January 9, 2000, between Alf T.
Hansen and Registrant.
10.14* -- Engineer, Procure and Construct Contract, dated December 28,
1998, between Level 3 Communications, LLC and Registrant.
11.1 -- Statement Regarding Computation of Per Share Earnings.
86
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
21.1 -- Subsidiaries of the Company.
23.1 -- Consent of PriceWaterhouseCoopers LLP, independent
accountants.
23.2* -- Consent of Reboul, MacMurray, Hewitt, Maynard & Kristol (see
Exhibit 5.1).
24.1 -- Power of Attorney (see Signature Page).
27.1 -- Financial Data Schedule.
- ---------------
* To be filed by amendment.