1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16, 1999
REGISTRATION NO. 333-64663
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
NETWORK PLUS CORP.
(Exact Name of Registrant as Specified in its Charter)
------------------------
DELAWARE 4813
(State or Other Jurisdiction of (Primary Standard Industrial 04-3430576
Incorporation or Organization) Classification Code Number) (I.R.S. Employer Identification No.)
------------------------
234 COPELAND STREET, QUINCY, MASSACHUSETTS 02169; (617) 786-4000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
------------------------
JAMES J. CROWLEY, ESQ.
EXECUTIVE VICE PRESIDENT AND CHIEF OPERATING OFFICER
234 COPELAND STREET
QUINCY, MASSACHUSETTS 02169
(617) 786-4000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
------------------------
WITH A COPY TO:
JEFFREY N. CARP, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES 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,
check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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(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,
check the following box. [ ]
------------------------
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER BY ANY SELLING
STOCKHOLDER TO SELL OR THE SOLICITATION BY ANY SELLING STOCKHOLDER OF AN OFFER
TO BUY, NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH
SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED FEBRUARY 16, 1999
PROSPECTUS
NETWORK PLUS CORP.
58,276 SHARES
13.5% SERIES A CUMULATIVE PREFERRED STOCK DUE 2009
------------------------
This Prospectus relates to the resale of 58,276 shares (the "Preferred
Shares") of 13.5% Series A Cumulative Preferred Stock Due 2009 (the "Series A
Preferred Stock") of Network Plus Corp., a Delaware corporation ("Network Plus"
or the "Company"), by certain selling stockholders (the "Selling Stockholders").
The Selling Stockholders acquired the Preferred Shares in a transaction exempt
from registration under the Securities Act of 1933, as amended (the "Securities
Act"). The Preferred Shares may be sold from time to time by the Selling
Stockholders in brokers' transactions, in transactions with market makers, in
block placements, or otherwise, at market prices prevailing at the time of the
sale or at prices otherwise negotiated. See "Selling Stockholders" and "Plan of
Distribution".
The Company will not receive any of the proceeds from the sale of the
Preferred Shares by the Selling Stockholders. The Company has agreed to bear
certain expenses in connection with the registration of the Preferred Shares
being offered and sold by the Selling Stockholders.
Any broker-dealer that participates in a distribution of the Preferred
Shares and other participating broker-dealers and the Selling Stockholders may
be deemed to be "underwriters" within the meaning of the Securities Act, and any
profit from any such resale of Preferred Shares and any commissions or
concessions received by any such person may be deemed to be underwriting
compensation under the Securities Act.
Upon a sale of any Preferred Shares by a Selling Stockholder pursuant
hereto, (i) such Preferred Shares will have been registered under the Securities
Act and, therefore, such Preferred Shares will generally be freely transferable
by holders thereof and not bear a legend regarding restrictions on transfer,
(ii) holders of such Preferred Shares will not be entitled to certain rights of
the Selling Stockholders under the Registration Agreement (as defined), which
rights with respect to such Preferred Shares will terminate on sale of such
Preferred Shares and (iii) such Preferred Shares will not contain any provisions
regarding the payment of Special Dividends (as defined).
Dividends on each Preferred Share accrue from the date of original issuance
of such Preferred Share at a rate of 13.5% per annum of the Specified Amount (as
defined) and are payable quarterly in arrears on March 1, June 1, September 1
and December 1 of each year, commencing December 1, 1998. Dividends are payable
in cash, except that on each dividend payment date occurring on or prior to
September 1, 2003, dividends may be paid, at the Company's option, either in
cash or by allowing such dividends ("Accumulated Dividends") to be added to the
Specified Amount, which shall initially be equal to the liquidation preference.
(Continued on next page)
------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 8 FOR A DESCRIPTION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE PREFERRED SHARES.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1999
3
(Continued from front cover)
The Preferred Shares will be redeemable at the option of the Company, in
whole or in part, at any time on or after September 1, 2003, at the redemption
prices set forth herein, plus accumulated and unpaid dividends thereon, if any,
to the redemption date. The Preferred Shares will be subject to mandatory
redemption on September 1, 2009. In addition, the Company is required to use all
or a specified portion of the proceeds of any Senior Notes Offering or Public
Equity Offering (each as defined) to redeem the Preferred Shares at the
redemption prices and upon the terms set forth herein. See "Description of the
Series A Preferred Stock -- Optional Redemption" and "Description of the Series
A Preferred Stock -- Mandatory Redemption".
The Series A Preferred Stock ranks senior to all other classes of equity
securities of the Company outstanding upon consummation of the Initial Offering
(as defined below). The Company may not authorize any new class of Parity Stock
(as defined) or Senior Stock (as defined) without the approval of the holders of
at least a majority of the shares of Series A Preferred Stock then outstanding,
voting or consenting, as the case may be, as one class. The Series A Preferred
Stock ranks junior to all debt and other liabilities of the Company and any
subsidiary of the Company. As of September 30, 1998, reflecting the Initial
Offering (as defined below), (i) the total liabilities of the Company, including
trade payables, were $23.6 million and (ii) the total liabilities of the
Company's subsidiary, including trade payables, were $23.6 million,
approximately $4.0 million of which represented secured obligations. On October
7, 1998, the Company entered into a New Revolving Credit Facility (as defined),
which provides for borrowings of up to $60.0 million. See "Capitalization" and
"Description of Certain Indebtedness". There are currently no borrowings
outstanding under the New Revolving Credit Facility.
The Company is a holding company that conducts substantially all its
operations through subsidiaries, and the Preferred Shares are effectively
subordinated to all obligations of the Company's subsidiaries (including trade
payables). The Certificate of Designation permits the Company and its
subsidiaries to incur substantial amounts of additional debt and other
liabilities. See "Description of the Series A Preferred Stock".
The Preferred Shares were originally issued and sold on September 3, 1998
in a transaction exempt from registration under the Securities Act (the "Initial
Offering"). Accordingly, the Preferred Shares may not be reoffered, resold or
otherwise pledged, hypothecated or transferred in the United States unless
registered under the Securities Act or unless an applicable exemption from the
registration requirements of the Securities Act is available. The Preferred
Shares are being registered under the Securities Act for sale hereunder to
satisfy certain obligations of the Company under the Registration Agreement (as
defined). Pursuant to the Registration Agreement, the Company is generally
required to maintain the effectiveness of the registration statement under the
Securities Act of which this Prospectus is a part until the earlier of (i) two
(2) years from the date of such effectiveness or (ii) the date on which all
Preferred Shares have been sold pursuant to such registration statement (the
"Expiration Date").
The Preferred Shares constitute a new issue of securities with no
established trading market. Any Preferred Shares not sold pursuant hereto prior
to the Expiration Date will remain outstanding. To the extent that Preferred
Shares are sold pursuant hereto prior to the Expiration Date, a holder's ability
to sell Preferred Shares not sold pursuant hereto could be adversely affected,
and the holders of any such Preferred Shares will continue to be subject to the
existing restrictions on transfer and the Company will have no further
obligation to such holders to provide for the registration under the Securities
Act of the Preferred Shares. See "Registration Rights". No assurance can be
given as to the liquidity of the trading market for the Preferred Shares.
4
NOTICE TO INVESTORS
Selling Stockholders wishing to sell Preferred Shares pursuant hereto may
be required to provide certain information to the Company concerning the plan of
distribution. Such Selling Stockholders must also comply with the prospectus
delivery requirements of the Securities Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Selling Stockholder
in connection with resales of Preferred Shares. The Company has agreed to make
this Prospectus (as it may be amended or supplemented) available to any such
Selling Stockholder that requests copies of such Prospectus for use in
connection with any such resale. See "Plan of Distribution". The Company
believes that none of the Selling Stockholders is an "affiliate" (as such term
is defined in Rule 405 under the Securities Act) of the Company.
There has been no public market for the Preferred Shares. There can be no
assurance as to the liquidity of any markets that may develop for the Preferred
Shares, the ability of holders to sell the Preferred Shares, or the price at
which holders would be able to sell the Preferred Shares. The Company does not
intend to apply for listing of the Preferred Shares for trading on any
securities exchange or for inclusion of the Preferred Shares in any automated
quotation system. The National Association of Securities Dealers, Inc. ("NASD")
has designated the Preferred Shares as securities eligible for trading in the
Private Offerings, Resales and Trading through Automatic Linkages ("PORTAL")
market of the NASD and the Company has been advised that Goldman, Sachs & Co.,
Lehman Brothers Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(collectively, the "Initial Purchasers") have heretofore acted as market makers
for the Preferred Shares. The Company has been advised by each of the aforesaid
market makers that it currently intends to continue to make a market in the
Preferred Shares. Future trading prices of the Preferred Shares will depend on
many factors, including, among other things, prevailing interest rates, the
Company's operating results and the market for similar securities. Historically,
the market for securities similar to the Preferred Shares has been subject to
disruptions that have caused substantial volatility in the prices of such
securities. There can be no assurance that any market for the Preferred Shares,
if such market develops, will not be subject to similar disruptions. See "Risk
Factors -- Absence of Public Market".
The Company will not receive any proceeds from, and has agreed to bear
certain expenses of, the sale of the Preferred Shares by the Selling
Stockholders.
NO OFFER TO SELL IS BEING MADE BY ANY SELLING STOCKHOLDER, NOR WILL ANY
SELLING STOCKHOLDER ACCEPT ANY OFFER TO PURCHASE, IN ANY JURISDICTION IN WHICH
ANY SUCH OFFER OR SALE WOULD NOT BE IN COMPLIANCE WITH THE SECURITIES OR BLUE
SKY LAWS OF SUCH JURISDICTION.
i
5
FORWARD-LOOKING STATEMENTS
This Prospectus includes "forward-looking statements", including statements
containing the words "believes", "anticipates", "expects" and words of similar
import. All statements other than statements of historical fact included in this
Prospectus including, without limitation, such statements under "Summary", "Risk
Factors", "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business" and elsewhere herein, regarding the
Company or any of the transactions described herein, including the timing,
financing, strategies and effects of such transactions and the Company's growth
strategy and anticipated growth, are forward-looking statements. Important
factors that could cause actual results to differ materially from expectations
are disclosed in this Prospectus, including, without limitation, in conjunction
with the forward-looking statements in this Prospectus and/or under "Risk
Factors". The Company does not intend to update these forward-looking
statements.
------------------------
Network Plus and the Network Plus logo are registered service marks of the
Company and Simplicity Pricing is a service mark of the Company. This Prospectus
also makes reference to trade names, trademarks and service marks of other
companies, which are the property of their respective owners.
------------------------
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-1 (the "Registration Statement", which term shall include all amendments,
exhibits, annexes and schedules thereto) pursuant to the Securities Act, and the
rules and regulations promulgated thereunder, covering the Preferred Shares.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Statements made in this Prospectus
as to the contents of any contract, agreement or other document referred to in
the Registration Statement are not necessarily complete. With respect to each
such contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith is required to file reports and other
information with the Commission. All reports and other information filed by the
Company with the Commission may be inspected without charge at the public
reference facilities maintained by the Commission at 450 Fifth Street, NW,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, New York 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such documents can be obtained at the public reference section of the
Commission, 450 Fifth Street, NW, Washington, D.C. 20549, at prescribed rates.
The Commission maintains a Web site (http://www.sec.gov) that contains reports,
proxy and information statements and other information regarding registrants,
including the Company, that file electronically with the Commission.
While any Preferred Shares remain outstanding, the Company will make
available, upon request, to any holder and any prospective purchaser of
Preferred Shares the information required pursuant to Rule 144A(d)(4) under the
Securities Act during any period in which the Company is not subject to Section
13 or 15(d) of the Exchange Act.
Potential investors may also obtain a copy of the Certificate of
Designation governing the Series A Preferred Stock and the Exchange and
Registration Rights Agreement referred to herein by writing to the Company at
234 Copeland Street, Quincy, Massachusetts 02169, Attention: Chief Financial
Officer.
------------------------
THE COMPANY WAS INCORPORATED IN DELAWARE IN JULY 1998, AND ITS WHOLLY OWNED
OPERATING SUBSIDIARY, NETWORK PLUS, INC., WAS INCORPORATED IN MASSACHUSETTS IN
MARCH 1990. THE ADDRESS OF THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE IS 234
COPELAND STREET, QUINCY, MASSACHUSETTS 02169, AND ITS TELEPHONE NUMBER IS (617)
786-4000.
ii
6
SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and financial data, including
the financial statements and related notes, appearing elsewhere in this
Prospectus. Unless otherwise indicated, all references to the Company or Network
Plus refer to Network Plus Corp., a Delaware corporation, and its wholly-owned
subsidiary Network Plus, Inc., a Massachusetts corporation ("NPI"). Please refer
to the Glossary for the definitions of certain terms used herein and elsewhere
in this Prospectus.
THE COMPANY
OVERVIEW
Network Plus, founded in 1990, is a facilities-based integrated
communications provider ("ICP") offering switched long distance, data and
enhanced telecommunications services. The Company's customers consist primarily
of small and medium-sized businesses located in major markets in the
Northeastern and Southeastern regions of the United States. The Company also
provides international wholesale transport and termination services to major
domestic and international telecommunication carriers. In addition, the Company
intends to offer local services on a commercial basis beginning in late 1998. As
of September 30, 1998, the Company served over 39,000 customers representing in
excess of 180,000 access lines and 30,000 toll-free numbers. All customers are
directly invoiced by the Company on a Network Plus bill. As of September 30,
1998, the Company had a 201-person sales force located in 12 regional offices,
and in 1997 had total revenue of $98 million.
The Company purchases network components where justified by the volume of
originating and terminating traffic and leases components where it has a more
limited volume of such traffic. The Company has switches in Quincy,
Massachusetts and Orlando, and intends to add switches throughout the second
half of 1998 and continuing through 1999 in Atlanta, Chicago, Los Angeles and
New York City as well as multiple local traffic switches in the Northeastern and
Southeastern regions of the United States. In September 1998, over 60% of the
Company's revenue was generated by customer traffic carried on its network, and
the Company expects this percentage to increase as the Company further expands
its facilities-based infrastructure. The Company recently entered into two
20-year indefeasible right-of-use ("IRU") agreements pursuant to which it
acquired 625 route miles of dark fiber (1,830 digital fiber miles), that, when
fully deployed and activated, will form a redundant fiber ring connecting major
markets throughout New England and the New York metropolitan area and provide
the Company with significant transmission capacity.
The Company believes that, because of its large and highly focused sales
force and superior customer support, the Company will be successful in rapidly
acquiring new customers, cross-selling local services to its existing long
distance customers, continuing to migrate "off-net" long distance customers to
its network, cross-selling enhanced products and services and maintaining a high
rate of customer retention. The Company experienced a compounded annual growth
rate in customers in the three-year period ended December 31, 1997 of 68%.
The Company's business strategy is to leverage its eight-year operating
history, existing customer base and substantial in-region experience to (i) be a
one-stop ICP offering comprehensive bundled voice and data solutions, (ii)
acquire and retain market share through its direct sales force and focused
customer service, (iii) enhance its facilities-based infrastructure where
economically advantageous and continue the migration of traffic to its network,
(iv) build and retain market share through advanced technologies and an advanced
operational support system, (v) target the market of small and medium-sized
businesses, which the Company believes to be underserved, with a focus on the
Northeastern and Southeastern regions of the United States, (vi) increase
international wholesale sales and (vii) expand through strategic acquisitions
and alliances.
1
7
RISK FACTORS
An investment in the Series A Preferred Stock involves a high degree of
risk. Investors should carefully consider the matters set forth under "Risk
Factors".
THE SERIES A PREFERRED STOCK
This Prospectus covers 41,350 outstanding Preferred Shares and 16,926
shares that may be issued as dividends on Preferred Shares. Upon a sale of any
Preferred Shares by a Selling Stockholder pursuant hereto, (i) such Preferred
Shares will have been registered under the Securities Act and, therefore, such
Preferred Shares will generally be freely transferable by holders thereof and
not bear a legend regarding restrictions on transfer, (ii) holders of such
Preferred Shares will not be entitled to certain rights of the Selling
Stockholders under the Registration Agreement, which rights with respect to such
Preferred Shares will terminate on sale of such Preferred Shares and (iii) such
Preferred Shares will not contain any provisions regarding the payment of
Special Dividends. See "Description of the Series A Preferred Stock".
Issuer........................ Network Plus Corp.
Securities Offered............ The Selling Stockholders are offering up to
58,276 shares of 13.5% Series A Cumulative
Preferred Stock Due 2009, par value $.01 per
share.
Liquidation Preference........ $1,000 per share.
Dividends..................... Dividends on the Series A Preferred Stock
accrue at a rate of 13.5% per annum of the
Specified Amount thereof and will be payable
quarterly in arrears on March 1, June 1,
September 1 and December 1 of each year,
commencing December 1, 1998. Dividends are
payable in cash, except that on each dividend
payment date occurring on or prior to September
1, 2003, dividends may be paid, at the
Company's option, either in cash or by allowing
such dividends ("Accumulated Dividends") to be
added to the Specified Amount, which shall
initially be equal to the liquidation
preference. It is not anticipated that the
Company will pay any dividends in cash for any
period ending on or prior to September 1, 2003.
Ranking....................... The Series A Preferred Stock ranks senior to
all other classes of equity securities of the
Company outstanding upon consummation of this
Offering. The Company may not authorize any new
class of Parity Stock or Senior Stock without
the approval of the holders of at least a
majority of the shares of Series A Preferred
Stock then outstanding, voting or consenting,
as the case may be, as one class. See
"Description of the Series A Preferred
Stock -- Ranking". The Series A Preferred Stock
ranks junior to all indebtedness and other
liabilities of the Company and any subsidiary
of the Company. As of September 30, 1998,
reflecting the Initial Offering, (i) the total
liabilities of the Company, including trade
payables, were $23.6 million and (ii) the total
liabilities of the Company's subsidiary,
including trade payables, were $23.6 million,
approximately $4.0 million of which represented
secured obligations. On October 7, 1998, the
Company entered into a New Revolving Credit
Facility (as defined), which provides for
borrowings of up to $60 million. There are
currently no borrowings outstanding under the
New Revolving Credit Facility. See
"Capitalization" and "Description of Certain
Indebtedness".
2
8
Optional Redemption........... The Series A Preferred Stock will be redeemable
at the option of the Company, in whole or in
part, at any time on or after September 1, 2003
at the redemption prices set forth herein plus
accumulated and unpaid dividends, if any, to
the date of redemption.
Mandatory Redemption.......... The Series A Preferred Stock is subject to
mandatory redemption at its Specified Amount,
plus, without duplication, accumulated and
unpaid dividends, if any, on September 1, 2009
out of any funds legally available therefor. If
the Company consummates a Senior Notes Offering
(as defined), the net proceeds of which
(excluding underwriting or other placement fees
and proceeds placed in escrow at the closing
thereof pursuant to the terms of such offering)
received by the Company exceed $100 million,
the Company must redeem the outstanding Series
A Preferred Stock with the net proceeds of such
offering at a redemption price of 108% of the
Specified Amount thereof, plus, without
duplication, accumulated and unpaid dividends
to the date of redemption. If the Company
consummates any Public Equity Offerings (as
defined) on or before September 1, 2001, the
Company must apply the first $25 million of net
proceeds from such Public Equity Offering or
Offerings and 50% of each dollar of net
proceeds in excess of $25 million (excluding
underwriting or other placement fees and
calculated on a cumulative basis beginning with
the first such Public Equity Offering) to
redeem the Series A Preferred Stock at the
prices set forth herein plus accumulated and
unpaid dividends, if any, to the date of
redemption.
Change of Control............. In the event of a Change of Control, holders of
the Series A Preferred Stock will have the
right to require the Company to purchase their
Series A Preferred Stock, in whole or in part,
at a price equal to 101% of the Specified
Amount thereof, plus, without duplication,
accumulated and unpaid dividends, if any, to
the date of purchase.
Voting Rights................. Except as described below, and other than as
otherwise required by Delaware law, holders of
the Series A Preferred Stock will have no
voting rights. The Certificate of Designation
will provide that, upon the failure of the
Company (1) to pay dividends for six or more
dividend periods (whether or not consecutive),
(2) to satisfy any mandatory redemption
obligation with respect to the Series A
Preferred Stock, (3) to comply with the
covenants set forth in the Certificate of
Designation or (4) to make certain payments on
certain indebtedness, the holders of the
outstanding shares of Series A Preferred Stock,
voting together as a class, will be entitled to
elect to serve on the Board of Directors the
lesser of (x) two additional members of the
Board and (y) that number of directors
constituting 25% of the members of the Board;
and the size of the Board will be immediately
and automatically increased by such number. See
"Description of the Series A Preferred
Stock -- Voting Rights".
3
9
Certain Covenants............. The Certificate of Designation contains certain
covenants that, among other things, will limit
the ability of the Company and its subsidiaries
to incur additional indebtedness, issue stock
in subsidiaries, pay dividends or make other
distributions in respect of Junior Stock,
repurchase Junior Stock, make certain
investments, enter into certain transactions
with affiliates, sell assets of the Company and
its subsidiaries, and enter into certain
mergers and consolidations.
Registration Covenant......... Pursuant to the Registration Agreement, the
Company has agreed to use its best efforts to
cause the Preferred Shares to be registered
under the Securities Act so as to permit
resales by the Selling Stockholders. If the
Company is not in compliance with its
obligations under the Registration Agreement,
Special Dividends will accrue on the Series A
Preferred Stock under certain circumstances. If
the registration statement under the Securities
Act of which this Prospectus is a part is
declared effective by the Commission on the
terms and within the period contemplated by
this Prospectus, no Special Dividends will
accrue. See "Description of the Series A
Preferred Stock -- Registration Covenant".
Warrants...................... The Series A Preferred Stock was initially
issued as a part of a Unit. Each Unit consisted
of (i) one share of Series A Preferred Stock,
(ii) 7.75 Initial Warrants and (iii) 15
Contingent Warrants. Each Warrant entitles the
holder thereof to purchase one share of Common
Stock from the Company at an exercise price of
$0.01 per share, subject to adjustment. The
Contingent Warrants are currently held in
escrow for the benefit of holders of the Series
A Preferred Stock. On each Contingent Warrant
Release Date, the Contingent Warrant Escrow
Agent will release the Applicable Percentage of
the Contingent Warrants and any other
Contingent Warrant Escrow Property on a pro
rata basis (for purposes of which any shares of
Series A Preferred Stock redeemed or
repurchased prior to such date by the Company
shall be deemed to be issued and outstanding
and held by the Company) to the holders of the
issued and outstanding shares of Series A
Preferred Stock on the immediately preceding
Contingent Warrant Release Record Date.
Contingent Warrants not released to holders
will be canceled. The Series A Preferred Stock
and the Initial Warrants will trade separately
as of the date on which the registration
statement with respect to the Preferred Shares
is declared effective. Neither the Initial
Warrants nor the Contingent Warrants may be
traded prior to their registration under the
Securities Act or pursuant to an applicable
exemption therefrom. The Company has no present
intention to register either the Initial
Warrants or the Contingent Warrants under the
Securities Act. See "Description of the Series
A Preferred Stock", "Description of the
Warrants" and "Description of Capital Stock".
For additional information regarding the Series A Preferred Stock, see
"Notice to Investors", "Description of the Series A Preferred Stock" and
"Federal Income Tax Considerations".
4
10
SUMMARY FINANCIAL DATA
(in thousands, except per share data)
The following table presents summary financial data for the years ended
December 31, 1993, 1994, 1995, 1996 and 1997 and the nine month periods ended
September 30, 1997 and 1998. The financial and balance sheet data for the years
ending December 31, 1995, 1996 and 1997 have been derived from financial
statements (including those set forth elsewhere in this Prospectus) that have
been audited by PricewaterhouseCoopers LLP, independent accountants. The
financial statements as of December 31, 1996 and 1997 and for each of the years
in the three year period ended December 31, 1997 and the report of
PricewaterhouseCoopers LLP relating thereto are included elsewhere in this
Prospectus, and the summary financial data presented below are qualified in
their entirety by reference thereto. The financial data presented for the years
ended December 31, 1993 and 1994 and the nine month periods ended September 30,
1997 and September 30, 1998 are derived from the unaudited financial statements
of the Company and in the opinion of management include all adjustments
(consisting only of normal recurring adjustments) necessary for a fair
presentation of the Company's results of operations and financial condition for
those periods. The data for the nine month period ended September 30, 1998 are
not necessarily indicative of results for the year ending December 31, 1998 or
indicative of future periods. The summary financial data should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the financial statements, including the notes
thereto, of the Company appearing elsewhere in this Prospectus.
For periods prior to the formation of the Company on July 15, 1998, the
financial data reflect the financial statements of Network Plus, Inc., the
Company's wholly-owned subsidiary, as it was the sole operating entity.
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------- -----------------
1993 1994 1995 1996 1997 1997 1998
------- ------- ------- ------- ------- ------- -------
STATEMENTS OF OPERATIONS DATA:
Revenue......................................... $14,427 $30,754 $49,024 $75,135 $98,209 $73,921 $79,588
Costs of services............................... 7,120 16,061 35,065 57,208 78,106 58,193 59,234
Selling, general and administrative............. 7,233 11,631 17,697 19,230 25,704 16,370 20,099
Depreciation and amortization................... 67 180 276 533 994 581 1,449
------- ------- ------- ------- ------- ------- -------
Operating income (loss)......................... 7 2,882 (4,014) (1,836) (6,595) (1,223) (1,194)
Interest income................................. 13 37 202 95 86 77 62
Interest expense................................ (5) (2) (40) (313) (557) (330) (781)
Other income, net............................... 30 102 7,859 3,529 3,917 3,234 69
Provision for income taxes...................... (3) (167) (312) (60) (42) (42) (430)
------- ------- ------- ------- ------- ------- -------
Net income (loss)............................... 42 2,852 3,695 1,415 (3,191) 1,969 (2,274)
Preferred stock dividends and accretion......... -- -- -- -- -- -- (498)
------- ------- ------- ------- ------- ------- -------
Net income (loss) applicable to common
stockholders.................................. $ 42 $ 2,852 $ 3,695 $ 1,415 $(3,191) $ 1,969 $(2,772)
======= ======= ======= ======= ======= ======= =======
Net income (loss) per share applicable to common
stockholders
Basic and diluted............................. $ -- $ 0.29 $ 0.37 $ 0.14 $ (0.32) $ 0.20 $ (0.28)
======= ======= ======= ======= ======= ======= =======
Pro forma net income (loss) per share applicable
to common stockholders
Basic and diluted............................. $ -- $ 0.18 $ 0.24 $ 0.09 $ (0.21) $ 0.12 $ (0.17)
======= ======= ======= ======= ======= ======= =======
Weighted average shares outstanding
Basic and diluted............................. 10,000 10,000 10,000 10,000 10,000 10,000 10,000
======= ======= ======= ======= ======= ======= =======
5
11
DECEMBER 31,
----------------------------------------------- SEPTEMBER 30,
1993 1994 1995 1996 1997 1998(1)
------- ------- ------- ------- ------- -------------
BALANCE SHEET DATA:
Cash and cash equivalents......................... $ 215 $ 1,232 $ 1,608 $ 2,241 $ 1,502 $26,804
Current assets.................................... 2,545 9,264 16,441 19,771 28,521 43,122
Property and equipment, net....................... 819 1,435 1,507 3,075 6,957 10,659
Working capital................................... 1,592 4,388 2,369 1,621 (3,128) 21,352
Total assets...................................... 4,647 11,264 18,005 22,915 35,581 54,177
Other long-term obligations....................... 14 24 11 664 3,623 1,875
Redeemable Series A Preferred Stock (2)........... -- -- -- -- -- 33,639
Total stockholders' equity (deficit).............. 539 2,117 3,922 4,101 309 (3,107)
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------- ---------------
1993 1994 1995 1996 1997 1997 1998
------ ------- ------ ------ ------ ------ ------
OTHER FINANCIAL DATA:
Capital expenditures............................. 815 813 860 2,135 3,363 3,035 5,160
EBITDA (3)....................................... 104 3,164 4,121 2,226 (1,684) 2,922 386
Net cash provided by (used for) operating
activities..................................... 1,689 1,904 2,463 (316) 184 2,538 (1,867)
Net cash provided by (used for) investing
activities..................................... (1,949) 368 (184) (647) (6,927) (6,442) 4,355
Net cash provided by (used for) financing
activities..................................... 19 (1,255) (1,903) 1,596 6,004 2,525 22,814
Ratio of earnings to combined fixed charges
(4)............................................ 1.5x 23.4x 20.4x 3.7x (2.9)x 5.0x (0.2)x
- ---------------
(1) Reflects (i) the Initial Offering (after deducting discounts and offering
expenses payable by the Company totaling $2.5 million) and the application
of the net cash proceeds therefrom, including the repayment of $9.8 million
of borrowings under the Former Bank Credit Facility (see "Description of
Certain Indebtedness"), (ii) the payment of a $5.0 million dividend to the
Company's stockholders and the reinvestment of $1.9 million by one of the
Company's stockholders (representing such stockholder's approximate net
after-tax proceeds of the dividend) in the form of a long-term loan to the
Company and (iii) the tax effect of the Company's conversion from an S
Corporation to a C Corporation.
(2) Series A Preferred Stock with an initial liquidation preference of $40.0
million was issued by the Company as part of the Units offered in the
Initial Offering. Each Unit consists of one share of Series A Preferred
Stock, 7.75 Initial Warrants and 15 Contingent Warrants, each Warrant to
purchase one share of Common Stock. A value of $4.65 million was allocated
to the Warrants, representing the portion of the purchase price of the Units
allocated to the Initial Warrants, less $0.3 million of the costs associated
with the Initial Offering allocable to the Initial Warrants. A de minimis
value was ascribed to the Contingent Warrants. No assurance can be given
that the value allocated to the Initial Warrants will be indicative of the
price at which the Initial Warrants may actually trade. Costs of $2.2
million associated with the Initial Offering have been allocated to the
Series A Preferred Stock.
(3) EBITDA consists of net income (loss) before net interest, income taxes,
depreciation and amortization. Management believes that EBITDA is a useful
financial performance measure for comparing companies in the
telecommunications industry in terms of operating performance, leverage, and
ability to incur and service debt, because it provides an alternative
measure of cash flow from operations. EBITDA should not be considered in
isolation from, or as a substitute for, net income (loss), net cash provided
by (used for) operating activities or other consolidated income or cash flow
statement data presented in accordance with generally accepted accounting
principles ("GAAP") or as a measure of profitability or liquidity. EBITDA
does not reflect working capital changes and includes non-interest
components of other income (expense), most of which are non-recurring. These
items may be considered significant components in understanding and
assessing the Company's results of operations and
6
12
cash flows. EBITDA may not be comparable to similarly titled amounts
reported by other companies.
(4) For purposes of calculating the ratio of earnings to combined fixed charges,
"earnings" represent net income (loss) before income taxes plus combined
fixed charges, and combined fixed charges consist of interest expense,
preferred stock dividends and accretion of issuance costs and discount, and
the interest portion of operating lease rentals. For the year ended December
31, 1997, earnings were insufficient to cover combined fixed charges by $3.1
million. For the nine months ended September 30, 1998, earnings were
insufficient to cover combined fixed charges by $1.8 million.
7
13
RISK FACTORS
In addition to the other information in this Prospectus, prospective
investors should consider carefully the following risk factors:
NEGATIVE CASH FLOW AND OPERATING LOSSES
The Company had operating losses in each of the years ending December 31,
1997, 1996 and 1995 and negative cash flow in the year ended December 31, 1997,
and there can be no assurance that the Company will achieve or sustain
profitability or generate positive cash flow in the future. The Company expects
to incur significant expenditures in the future in connection with the
acquisition, development and expansion of its network, information technology
systems, employee base, services and customer base.
To the extent the Company's cash needs exceed the Company's available cash
and existing borrowing availability, the funding of these expenditures will be
dependent upon the Company's ability to raise substantial financing. The Company
estimates that, for 1998 and 1999, capital required for expansion of its
infrastructure and services and to fund negative cash flow will be approximately
$140 million. At December 31, 1997, the Company had approximately $1.5 million
in cash and cash equivalents available for such purposes. In addition, the
Company continues to consider potential acquisitions or other arrangements that
may fit the Company's strategic plan. Any such acquisitions or arrangements are
likely to require additional equity or debt financing, which the Company will
seek to obtain as required and may also require that the Company obtain the
consent of its debt holders. The Company may be required to apply all or a
portion of any such financing to redeem all or a portion of the Series A
Preferred Stock. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Business -- Business Strategy".
SUBSTANTIAL FUTURE CAPITAL REQUIREMENTS; NEED FOR ADDITIONAL FINANCING;
SUBSTANTIAL LEVERAGE
The Company's ability to meet its projected growth is dependent upon its
ability to secure substantial additional financing in the future. The Company
believes that its current cash resources and available cash from the New
Revolving Credit Facility (see "Description of Certain Indebtedness"), together
with the proceeds of the Initial Offering, will be sufficient to fund the
Company's operating losses and planned capital expenditures through the 18-month
term of the New Revolving Credit Facility. The Company does not expect to have
sufficient available cash to repay such facility at maturity. Accordingly, the
Company expects that it will be required to refinance the full $60.0 million of
such facility. The Company currently expects to have additional financing
requirements beyond the maturity date of the New Revolving Credit Facility. To
meet its future financing requirements, sources of funding may include public
offerings or private placements of equity or debt securities, bank loans and
additional capital contributions from new or existing stockholders. The Company
may be required to apply all or a portion of any such financing to redeem all or
a portion of the Series A Preferred Stock. There can be no assurance that
additional financing will be available to the Company or, if available, that it
can be obtained on a timely basis, on terms acceptable to the Company, and
within the limitations contained in the Company's commercial lending agreements
and the Certificate of Designation. Failure to obtain such financing could
result in the delay or abandonment of the Company's development and expansion
plans and could have a material adverse effect on the Company.
The Company's business plan for the next 18 months is to a large extent
dependent upon the availability of the New Revolving Credit Facility. There can
be no assurance that the New Revolving Credit Facility or the financing
available thereunder will remain available to the Company through any given
period. In the event the New Revolving Credit Facility ceases to be available to
the Company, the Company believes that its cash resources will be sufficient to
fund the Company's operating losses and capital expenditures for only a limited
time. In such event, the Company would be unable to implement its growth
strategy in accordance with its projected schedule, if at all. See "Busi-
8
14
ness -- Growth Strategy". Accordingly, the failure of the Company to maintain
the availability of such facility would have a material adverse effect on the
business and prospects of the Company.
After giving effect to proposed borrowings under the New Revolving Credit
Facility, the Company will have a significant amount of indebtedness
outstanding. In addition, as a result of its growth strategy, the Company
expects to incur additional indebtedness in the future. The Company's ability to
make cash payments with respect to its outstanding indebtedness and the Series A
Preferred Stock, and to repay its obligations on such indebtedness and preferred
stock at maturity, will depend on its future operating performance, which will
be affected by prevailing economic conditions and financial, business and other
factors, certain of which are beyond the Company's control. On or prior to
September 1, 2003, the Company may pay dividends on the Series A Preferred Stock
by allowing such dividends to be added to the Specified Amount of the Series A
Preferred Stock. It is not anticipated that the Company will pay any dividends
in cash for any period ending on or prior to September 1, 2003. Accordingly, the
Specified Amount of the Series A Preferred Stock and the cash dividend
obligation in respect thereof may increase significantly. If the Company is
unable to service its indebtedness or other obligations, it will be forced to
examine alternative strategies that may include actions such as reducing or
delaying capital expenditures, restructuring or refinancing its indebtedness or
preferred stock, or seeking additional debt or equity financing. There can be no
assurance that any of these strategies could be effected on satisfactory terms,
if at all.
The degree to which the Company is leveraged could have important
consequences to the holders of the Securities, including the following: (i) the
Company will have significant and increasing cash interest expense and
significant principal repayment obligations with respect to outstanding
indebtedness; (ii) the Company's degree of leverage and related debt service
obligations could limit its ability to plan for, and make it more vulnerable
than some of its competitors to the effects of, an economic downturn or other
adverse developments; (iii) any cash flow from the operations of the Company may
need to be dedicated to debt service payments and might not be available for
other purposes; and (iv) the Company's ability to obtain additional financing in
the future for working capital, capital expenditures, debt service requirements
or other purposes could be impaired. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and "Business -- Business
Strategy".
HOLDING COMPANY STRUCTURE
The Company is a holding company with no material sources of income or
assets other than the stock of its subsidiary, and the Securities will be
obligations exclusively of the Company. Since all of the Company's operations
are conducted through its subsidiary, the Company's cash flow and its ability to
meet its own obligations, including payment of dividends on the Series A
Preferred Stock, are dependent upon the earnings of its subsidiary and the
distributions of those earnings to the Company, or upon loans or other payments
of funds made by such subsidiary to the Company. The Company's subsidiary is a
separate and distinct legal entity and will have no obligation, contingent or
otherwise, to pay any dividends or make any other distributions to the Company
or to otherwise pay amounts due with respect to the Series A Preferred Stock or
to make funds available for such payments. Future debt instruments of the
Company's subsidiary likely will impose significant restrictions that affect,
among other things, the ability of the Company's subsidiary to pay dividends or
make loans, advances or other distributions to the Company. The Certificate of
Designation permits the Company's subsidiaries to enter into agreements
containing such restrictions. See "Description of Certain Indebtedness". The
ability of the Company's subsidiary to pay dividends and make other
distributions also will be subject to, among other things, applicable state laws
and regulations.
The Series A Preferred Stock will be structurally subordinated to all
existing and future indebtedness, trade payables, preferred stock and other
obligations of the Company's subsidiary (including, without limitation, the New
Revolving Credit Facility). Therefore, the Company's right
9
15
and the rights of its creditors, including the holders of the Series A Preferred
Stock, to participate in the assets of the subsidiary upon the subsidiary's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors and holders of preferred stock, if any, except to the
extent that the Company may itself be a creditor with recognized claims against
the subsidiary, in which case the claims of the Company would still be
effectively subordinated to any security interests in or mortgages or other
liens on the assets of such subsidiary and would be subordinate to any
indebtedness of the subsidiary senior to that held by the Company. As of
September 30, 1998, reflecting the Initial Offering, the total liabilities of
the Company, including trade payables, were $23.6 million, and (ii) the total
liabilities of the Company's subsidiary, including trade payables, were $23.6
million, approximately $4.0 million of which represented secured obligations. On
October 7, 1998, the Company entered into the New Revolving Credit Facility,
which provides for borrowings up to $60.0 million. There are currently no
borrowings outstanding under the New Revolving Credit Facility. See "Description
of Certain Indebtedness". The Certificate of Designation limits, but does not
prohibit, the incurrence of additional indebtedness by the Company and its
subsidiary. Therefore, both the Company and its subsidiary will retain the
ability to incur substantial additional indebtedness, and the Company expects
that it and its subsidiary may incur substantial additional indebtedness in the
future.
ABILITY TO PAY DIVIDENDS ON THE SERIES A PREFERRED STOCK
The ability of the Company to pay any dividends is subject to applicable
provisions of state law, and its ability to pay cash dividends on the Series A
Preferred Stock will be subject to the terms of any indebtedness of the Company
then outstanding. The ability of the Company to pay cash dividends is dependent
upon the receipt of cash from its Subsidiary. See "Risk Factors -- Holding
Company Structure". The ability of the Company to pay cash dividends is also in
part dependent upon the continued availability of the New Revolving Credit
Facility, and there can be no assurance that such facility will remain in
effect. See "Risk Factors -- Substantial Future Capital Requirements; Need for
Additional Financing; Substantial Leverage".
Under Delaware law the Company is permitted to pay dividends on its capital
stock, including the Series A Preferred Stock, only out of its surplus, or in
the event that it has no surplus, out of its net profits for the year in which a
dividend is declared or for the immediately preceding year. Surplus is defined
as the excess of a company's total assets over the sum of its total liabilities
plus the par value of its outstanding capital stock. In order to pay dividends
in cash, the Company must have surplus or net profits equal to the full amount
of the cash dividends at the time such dividend is declared. Delaware law
permits the Board of Directors of the Company to revalue the Company's assets
and liabilities from time to time to their fair market value in order to create
surplus. The Company cannot predict what the value of its assets or the amount
of its liabilities will be in the future, nor the amounts of its net profits,
and, accordingly, there can be no assurance that the Company will be able to pay
cash dividends on the Series A Preferred Stock.
TAX CONSEQUENCES OF DISTRIBUTIONS WITH RESPECT TO THE SERIES A PREFERRED STOCK
It is anticipated that the redemption price of the Series A Preferred Stock
will exceed its issue price (i.e., the portion of the purchase price of a Unit
sold in the Initial Offering that was initially allocated to the Series A
Preferred Stock). As a result, a holder will be required to treat such excess as
a series of constructive distributions on the Series A Preferred Stock occurring
over the term of such stock. The Company intends to treat the redemption price
as the amount that will be paid upon retirement of the Series A Preferred Stock
on September 1, 2009. As a result, the difference between the issue price of the
Series A Preferred Stock and its redemption price on September 1, 2009, will
constitute constructive distributions on the Series A Preferred Stock to U.S.
Holders over the period commencing on the issue date thereof and ending on
September 1, 2009. To the extent of the Company's current and accumulated
earnings and profits (as calculated for Federal income tax purposes), the amount
of each consecutive distribution will be includable in a holder's income as
10
16
ordinary dividend income at the time such distribution is deemed to occur,
notwithstanding that the cash attributable to such income will not be received
by the holder until a subsequent period.
RANKING OF THE SERIES A PREFERRED STOCK
The Company's obligations with respect to the Series A Preferred Stock are
subordinate and junior in right of payment to all present and future
indebtedness of the Company and its subsidiaries, but will rank senior to
existing equity securities of the Company. In the event of bankruptcy,
liquidation or reorganization of the Company, the assets of the Company will be
available to pay obligations on the Series A Preferred Stock only after all
holders of indebtedness, and all other creditors, of the Company have been paid,
and there may not be sufficient assets remaining to pay amounts due on any or
all of the Series A Preferred Stock then outstanding. See "-- Substantial Future
Capital Requirements; Need for Additional Financing; Substantial Leverage" and
"Description of the Series A Preferred Stock -- Ranking".
While any shares of Series A Preferred Stock are outstanding, the Company
may not authorize, create or increase the authorized amount of any class or
series of stock that ranks senior to or pari passu with the Series A Preferred
Stock with respect to the payment of dividends or amounts upon liquidation,
dissolution or winding up without the consent of the holders of a majority of
the outstanding shares of Series A Preferred Stock. However, without the consent
of any holder of Series A Preferred Stock, the Company may create additional
classes of stock, increase the authorized number of shares of preferred stock or
issue a new series of stock that ranks junior to the Series A Preferred Stock
with respect to the payment of dividends and amounts upon liquidation,
dissolution or winding up.
CERTAIN FINANCIAL AND OPERATING RESTRICTIONS
The Certificate of Designation and the New Revolving Credit Facility impose
operating and financial restrictions on the Company and its subsidiaries. These
restrictions affect, and in certain cases significantly limit or prohibit, among
other things, the ability of the Company or any subsidiaries to incur additional
indebtedness, issue stock of any subsidiaries, create liens on its assets, pay
dividends or make other distributions, sell assets, engage in mergers or
acquisitions or make investments. Failure to comply with any of these
restrictions could limit the availability of borrowings or result in a default
thereunder. In addition, the terms of any debt or equity financings undertaken
by the Company to meet its future cash requirements could restrict the Company's
operational flexibility and thereby adversely affect the Company. See
"Description of Certain Indebtedness" and "Description of the Series A Preferred
Stock".
MANAGEMENT OF RAPID GROWTH
Subject to the sufficiency of its cash resources, the Company intends to
continue to rapidly expand its business. The Company's future performance will
depend, in large part, upon its ability to implement and manage its growth
effectively. The Company's rapid growth has placed, and in the future will
continue to place, a significant strain on its administrative, operational and
financial resources. The Company anticipates that, if successful in expanding
its business it will be required to recruit and hire a substantial number of new
sales and other personnel. Pursuant to the Company's growth strategy, the
Company currently intends to increase the size of its sales force from 201 as of
September 30, 1998 to approximately 400 by the end of 1999. Failure to retain
and attract additional qualified sales and other personnel, including management
personnel who can manage the Company's growth effectively, and failure to
successfully integrate such personnel, could have a material adverse effect on
the Company. To manage its growth successfully, the Company will also have to
continue to improve and upgrade operational, financial, accounting and
information systems, controls and infrastructure as well as expand, train and
manage its employee base. In the event the Company is unable to upgrade its
financial controls and systems adequately to support its anticipated growth, the
Company could be materially adversely affected. See
11
17
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- Business Strategy".
LACK OF EXPERIENCE OFFERING LOCAL AND OTHER TELECOMMUNICATIONS SERVICES
The Company's strategy includes offering additional telecommunications
services, including local service and Internet access. The Company has limited
experience providing local service and Internet access. To be successful, the
Company must compete successfully with companies that have greater financial
resources and experience than the Company. To provide these additional services,
the Company expects that it will be necessary to make upgrades to its network in
advance of the receipt of any revenue. In addition, the provision of certain of
these services may involve technical requirements with respect to which the
Company has little experience. The provision of these services must also be
successfully integrated into the Company's business. There can be no assurance
that the Company's future services will receive market acceptance in a timely
manner, if at all, or that prices and demand for these services will be
sufficient to provide profitable operations. See "Business -- Business
Strategy", "Business -- Service Offerings -- Planned Services" and "Business --
Network -- Anticipated Network Expansion".
ABILITY TO SECURE AND MAINTAIN INTERCONNECTION AND PEERING ARRANGEMENTS
The Company's success will depend upon its ability to develop and expand
its network infrastructure and support services in order to offer local
telecommunication services, Internet access and other services. Executing the
Company's business strategy will require that the Company enter into agreements,
on acceptable terms and conditions, with various providers of infrastructure
capacity, in particular, interconnection agreements with ILECs and peering
agreements with internet service providers ("ISPs"). No assurance can be given
that all of the requisite agreements can be obtained on satisfactory terms and
conditions.
The Company must enter into agreements for the interconnection of the
Company's network with the networks of the ILECs covering each market in which
the Company intends to offer local service. The Company had entered into
interconnection agreements with Bell Atlantic with respect to Massachusetts, New
Hampshire, Rhode Island and New York; and with BellSouth with respect to Florida
and Georgia. The Company expects to execute additional interconnection
agreements throughout 1999. There can be no assurance that the Company will
successfully negotiate such additional agreements; the failure to secure and
maintain such agreements could have a material adverse effect on the Company's
ability to become a single source provider of telecommunications services.
Peering agreements between the Company and ISPs will be necessary in order
for the Company to exchange traffic with ISPs without having to pay transit
costs. The basis on which the large national ISPs make peering available or
impose settlement charges is evolving as the provisioning of Internet access and
related services has expanded. Recently, companies that have previously offered
peering have reduced or eliminated peering relationships and are establishing
new, more restrictive criteria for peering. Furthermore, if increasing costs and
other requirements associated with maintaining peering with the major national
ISPs develop, the Company may have to comply with those additional requirements
in order to continue to maintain any peering relationships it negotiates.
Failure to establish and maintain peering relationships would cause the Company
to incur additional operating expenses or abandon certain elements of its
strategy, which could have a material adverse effect on the Company. See
"Government Regulation".
DEPENDENCE UPON SUPPLIERS AND OTHER SERVICE PROVIDERS
The Company relies on other companies to supply certain key components of
its network infrastructure, including telecommunications services, network
capacity and switching and networking equipment, which, in the quantities and
quality demanded by the Company, are available only
12
18
from sole or limited sources. The Company is also dependent upon ILECs and other
carriers to provide telecommunications services and facilities to the Company
and its customers. The Company has from time to time experienced delays or other
problems in receiving telecommunications services and facilities which it
requests, and there can be no assurance that the Company will be able to obtain
such services or facilities on the scale and within the time frames required by
the Company at an affordable cost, or at all. As the Company expands its service
offerings to include local services, it will compete increasingly with ILECs,
which will serve as a disincentive for such entities to cooperate with the
Company. Any failure to obtain such components, services or additional capacity
on a timely basis at an affordable cost, or at all, would have a material
adverse effect on the Company. See "Business -- Competition" and "Government
Regulation".
In September 1998, approximately 40% of the Company's revenue was
attributable to the resale of long distance service provided by Sprint
Communications Company L.P. ("Sprint"). The current agreement with Sprint, which
became effective as of February 1998, terminates in February 2000, and there can
be no assurance that this agreement will be extended on terms acceptable to the
Company, if at all. Early termination of the Company's relationship with Sprint
could have a material adverse effect on the Company. See
"Business -- Network -- Sprint Agreement".
The accurate and prompt billing of the Company's customers is dependent
upon the timeliness and accuracy of call detail records ("CDRs") provided by any
carrier whose service the Company resells. There can be no assurance that the
current carriers will continue to provide, or that new carriers, including
ILECs, will provide, accurate information on a timely basis, and any such
carrier's failure to do so could have a material adverse effect on the Company.
RELIANCE ON LEASED TRANSPORT FACILITIES AND IRUs
Because the Company leases a portion of its transport capacity, it is
dependent upon the availability of fiber optic transmission facilities owned by
ILECs, competitive local exchange carriers ("CLECs") and other fiber optic
transport providers who lease their fiber optic networks to service providers
such as the Company. Many of these entities are, or may become, competitors of
the Company. See "-- Competition". The Company recently entered into two 20-year
IRU agreements pursuant to which it acquired dark fiber mileage, and may enter
into additional IRU agreements in the future. Integration of fiber mileage
acquired pursuant to IRU agreements into the Company's network will subject the
Company to the risk that the owners of the underlying facilities, who may be
competitors of the Company, will not maintain, or will deny the Company access
to, such facilities. The risks inherent in this approach include, but are not
limited to, the possible inability to negotiate and renew favorable supply
agreements, and dependence on the timeliness of the ILECs, CLECs or other fiber
optic transport providers in processing the Company's orders for customers who
seek to utilize the Company's services. See "Business -- Network".
DEPENDENCE ON RIGHTS-OF-WAY AND OTHER THIRD PARTY AGREEMENTS
To further develop its network, the Company may need to obtain local
franchises and other permits, as well as rights to utilize underground conduit
and aerial pole space and other rights-of-way and fiber capacity from entities
such as ILECs and other utilities, railroads, long distance companies, state
highway authorities, local governments and transit authorities. There can be no
assurance that the Company will be able to obtain and maintain such franchises,
permits and rights needed to implement its business strategy on acceptable
terms. Although the Company does not believe that any such arrangements would be
canceled or would not be renewed as needed, cancellation or non-renewal of such
arrangements could materially adversely affect the Company's business in the
affected area. See "Business -- Network -- Anticipated Network Expansion" and
"Government Regulation".
13
19
COMPETITION
The Company operates in a highly competitive environment and currently does
not have a significant market share in any of its markets. Most of its actual
and potential competitors have substantially greater financial, technical,
marketing and other resources (including brand or corporate name recognition)
than the Company. Also, the continuing trend toward business alliances in the
telecommunications industry and the absence of substantial barriers to entry in
the data and Internet services markets could give rise to significant new
competition. The Company's success will depend upon its ability to provide
high-quality services at prices competitive with those charged by its
competitors. In addition, the long distance industry is characterized by a high
level of customer attrition or "churn"; the Company's revenue has been, and is
expected to continue to be, affected by churn. In addition, the Company faces
the following specific competitive risks:
- - Effect of New Rate Plans. AT&T Corp. ("AT&T"), MCI WorldCom, Inc. ("MCI"),
Sprint and other carriers have implemented new price plans aimed at residential
customers with significantly simplified rate structures, which may have the
impact of lowering overall long distance prices. There can be no assurance that
long distance carriers will not make similar offerings available to the small to
medium-sized businesses that the Company primarily serves.
- - Need to Compete with Incumbent Providers. In the local telecommunications
market, the Company's primary competitor initially is expected to be the ILEC
serving each geographic area. ILECs are established providers of dedicated and
local telephone services to all or virtually all telephone subscribers within
their respective service areas. If the ILECs are allowed additional flexibility
by regulators to offer discounts to large customers through contract tariffs,
decide to engage in aggressive volume and term discount pricing practices for
their customers, or seek to charge competitors excessive fees for
interconnection to their networks, the revenue of competitors to the ILECs,
including the Company, could be materially adversely affected. If future
regulatory decisions afford the ILECs increased access services pricing
flexibility or other regulatory relief, such decisions could also have a
material adverse effect on competitors to the ILECs.
- - Entrance of Large Long Distance Companies Into the Local Market. The Company
will also face competition or prospective competition in local markets from
other carriers, many of which have significantly greater financial resources
than the Company. For example, AT&T, MCI and Sprint have each begun to offer
local telecommunications services in major U.S. markets using their own
facilities or by resale of the ILECs' or other providers' services.
- - Local Competition from Other Providers. In addition to long distance service
providers, entities that currently offer or are potentially capable of offering
local switched services include companies that have previously operated as
competitive access providers, cable television companies, electric utilities,
microwave carriers, wireless telephone system operators and large customers who
build private networks. These entities, upon entering into appropriate
interconnection agreements or resale agreements with ILECs, including RBOCs,
could offer single-source local and long distance services, similar to those
offered or proposed to be offered by the Company.
- - Larger and More Competitive Companies Resulting from Telecommunications
Mergers. A continuing trend towards business combinations and alliances in the
telecommunications industry may create significant new competitors to the
Company. Many of these combined entities will have resources far greater than
those of the Company. These combined entities may provide a bundled package of
telecommunications products, including local and long distance telephony, that
is in direct competition with the products offered or proposed to be offered by
the Company, and may be capable of offering these products sooner and at more
competitive rates than the Company.
- - The Competitive Implications of Other Technologies. The Company will also
face competition from fixed wireless services; wireless devices that do not
require site or network licensing; cellular,
14
20
personal communications service ("PCS"), and other commercial mobile radio
service ("CMRS") providers; and Internet telephony.
- - Entrance of the Regional Bell Operating Companies into the In-Region Long
Distance Market. Section 271 of the Telecommunications Act prohibits any RBOC
from providing long distance service that originates (or, in certain cases,
terminates) in one of its in-region states until the RBOC has satisfied certain
statutory conditions in that state and has received the approval of the FCC. To
date, the FCC has denied several applications for such approval; however, the
Company anticipates that a number of RBOCs will file additional applications for
in-region long distance authority in 1998 and 1999. Once the RBOCs are allowed
to offer widespread in-region long distance services, both they and the largest
IXCs will be in a position to offer single-source local and long distance
service.
- - Entrance of Foreign Companies into U.S. Markets. New FCC rules went into
effect in February 1998 that make it substantially easier for many non-U.S.
telecommunications companies to enter the U.S. market, thus potentially further
increasing the number of competitors.
- - Intense Competition in Data and Internet Markets. The market for data
communications and Internet access services is also extremely competitive. There
are no substantial barriers to entry, and the Company expects that competition
will intensify in the future.
See "Business -- Competition", "Business -- Industry Overview" and
"Government Regulation".
THE TELECOMMUNICATIONS ACT AND OTHER REGULATION
Telecommunications services are subject to significant regulation at the
federal, state, local and international levels, affecting the Company and its
existing and potential competitors. Delays in receiving required regulatory
approvals or the enactment of new and adverse legislation, regulations or
regulatory requirements may have a material adverse effect on the Company's
financial condition, results of operations and cash flow. In addition, future
legislative, judicial and regulatory agency actions could alter competitive
conditions in the markets in which the Company is operating or intends to
operate in ways that are materially adverse to the Company. In particular, the
Company faces the following regulatory risks:
- - Need to Comply with Federal Regulations. The Company is regulated at the
Federal level by the FCC. It is required to obtain and maintain an FCC 214
license in connection with its international services, and is currently required
to file and maintain both domestic and international tariffs containing the
currently effective rates, terms and conditions of service for its long distance
services. The FCC generally retains the right to sanction a carrier or revoke
its authorization if a carrier violates applicable laws or regulations.
- - Legal and Administrative Burden of Compliance with Diverse State
Regulations. The Company's telecommunications operations are also subject to
various state laws and regulations. The Company must obtain and maintain
certificates of public convenience and necessity from regulatory authorities in
most states in which it offers intrastate service. In most states, the Company
must also file and obtain prior regulatory approval of tariffs for intrastate
services. The Company must update or amend its tariffs when rates are adjusted
or new products are added to services offered by the Company. Challenges by
third parties to the Company's Federal or state tariffs and complaints about the
Company's practices could cause the Company to incur substantial legal and
administrative expenses.
- - Failure to Obtain Prior Regulatory Approval of Corporate Reorganization. The
FCC and numerous state agencies also impose prior approval requirements on
transfers of control, including pro forma transfers of control and corporate
reorganizations, and assignments of regulatory authoriza-
15
21
tions. The Company did not obtain prior approval for its July 1998 corporate
reorganization to create a holding company structure whereby Network Plus Corp.,
a Delaware corporation, became the holding company of Network Plus, Inc., a
Massachusetts corporation. The Company has filed the necessary papers at the FCC
and the relevant state commissions seeking nunc pro tunc (retroactive) approval
of its reorganization into a holding company structure on the grounds that the
transaction serves important business needs of the Company and enhances the
Company's ability to market and provide services more efficiently. The Company
believes that its applications will be approved in due course, although there
can be no assurance that such approval will be obtained. In the unlikely event
that retroactive approval is not obtained from one or more regulatory bodies,
the FCC or a state commission may impose fines or penalties, and a state
commission may require temporary cessation of business operations of the Company
in its jurisdiction pending such approval, any of which events could result in
reduced revenue. Such impact on the Company's revenue could have a material
adverse effect on the value of the Company's securities, including the Series A
Preferred Stock.
- - Difficulty Predicting the Impact of the Telecommunications Act and Other
Regulatory Changes. The Telecommunications Act has resulted in comprehensive
changes in the regulatory environment for the telecommunications industry as a
whole, and will have a material impact on the local exchange industry and the
competitive environment in which the Company operates. The concept of
competitive provisioning of local exchange services is a relatively new
development in the telecommunications industry, and the Company cannot predict
how the relevant provisions of the Telecommunications Act will be interpreted
and implemented by the FCC, state regulators, courts and the ILECs. See
"Business -- Competition", "Business -- Industry Overview" and "Government
Regulation".
The Company's cost of providing long distance service, and its revenue from
providing local services, will both be affected by changes in "access charges"
and universal service. If the Federal and state regulations requiring the local
exchange carriers to provide equal access for the origination and termination of
calls by long distance subscribers change or if the regulations governing access
charge rates or universal service contribution change, such changes could have a
material adverse effect on the Company's financial condition, results of
operations and cash flow.
- - Uncertainty of the Evolving Regulatory Environment. On July 18, 1997, the
United States Court of Appeals for the Eighth Circuit overturned many of the
rules the FCC had established pursuant to the Telecommunications Act. On January
25, 1999, the U.S. Supreme Court reversed the Eighth Circuit decision, upholding
the FCC's authority to establish national pricing rules for interconnection,
unbundled network elements and resold services. The Supreme Court overturned the
FCC's rules regarding what network elements must be unbundled by the RBOCs, and
remanded to the FCC the question of what network elements are "necessary" to
competing carriers. In addition, the Supreme Court created some uncertainty
regarding the legal status of complaints filed at the FCC to enforce
interconnection agreements by finding that the issue was not ripe for judicial
consideration. Further proceedings on remand could affect the Company's ability
to obtain interconnection agreements on favorable terms. We cannot assure you
that the Company will succeed in obtaining interconnection agreements on terms
that would permit the Company to offer local services at profitable and
competitive rates.
Any successful effort by the RBOCs or other local exchange carriers to deny
or limit access to their network elements or wholesale services would have a
material adverse effect on the Company's business, results of operations, and
financial condition.
DEPENDENCE ON BILLING, CUSTOMER SERVICE AND INFORMATION SYSTEMS
Integrated management information and processing systems are vital to the
Company's growth and its ability to monitor costs, bill customers, provision
customer orders and achieve operating efficiencies. As the Company continues its
transition to the provisioning of integrated communica-
16
22
tions services, the need for sophisticated billing and information systems will
increase significantly. The cost of implementing such systems has been, and is
expected to continue to be, substantial. Also, the Company's plans for the
development and implementation of its internal systems rely on the delivery of
products and services by third party vendors. Failure of these vendors to
deliver the required information in a timely and effective manner and at
acceptable costs, failure of the Company to adequately identify and integrate
all of its information and processing needs, failure of the Company's related
processing or information systems, or the failure of the Company to upgrade
systems as necessary could have a material adverse effect on the Company.
The Company is dependent upon the prompt collection of payment of its
customers' bills and, in turn, upon the creditworthiness of its customers and
the continued implementation of adequate revenue assurance programs. The failure
of its customers to pay their bills in a timely manner or the Company's failure
to accurately assess the creditworthiness of its customers and implement
adequate revenue assurance programs could have a material adverse effect on the
Company. In 1997, the Company's provision for doubtful accounts increased by
$3.0 million, principally relating to two customers and an increase in the
estimate of bad debt reserve consistent with the growth in revenue. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- Management Information Systems, Provisioning,
Billing and Collections".
DEPENDENCE ON KEY PERSONNEL
The Company believes that its success will depend to a significant extent
upon the abilities and continued efforts of its management, particularly Robert
T. Hale, Jr., the Company's Chief Executive Officer and President, Robert T.
Hale, the Company's Chairman of the Board, and other members of its senior
management team. None of the Company's executive officers is subject to an
employment agreement with the Company providing for the officer's continuing
employment. The loss of the services of any of such individuals could have a
material adverse effect on the Company. The success of the Company will also
depend, in part, upon the Company's ability to hire and retain additional key
personnel, including senior management, technical and sales personnel, who are
also being sought by other businesses. Competition for qualified personnel in
the telecommunications industry is intense. Difficulty in hiring and retaining
such personnel could have a material adverse effect on the Company. See
"-- Management of Rapid Growth", "Business -- Employees" and "Management".
IMPACT OF TECHNOLOGICAL CHANGE
The telecommunications industry has been, and is likely to continue to be,
characterized by rapid technological change, frequent new service introductions
and evolving industry standards. Increases or changes in technological
capabilities or efficiencies could create an incentive for more competitors to
enter the facilities-based local exchange business in which the Company intends
to compete. Similarly, such changes could result in lower retail rates for
telecommunications services, which could have a material adverse effect on the
Company's ability to price its services competitively or profitably. Future
technological changes, including changes related to emerging wireline and
wireless transmission and switching technologies and Internet-related services
and technologies, also could have a material adverse effect on the Company.
The Company relies and will continue to rely in part on third parties
(including certain of its competitors and potential competitors) for the
development of and access to communications and networking technology. The
effect of technological changes on the business of the Company cannot be
predicted with any degree of certainty. The Company believes its future success
will depend, in part, on its ability to anticipate or adapt to such changes and
to offer, on a timely basis, services that meet customer demands and evolving
industry standards. There can be no assurance that the Company will obtain
access to new technology on a timely basis or on satisfactory terms, or that the
Company will be able to adapt to such technological changes, offer such services
on a timely basis
17
23
or establish or maintain a competitive position. Any technological change,
obsolescence or failure to obtain access to important technologies could have a
material adverse effect on the Company. See "Business -- Industry Overview".
YEAR 2000 COMPLIANCE
Many computer systems experience problems handling dates beyond the year
1999. Therefore, some computer hardware and software will need to be modified
prior to the year 2000 in order to remain functional. There can be no assurance
the Company will not incur significant unanticipated costs in achieving year
2000 compliance. Furthermore, if the hardware or software comprising the
Company's network elements acquired from third-party vendors, the software
applications of the long distance carriers, LECs, or others on whose services
the Company depends or with whom the Company's systems interface, or the
software applications of other suppliers, are not year 2000 compliant, it could
affect the Company's systems, which could have a material adverse effect on the
Company. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Impact of Year 2000".
STRATEGIC INVESTMENTS; BUSINESS COMBINATIONS
In furtherance of its growth strategy, the Company may pursue acquisitions
of, or joint ventures or strategic alliances with, companies engaged in
businesses similar or related to the business of the Company. As consideration
for such acquisitions, the Company may be required to assume liabilities, incur
additional indebtedness or issue equity securities. There can be no assurance
that the Company will be able to obtain such financing. Such acquisitions,
combinations or alliances, if consummated, could increase the Company's
indebtedness and could divert the resources and management of the Company and
would require integration with the Company's existing networks and services.
There can be no assurance that any acquisitions, combinations or alliances will
occur or, if consummated, would be on terms favorable to the Company or would be
successfully integrated into the Company's operations. See "Business -- Business
Strategy -- Expand Through Strategic Acquisitions and Alliances".
DEPENDENCE UPON NETWORK INFRASTRUCTURE; RISK OF SYSTEM FAILURE; SECURITY RISKS
The Company's success in attracting and retaining customers requires that
the Company provide adequate reliability, capacity and security in its network
infrastructure. The Company's networks and the networks upon which it depends
are subject to physical damage, power loss, capacity limitations, software
defects, breaches of security (by computer virus, break-ins or otherwise) and
other factors, certain of which may cause interruptions in service or reduced
capacity for the Company's customers. Interruptions in service, capacity
limitations or security breaches could have a material adverse effect on the
Company. See "Business -- Network".
CONTROL BY EXISTING STOCKHOLDERS; DEADLOCK; ANTITAKEOVER PROVISIONS
All of the outstanding Common Stock is owned or voted by Robert T. Hale and
Robert T. Hale, Jr., each an Officer and Director of the Company. Consequently,
management will have complete control over all of the Company's affairs and will
have the ability to control the election of all members of the Company's Board
of Directors and the outcome of all corporate actions requiring stockholder
approval.
Because the outstanding Common Stock is owned equally by the Company's two
stockholders, the failure of such stockholders to agree on a matter that
requires the approval of the holders of a majority of the outstanding shares of
Common Stock would result in a deadlock, which could have the effect of
preventing or delaying the Company from taking any action on the matter. Such a
deadlock could have a material adverse effect on the Company. See "Management"
and "Stock Ownership".
18
24
Robert T. Hale and Robert T. Hale, Jr. will have the authority to amend the
Company's Certificate of Incorporation and By-Laws to include certain provisions
that may have the effect of discouraging, delaying or making more difficult a
change in control of the Company or preventing the removal of incumbent
directors even if holders of the Warrants or other securities of the Company
were to deem such action to be in the best interests of the Company. Among other
things, the Certificate of Incorporation may be amended to provide for a
classified Board of Directors. In addition, the Certificate of Incorporation
allows the Board of Directors to issue shares of preferred stock and fix the
rights, privileges and preferences of those shares without any further vote or
action by the stockholders. The rights of the holders of Common Stock will be
subject to, and may be adversely affected by, the rights of the holders of any
preferred stock that may be issued in the future. Any such issuance of shares of
preferred stock could have the effect of making it more difficult for a third
party to acquire a majority of the outstanding voting stock of the Company. In
addition, the Certificate of Incorporation and By-Laws could be amended to,
among other things, limit the manner in which directors may be nominated by the
stockholders and limit the manner in which proposals may be made at stockholder
meetings. The Company may also elect to be subject to Section 203 of the
Delaware General Corporation Law, which could have the effect of delaying or
preventing a change of control of the Company. To the extent that these
provisions discourage takeover attempts, they could deprive stockholders of
opportunities to realize takeover premiums for their shares or could depress the
market price of the Company's securities.
FUNDING OF REPURCHASE OBLIGATIONS; ABSENCE OF SINKING FUND; REDEMPTION OF SERIES
A PREFERRED STOCK UPON MATURITY
There is no sinking fund with respect to the Series A Preferred Stock, and
in September 2009 all outstanding shares thereof will become subject to
mandatory redemption by the Company. Also, upon the occurrence of certain
earlier events, including a change in control of the Company, the Company will
be required to offer to repurchase all or a portion of the outstanding Series A
Preferred Stock. The source of funds for any such payment at maturity or earlier
repurchase is expected to be the Company's available cash or cash generated from
operating or other sources, including, without limitation, borrowings or sales
of assets or equity securities of the Company. There can be no assurance that
sufficient funds will be available at the time of any such event to make such
purchase or to make any other required payment. See "Description of the Series A
Preferred Stock". In addition, limitations imposed by other debt obligations of
the Company may limit the Company's ability to repurchase the Series A Preferred
Stock.
ABSENCE OF PUBLIC MARKET
The Preferred Shares are a new issue of securities for which there is
currently no established market. There can be no assurance as to (i) the
liquidity of any market that may develop, (ii) the ability of the holders of
Preferred Shares to sell any of their Preferred Shares, or (iii) the price at
which the holders of Preferred Shares would be able to sell such shares. The
Company does not presently intend to apply for listing of the Preferred Shares
on any national securities exchange or on The Nasdaq Stock Market. The Initial
Purchasers have advised the Company that they presently intend to make a market
in the Preferred Shares. The Initial Purchasers are not obligated, however, to
continue to make a market in such shares, and any such market-making may be
discontinued at any time at the sole discretion of the Initial Purchasers and
without notice. Accordingly, no assurance can be given as to the development or
liquidity of any market for the Preferred Shares. If a market for the Preferred
Shares were to develop, such shares could trade at prices that may be higher or
lower than their initial offering price depending on many factors, including
prevailing interest rates, the Company's operating results and prospects for its
performance, the market for similar securities and general economic conditions.
Historically, the market for securities such as the Preferred Shares has been
subject to disruptions that have caused substantial volatility in the prices of
similar securities. There can be no assurance that, if a market for any of the
Preferred Shares were to develop, such a market would not be subject to similar
disruptions.
19
25
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Preferred Shares
by the Selling Stockholders pursuant hereto. The net proceeds to the Company of
the Initial Offering were approximately $37.5 million. The Company used $9.8
million of the net proceeds of the Initial Offering to pay down borrowings
outstanding under the Former Bank Credit Facility. Interest under the Former
Bank Credit Facility was payable at the prime rate or available LIBOR options
through maturity on May 1, 2001. The Company intends to use the remainder of the
net proceeds to finance its anticipated expansion, including the expansion of
its local telecommunications infrastructure, information technology systems and
sales force.
Pending application of the net proceeds of the Initial Offering as
described herein, the Company intends to use a portion of such proceeds to
temporarily repay revolving indebtedness and to invest the remainder of such
proceeds in short-term, interest-bearing, U.S. government securities and other
short-term, investment grade securities.
Because of the number and variability of factors that may determine the
Company's use of the net proceeds of the Initial Offering, management will
retain a significant amount of discretion over the application of the net
proceeds. There can be no assurance that such applications will not vary
substantially from the Company's current plans. See "Risk Factors -- Control by
Existing Stockholders; Deadlock; Antitakeover Provisions", "Risk
Factors -- Negative Cash Flow and Operating Losses" and "Risk
Factors -- Substantial Future Capital Requirements; Need for Additional
Financing; Substantial Leverage".
DIVIDEND POLICY
On September 2, 1998, the Company paid a dividend to Robert T. Hale and
Robert T. Hale, Jr. in the aggregate amount of $5.0 million, of which $1.9
million was reinvested by one of the stockholders in the form of a long-term
loan to the Company. For the foreseeable future the Company intends to retain
its earnings for its operations and expansion of its business and it does not
expect to pay dividends on its Common Stock (other than in amounts necessary to
enable the Company's stockholders to pay taxes and related tax preparation
expenses in respect of income allocated to such stockholders through the date
the Company's status as an S Corporation ceased). The payment of any future
dividends will be at the discretion of the Board of Directors, except as
required by the terms of the Series A Preferred Stock, and will depend upon,
among other factors, the Company's earnings, financial condition, capital
requirements and general business outlook at the time payment is considered. In
addition, the Company's ability to pay dividends will depend upon the amount of
distributions, if any, received from NPI or any future operating subsidiaries of
the Company. The Company intends to exercise its option to make dividend
payments on the Series A Preferred Stock prior to September 1, 2003 by allowing
such dividends to be added to the Specified Amount of the Series A Preferred
Stock. The New Revolving Credit Facility will, and any future indebtedness
incurred by the Company may, restrict the ability of the Company to pay
dividends. See "Description of Certain Indebtedness", "Description of the Series
A Preferred Stock" and "Description of Capital Stock".
20
26
CAPITALIZATION
The following table sets forth the total cash and cash equivalents,
marketable securities and investments and capitalization of the Company as of
September 30, 1998, and reflects (i) the Initial Offering (after deducting
discounts and offering expenses payable by the Company totaling $2.5 million)
and the application of the net cash proceeds therefrom, including the repayment
of $9.8 million of borrowings under the Former Bank Credit Facility, (ii) the
payment of a $5.0 million dividend to the Company's stockholders and the
reinvestment of $1.9 million by one of the Company's stockholders (representing
such stockholder's approximate net after-tax proceeds of the dividend) in the
form of a long-term loan to the Company and (iii) the tax effect of the
Company's conversion from an S Corporation to a C Corporation. This table should
be read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the historical financial statements,
including the notes thereto, of the Company and NPI appearing elsewhere in this
Prospectus. See "Use of Proceeds", "Description of Capital Stock" and
"Description of Certain Indebtedness -- Stockholder Loan".
SEPTEMBER 30, 1998
------------------
(IN THOUSANDS,
EXCEPT SHARE AND PER
SHARE DATA)
Cash and Cash Equivalents, Marketable Securities and
Investments............................................... $26,871
=======
Debt:
Current Portion of Long-Term Debt and Capital Lease
Obligations and Former Bank Credit Facility(1)............ $ 4,025
=======
Long-Term Debt and Capital Lease Obligations, Net of Current
Portion................................................... $ --
Long-Term Note Payable to Stockholder....................... 1,875
Redeemable Preferred Stock
13.5% Series A Cumulative Redeemable Preferred Stock due
2009, $0.01 par value, 50,000 shares authorized, 40,000
shares issued and outstanding, as adjusted(2).......... 33,639
Stockholders' Equity:
Common Stock, $.01 par value, 20,000,000 shares
authorized; 10,000,000 shares outstanding.............. 100
Additional Paid-In Capital................................ --
Warrants(2)(3)............................................ 4,359
Accumulated Deficit....................................... (7,566)
-------
Total Stockholders' Equity (Deficit)................... (3,107)
-------
Total Capitalization.............................. $32,407
=======
- ---------------
(1) If the New Revolving Credit Facility had been in place on September 30,
1998, approximately $45 million of the $60 million in total borrowings
contemplated by such facility would have been available.
(2) Series A Preferred Stock with an initial liquidation preference of $40
million was issued by the Company as part of the Units sold in the Initial
Offering. Each Unit consists of one share of Series A Preferred Stock, 7.75
Initial Warrants and 15 Contingent Warrants, each Warrant to purchase one
share of Common Stock. A value of $4.65 million was allocated to the
Warrants, representing the portion of the purchase price of the Units
allocated to the Initial Warrants, less $0.3 million of the costs associated
with the Initial Offering allocable to the Initial Warrants. A de minimis
value was ascribed to the Contingent Warrants. No assurance can be given
that the value allocated to the Initial Warrants will be indicative of the
price at which the Initial Warrants may actually trade. Costs of $2.2
million associated with the Initial Offering have been allocated to the
Series A Preferred Stock.
(3) Represents the portion of the purchase price of the Units allocated to the
Initial Warrants (as described in note 2 above), less $0.3 million of the
cost associated with the Initial Offering allocable to the Initial Warrants.
21
27
SELECTED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
The following table presents selected financial data for the years ended
December 31, 1993, 1994, 1995, 1996 and 1997 and the nine month periods ended
September 30, 1997 and 1998. The financial and balance sheet data for the years
ending December 31, 1995, 1996 and 1997 have been derived from financial
statements (including those set forth elsewhere in this Prospectus) that have
been audited by PricewaterhouseCoopers LLP, independent accountants. The
financial statements as of December 31, 1996 and 1997 and for each of the years
in the three year period ended December 31, 1997 and the report of
PricewaterhouseCoopers LLP relating thereto are included elsewhere in this
Prospectus, and the selected financial data represented below are qualified in
their entirety by reference thereto. The financial data presented for the years
ended December 31, 1993 and 1994 and the nine month periods ended September 30,
1997 and September 30, 1998 are derived from the unaudited financial statements
of the Company and in the opinion of management include all adjustments
(consisting only of normal recurring adjustments) necessary for a fair
presentation of the Company's results of operations and financial condition for
those periods. The data for the nine month period ended September 30, 1998 are
not necessarily indicative of results for the year ending December 31, 1998 or
indicative of future periods. The selected financial data should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the financial statements, including the notes
thereto, of the Company appearing elsewhere in this Prospectus.
For periods prior to the formation of the Company on July 15, 1998, the
financial data reflect the financial statements of Network Plus, Inc., the
Company's wholly-owned subsidiary, as it was the sole operating entity.
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------------------- -----------------
1993 1994 1995 1996 1997 1997 1998
------- ------- ------- ------- ------- ------- -------
STATEMENTS OF OPERATIONS DATA:
Revenue......................................... $14,427 $30,754 $49,024 $75,135 $98,209 $73,921 $79,588
Costs of services............................... 7,120 16,061 35,065 57,208 78,106 58,193 59,234
Selling, general and administrative............. 7,233 11,631 17,697 19,230 25,704 16,370 20,099
Depreciation and amortization................... 67 180 276 533 994 581 1,449
------- ------- ------- ------- ------- ------- -------
Operating income (loss)......................... 7 2,882 (4,014) (1,836) (6,595) (1,223) (1,194)
Interest income................................. 13 37 202 95 86 77 62
Interest expense................................ (5) (2) (40) (313) (557) (330) (781)
Other income, net............................... 30 102 7,859 3,529 3,917 3,234 69
Provision for income taxes...................... (3) (167) (312) (60) (42) (42) (430)
------- ------- ------- ------- ------- ------- -------
Net income (loss)............................... 42 2,852 3,695 1,415 (3,191) 1,969 (2,274)
Preferred stock dividends and accretion......... -- -- -- -- -- -- (498)
------- ------- ------- ------- ------- ------- -------
Net income (loss) applicable to common
stockholders.................................. $ 42 $ 2,852 $ 3,695 $ 1,415 $(3,191) $ 1,969 $(2,772)
======= ======= ======= ======= ======= ======= =======
Net income (loss) per share applicable to common
stockholders
Basic and diluted............................. $ -- $ 0.29 $ 0.37 $ 0.14 $ (0.32) $ 0.20 $ (0.28)
======= ======= ======= ======= ======= ======= =======
Pro forma net income (loss) per share applicable
to common stockholders
Basic and diluted............................. $ -- $ 0.18 $ 0.24 $ 0.09 $ (0.21) $ 0.12 $ (0.17)
======= ======= ======= ======= ======= ======= =======
Weighted average shares outstanding
Basic and diluted............................. 10,000 10,000 10,000 10,000 10,000 10,000 10,000
======= ======= ======= ======= ======= ======= =======
22
28
DECEMBER 31,
----------------------------------------------- SEPTEMBER 30,
1993 1994 1995 1996 1997 1998(1)
------- ------- ------- ------- ------- -------------
BALANCE SHEET DATA:
Cash and cash equivalents......................... $ 215 $ 1,232 $ 1,608 $ 2,241 $ 1,502 $26,804
Current assets.................................... 2,545 9,264 16,441 19,771 28,521 43,122
Property and equipment, net....................... 819 1,435 1,507 3,075 6,957 10,659
Working capital................................... 1,592 4,388 2,369 1,621 (3,128) 21,352
Total assets...................................... 4,647 11,264 18,005 22,915 35,581 54,177
Other long-term obligations....................... 14 24 11 664 3,623 1,875
Redeemable Series A Preferred Stock (2)........... -- -- -- -- -- 33,639
Total stockholders' equity (deficit).............. 539 2,117 3,922 4,101 309 (3,107)
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------ ---------------
1993 1994 1995 1996 1997 1997 1998
------ ------ ------ ------ ------ ------ ------
OTHER FINANCIAL DATA:
Capital expenditures............................. 815 813 860 2,135 3,363 3,035 5,160
EBITDA (3)....................................... 104 3,164 4,121 2,226 (1,684) 2,922 386
Net cash provided by (used for) operating
activities..................................... 1,689 1,904 2,463 (316) 184 2,538 (1,867)
Net cash provided by (used for) investing
activities..................................... (1,949) 368 (184) (647) (6,927) (6,442) 4,355
Net cash provided by (used for) financing
activities..................................... 19 (1,255) (1,903) 1,596 6,004 2,525 22,814
Ratio of earnings to combined fixed charges
(4)............................................ 1.5x 23.4x 20.4x 3.7x (2.9)x 5.0x (0.2)x
- ---------------
(1) Reflects (i) the Initial Offering (after deducting discounts and offering
expenses payable by the Company totaling $2.5 million) and the application
of the net cash proceeds therefrom, including the repayment of $9.8 million
of borrowings under the Former Bank Credit Facility (see "Description of
Certain Indebtedness"), (ii) the payment of a $5.0 million dividend to the
Company's stockholders and the reinvestment of $1.9 million by one of the
Company's stockholders (representing such stockholder's approximate net
after-tax proceeds of the dividend) in the form of a long-term loan to the
Company and (iii) the tax effect of the Company's conversion from an S
Corporation to a C Corporation.
(2) Series A Preferred Stock with an initial liquidation preference of $40.0
million was issued by the Company as part of the Units offered in the
Initial Offering. Each Unit consists of one share of Series A Preferred
Stock, 7.75 Initial Warrants and 15 Contingent Warrants, each Warrant to
purchase one share of Common Stock. A value of $4.65 million was allocated
to the Warrants, representing the portion of the purchase price of the Units
allocated to the Initial Warrants, less $0.3 million of the costs associated
with the Initial Offering allocable to the Initial Warrants. A de minimis
value was ascribed to the Contingent Warrants. No assurance can be given
that the value allocated to the Initial Warrants will be indicative of the
price at which the Initial Warrants may actually trade. Costs of $2.2
million associated with the Initial Offering have been allocated to the
Series A Preferred Stock.
(3) EBITDA consists of net income (loss) before net interest, income taxes,
depreciation and amortization. Management believes that EBITDA is a useful
financial performance measure for comparing companies in the
telecommunications industry in terms of operating performance, leverage, and
ability to incur and service debt, because it provides an alternative
measure of cash flow from operations. EBITDA should not be considered in
isolation from, or as a substitute for, net income (loss), net cash provided
by (used for) operating activities or other consolidated income or cash flow
statement data presented in accordance with generally accepted accounting
principles ("GAAP") or as a measure of profitability or liquidity. EBITDA
does not reflect working capital changes and includes non-interest
components of other income (expense), most of which are non-recurring. These
items may be considered significant components in understanding and
assessing the Company's results of operations and
23
29
cash flows. EBITDA may not be comparable to similarly titled amounts
reported by other companies.
(4) For purposes of calculating the ratio of earnings to combined fixed charges,
"earnings" represent net income (loss) before income taxes plus combined
fixed charges, and combined fixed charges consist of interest expense,
preferred stock dividends and accretion of issuance costs and discount, and
the interest portion of operating lease rentals. For the year ended December
31, 1997, earnings were insufficient to cover combined fixed charges by $3.1
million. For the nine months ended September 30, 1998, earnings were
insufficient to cover combined fixed charges by $1.8 million.
24
30
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
INTRODUCTION
The following discussion and analysis should be read in conjunction with
the financial statements and related notes and other detailed information
regarding the Company included elsewhere in this Prospectus. The discussion and
analysis contains statements of a forward-looking nature relating to future
events or the future financial performance of the Company. Actual events or
results may differ materially from such statements. In evaluating such
statements, prospective investors should specifically consider the various
factors identified in this Prospectus, including the matters set forth under the
caption "Risk Factors", which could cause actual results to differ materially
from those indicated in the forward-looking statements contained herein.
For periods prior to the formation of the Company on July 15, 1998, the
financial data reflect the financial statements of Network Plus, Inc., the
Company's wholly-owned subsidiary, as it was the sole operating entity.
OVERVIEW
The Company was founded in 1990 as an aggregator of AT&T long distance
services, reselling AT&T branded products primarily to small and medium-sized
businesses. As an aggregator of AT&T services, customers were billed and
serviced by AT&T. The Company derived its profits through 1993 by obtaining
volume discounts on bulk purchases of long distance services from AT&T and
passing along a portion of these discounts to its customers.
In 1993, the Company entered into an agreement with Sprint and in 1994
began to resell Sprint telecommunications services. As a reseller of Sprint, the
Company began provisioning, servicing and billing customers under the Network
Plus name. Volume discounts offered by Sprint enabled the Company to offer
low-cost, high quality, long distance services at favorable rates to its
customers. In addition, by servicing its own customers, the Company was better
able to meet customer needs and control costs.
In mid-1996, in addition to provisioning customer traffic onto Sprint's
network ("off-net" traffic) as a switchless reseller of Sprint long distance
services, the Company initiated the deployment of its own long distance network
and began operating as a switch-based provider in certain states, switching
customer traffic on its own facilities ("on-net" traffic). The Company's
decision to deploy switches was based on economic efficiencies resulting from
customer concentrations and traffic patterns. Installation of telephony switches
was completed in Quincy, Massachusetts in June 1996, servicing the Northeastern
region of the United States, and Orlando, Florida in November 1997, servicing
the Southeastern region of the United States. As a switch-based provider, the
Company is able to lower its direct transmission costs. Expansion of the
Company's existing network is planned in those areas of the United States in
which the Company already has significant volumes of originating or terminating
traffic. Additional interexchange, international and local switches are planned
for installation throughout the fourth quarter of 1998 and continuing through
1999. The Company recently entered into two 20-year indefeasible right-of-use
("IRU") agreements pursuant to which it acquired 625 route miles of dark fiber
(1,830 digital fiber miles). When the fiber is fully deployed and activated, it
will form a redundant fiber ring connecting major markets throughout New England
and the New York metropolitan area, providing the Company with significant
transmission capacity. See "Business -- Network -- Current Network -- Fiber and
Transport". The Company has also sold wholesale services for international
traffic since 1997.
The Company intends to continue to add services to maintain and enhance its
position as an integrated communications provider ("ICP"). The Company's
strategic initiatives include expanding its service offerings to include local
exchange and Internet services. By providing local exchange and Internet
services, the Company will offer a single-source solution for all of the
telecommunica-
25
31
tion needs of its customers. By expanding its service offerings, the Company
believes it can improve customer retention and market share, while
simultaneously reducing overall transmission costs.
The Company sells its services through a direct retail sales force, an
international wholesale sales force and a reseller and independent agent sales
force. As the Company expands its network facilities, the Company intends to
increase its sales force to approximately 400 members by year end 1999. The
investment in the sales force, expansion of the existing network and addition of
local exchange, Internet and other services will require significant
expenditures, a substantial portion of which will be incurred before related
revenue is realized. As these expansion plans are undertaken and the revenue
base grows, periods of operating losses and negative cash flows from operations
are anticipated through at least the first three quarters of 1999. See "Risk
Factors -- Negative Cash Flow and Operating Losses" and "Risk
Factors -- Substantial Future Capital Requirements; Need for Additional
Financing; Substantial Leverage".
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated certain financial
data as a percentage of revenues:
THREE MONTHS NINE MONTHS
ENDED ENDED YEAR ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31,
------------- ------------- ---------------------
1998 1997 1998 1997 1997 1996 1995
----- ----- ----- ----- ----- ----- -----
Revenue....................................... 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Costs of services............................. 74.8 80.5 74.4 78.7 79.5 76.1 71.5
Selling, general and administrative........... 29.9 23.6 25.3 22.1 26.2 25.7 36.1
Depreciation and amortization................. 1.8 1.0 1.8 0.8 1.0 0.7 0.6
Operating loss................................ (6.5) (5.2) (1.5) (1.7) (6.7) (2.5) (8.2)
Other income (expense)........................ (0.4) (0.4) (0.8) (0.2) 3.5 4.4 16.4
Income (loss) before income taxes............. (7.0)% (5.6)% (2.3)% (1.9)% (3.2)% 1.9% 8.2%
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 1997
Revenue. Revenue increased 11.2% to $27.3 million for the three months
ended September 30, 1998 from $24.5 million for the three months ended September
30, 1997. Revenue for the three months ended September 30, 1997 included
approximately $3.1 million from two customers with whom the Company did not do
business in 1998. One was a high volume, low margin customer which ceased to be
a customer of the Company in December 1997, and the other was a specialized
international customer with whom the Company terminated its service agreement in
October 1997 due to collection problems. Exclusive of the revenue from these two
former customers, revenue increased by 27.5% from period to period. The
Company's customers totaled approximately 39,000 at September 30, 1998 and
29,000 at September 30, 1997. The components of revenue in each year reflect the
Company's initiative to become a facilities-based services provider. In the
three months ended September 30, 1998, on-net revenue and on-net billed customer
minutes were 65.9% and 53.5%, respectively, of total revenue and minutes. In the
three months ended September 30, 1997, the corresponding on-net revenue and
minutes represented 27.3% and 23.6%, respectively, of total revenue and minutes.
It is expected that long distance minutes and revenue attributable to on-net
customer traffic will exceed 75% of the totals by the first quarter of 1999. The
Company also anticipates that revenue growth will progressively increase through
the fourth quarter of 1998 and in each quarter of 1999 as a result of a
significant increase in the size of the Company's direct sales force and more
extensive product offerings.
Costs of Services. Costs of services for the three months ended September
30, 1998 totaled $20.4 million, an increase of 3.3% from the $19.8 million
incurred in the corresponding period in 1997. Costs of services includes costs
of origination, transport and termination of on-net and off-net
26
32
traffic, exclusive of depreciation and amortization. As a percentage of revenue,
costs of services decreased to 74.8% in 1998 from 80.5% in 1997, reflecting the
increase in on-net traffic, the reduced costs of carrying off-net traffic and a
reduction in costs of originating and terminating traffic.
On-net revenue, as described above, increased significantly as a percentage
of total revenue. As a percentage of revenue, costs of services related to
domestic on-net revenue are significantly less than those of off-net revenue.
That on-net percentage, however, combines domestic traffic with international
wholesale traffic. As a percentage of on-net revenue, costs of services on
international wholesale traffic are higher than the corresponding percentage for
domestic traffic. International wholesale traffic is expected to grow at rates
in excess of domestic traffic, which will raise the overall costs of services as
a percentage of total revenue related to on-net traffic. Costs of originating
and terminating traffic have declined in part as a result of provisions mandated
by the Telecommunications Act of 1996. Finally, increased competition in the
long distance telecommunications industry resulted in slightly lower pricing in
1998, as compared to 1997.
Selling, General and Administrative. Selling, general and administrative
expenses increased by 41.4% to $8.2 million for the three months ended September
30, 1998 from $5.8 million for the three months ended September 30, 1997, and
increased as a percentage of revenue to 29.9% from 23.6% for the corresponding
periods. Within selling, general and administrative expenses, the largest
component is personnel and related expenses, which combines all wages and
salaries, along with commissions earned by the Company's sales force. These
expenses increased by 51.7% from 1997 to 1998, reflecting an increase in the
number of employees. Other expenses within selling, general and administrative
expenses increased as a result of the Company's ongoing growth.
In April 1998, the Company commenced its initiative to expand its 96-member
sales force and, as of September 30, 1998, the sales force had increased to 201
members. The Company expects to further expand its sales force to approximately
300 by year end 1998 and to approximately 400 by year end 1999. Variable
expenses, including commissions paid to independent marketing representatives
and the provision for doubtful accounts, are expected to increase with future
sales growth. In addition, the Company expects to expend a significant amount of
funds through 1999 towards the recruitment of personnel, marketing, advertising
and promotion, and professional services in conjunction with its growth plans
and initiatives to expand its service offerings. It is expected that there will
be a time lag between the incurring of these expenses and any resulting increase
in revenue. See "Risk Factors -- Management of Growth".
Depreciation and Amortization. Depreciation and amortization increased to
$498,000 for the three months ended September 30, 1998 from $257,000 for the
three months ended September 30, 1997, reflecting the Company's network build
out and capital additions to the Company's internal computer systems. Future
depreciation expense will increase as assets related to the Company's network
expansion plans are placed into service.
Interest. Interest expense, net of interest income, increased to $153,000
for the three months ended September 30, 1998 from $136,000 for the three months
ended September 30, 1997. This increase resulted from interest on capital leases
entered into in the latter half of 1997 to finance network additions and
internal computer systems, interest incurred related to notes payable entered
into in December 1997, and additional interest related to higher levels of
revolving credit borrowings in 1998, offset somewhat by interest earned on
investments held in September 1998.
Income Taxes. In the three months ended September 30, 1998, income taxes
of $295,000 were provided. In September 1998, the Company converted from an S
Corporation to a C Corporation, and a $480,000 provision for deferred taxes was
recorded to reflect the change in status. Offsetting this provision were tax
credits recorded at statutory rates for both Federal and state taxes. Prior to
conversion, income taxes were provided solely for state tax purposes. State
income taxes in the comparable period of 1997 totaled $17,000.
Net Loss and Net Loss Applicable to Common Stockholders. As a result of
the aforementioned increases in revenue, operating expenses, depreciation and
amortization, interest income and
27
33
expense, the Company incurred a net loss of $2.2 million for the three months
ended September 30, 1998, compared to a net loss of $1.4 million for the three
months ended September 30, 1997.
In September 1998, the Company accrued dividends to be paid in the form of
additional shares of Series A Preferred Stock, totaling $450,000, and recorded
$48,000 of accretion of offering expenses and discount on this preferred stock
issued September 3, 1998. The resulting net loss applicable to common
stockholders for the three months ended September 30, 1998 was $2.7 million,
compared to a $1.4 million loss in the corresponding period in 1997.
EBITDA. Earnings before net interest, taxes, depreciation and amortization
("EBITDA") decreased $274,000 to negative $1,255,000 for the three months ended
September 30, 1998 from negative $980,000 for the three months ended September
30, 1997. This decrease was due to the changes in revenues, network development,
operations and selling, general and administrative expenses discussed above.
NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1997
Revenue. Revenue increased 7.7% to $79.6 million for the nine months ended
September 30, 1998 from $73.9 million for the nine months ended September 30,
1997. Revenue for the nine months ended September 30, 1997 included
approximately $9.9 million from two customers, described above, with whom the
Company did not do business in 1998. Exclusive of the revenue from these two
former customers, revenue increased by 24.4% from period to period. The
components of revenue in each year reflect the Company's initiative to become a
facilities-based services provider. In the nine months ended September 30, 1998,
on-net revenue and on-net billed customer minutes were 57.3% and 41.4%,
respectively, of total revenue and minutes. In the nine months ended September
30, 1997, the corresponding on-net revenue and minutes represented 23.4% and
17.8%, respectively, of total revenue and minutes.
Costs of Services. Costs of services for the nine months ended September
30, 1998 totaled $59.2 million, an increase of 1.8% from the $58.2 million
incurred in the corresponding period in 1997. As a percentage of revenue, costs
of services decreased to 74.4% in 1998 from 78.7% in 1997, reflecting the
increase in on-net traffic, the reduced costs of carrying off-net traffic and a
reduction in costs of originating and terminating traffic. Costs of originating
and terminating traffic have declined in part as a result of provisions mandated
by the Telecommunications Act of 1996. Finally, increased competition in the
long distance telecommunications industry resulted in slightly lower pricing in
1998, as compared to 1997.
Selling, General and Administrative. Selling, general and administrative
expenses increased by 22.8% to $20.1 million for the nine months ended September
30, 1998 from $16.4 million for the nine months ended September 30, 1997, and
increased as a percentage of revenue to 25.3% from 22.1% for the corresponding
periods. Within selling, general and administrative expenses, the largest
component is personnel and related expenses, which combines all wages and
salaries, along with commissions earned by the Company's sales force. These
expenses increased by 25.5% from 1997 to 1998, reflecting an increase in the
number of employees. In April 1998, the Company commenced its initiative to
expand its 96-member sales force, and as of September 30, 1998, the sales force
had increased to 201 members. Other expenses within selling, general and
administrative expenses increased as a result of the Company's ongoing growth.
Depreciation and Amortization. Depreciation and amortization increased to
$1,449,000 for the nine months ended September 30, 1998 from $581,000 for the
nine months ended September 30, 1997, reflecting the Company's network build out
and capital additions to the Company's internal computer systems.
Interest. Interest expense, net of interest income, increased to $719,000
for the nine months ended September 30, 1998 from $253,000 for the nine months
ended September 30, 1997. This increase resulted from interest on capital leases
entered into in the latter half of 1997 to finance
28
34
network additions and internal computer systems, interest incurred related to
notes payable entered into in December 1997, and additional interest related to
higher levels of revolving credit borrowings in 1998, offset somewhat by
interest earned on investments held in September 1998.
Other Income (Expense). Other income totaled $3.5 million in the nine
months ended September 30, 1997 and $35,000 in the nine months ended September
30, 1998. The $3.5 million in 1997 principally related to warrants. In 1995, the
Company transferred (the "Transfer") certain customers to whom it provided long
distance and toll free telecommunications services pursuant to certain AT&T
resale contracts (the "AT&T contracts") to Tel-Save Holdings, Inc. ("Tel-Save").
Concurrent with the Transfer, the Company's obligations to AT&T under the AT&T
contracts were terminated without obligation or liability on the part of the
Company. Prior to the time of this transaction, there was no value recorded in
the financial statements related to these customers. In consideration of the
Transfer, the Company received four separate warrants to purchase a total of
1,365,000 shares of Tel-Save common stock at an exercise price of $4.67 per
share (after reflecting stock splits through December 31, 1997). Each warrant
vested separately based on the retail revenue generated by Tel-Save with respect
to the transferred customers, which had to exceed specified levels for three
consecutive months. The warrants expired at various dates through 1997. In
addition to the Warrant Agreements, the Company was subject to a Voting Rights
Agreement whereby Tel-Save retained the right to hold and vote the stock until
the Company informed Tel-Save it wished to sell the stock. Upon receiving such
notice from the Company, Tel-Save was obligated either to purchase the stock at
the price offered by the Company or, alternatively, to deliver the common stock
certificates to the Company.
In 1996, the vesting requirements were met with respect to the first three
warrants. The vesting requirement for the first warrant was met at the end of
the third quarter of 1996, entitling the Company to purchase 600,000 shares of
Tel-Save common stock. The Company exercised this warrant and sold the related
common stock, which had previously been registered, resulting in net proceeds
and other income of $1.4 million in the third quarter of 1996.
The vesting requirements with respect to the second and third warrants were
met in November 1996. The second warrant entitled the Company to purchase
300,000 shares of Tel-Save common stock prior to January 8, 1997. The third
warrant entitled the Company to purchase 150,000 shares of Tel-Save Common stock
prior to June 10, 1997. The warrants were valued upon vesting at approximately
$2.1 million using the Black-Scholes valuation model. The significant
assumptions in the valuation model were an interest rate of 5.1%, warrant lives
reflecting the respective expiration periods, expected volatility of 50% and no
dividend rate. At December 31, 1996, the warrants had not yet been exercised and
were classified as investments. The value of the warrants at December 31, 1996
was the fair value recorded by the Company at the date of vesting. Other income
of $2.1 million related to the second and third warrants was recognized in the
fourth quarter of 1996. On January 6, 1997, the Company exercised the second and
third warrants and paid Tel-Save the total exercise price of $2.1 million.
The vesting requirement with respect to the fourth warrant was met in June
1997, entitling the Company to purchase 315,000 shares of Tel-Save common stock.
The fourth warrant was valued upon vesting at approximately $3.4 million using
Black-Scholes valuation model. The significant assumptions in the valuation
model were an interest rate of 5.1%, a warrant life reflecting the June 1997
expiration period, expected volatility of 50% and no dividend rate. On June 4,
1997, the Company exercised the warrant, paid Tel-Save the exercise price of
$1.5 million and recorded other income of approximately $3.4 million.
Income Taxes. In the nine months ended September 30, 1998, income taxes of
$429,000 were provided. In September 1998, the Company converted from an S
Corporation to a C Corporation, and a $480,000 provision for deferred taxes was
recorded to reflect the change in status. Offsetting this provision were tax
credits recorded at statutory rates for both Federal and state taxes. Prior to
29
35
conversion, income taxes were provided solely for state tax purposes. State
income taxes in the comparable period of 1997 totaled $42,000.
Net Income (Loss) and Net Income (Loss) Applicable to Common
Stockholders. As a result of the aforementioned increases in revenue, operating
expenses, depreciation and amortization, net interest expense, the Company
incurred a net loss of $2.3 million for the nine months ended September 30,
1998, compared to net income of $2.0 million for the nine months ended September
30, 1997.
In September 1998, the Company accrued dividends to be paid in the form of
additional shares of Series A Preferred Stock totaling $450,000 and recorded
$48,000 of accretion of offering expenses and discount on this preferred stock
issued September 3, 1998. The resulting net loss applicable to common
stockholders for the nine months ended September 30, 1998 was $2.7 million,
compared to net income of $2.0 million in the corresponding period in 1997.
EBITDA. EBITDA decreased approximately $2.5 million to $386,000 for the
nine months ended September 30, 1998 from $2.9 million for the nine months ended
September 30, 1997. This decrease was due to income in 1997 related to warrants,
offset by increases resulting from changes in revenues, network development,
operations and selling, general and administrative expenses discussed above.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Revenue. Revenue increased by 30.7% to $98.2 million in 1997 from $75.1
million in 1996, primarily related to an increase in the Company's customer
base. The Company's customers totaled approximately 30,000 at the end of 1997
and 19,000 at the end of 1996. Revenue in 1996 also included approximately $1.8
million related to the amortization of credits received through AT&T sales
promotions on three-year contracts that were fully amortized by year end 1996.
Costs of Services. Costs of services increased to $78.1 million in 1997
from $57.2 million in 1996, a 36.5% increase, and increased as a percentage of
revenue to 79.5% in 1997 from 76.1% in 1996. The increase as a percentage of
revenue resulted from several factors. Revenue in 1996 included $1.8 million of
nonrecurring revenue derived from the amortization of the AT&T credits described
above. In mid-1996, the Company began to operate its own network, incurring
start up costs related to investment in these facilities. The first network
switch, deployed in Quincy, Massachusetts in June 1996, did not begin to carry
any significant traffic until late 1996. A second switch, deployed in Orlando,
Florida in November 1997, did not carry any significant traffic in 1997. In
1997, the Company began to transmit international traffic through the Quincy
switch, which generates percentages significantly below domestic on-net traffic.
In addition, initiatives undertaken to provision existing customer traffic from
off-net to on-net generally did not commence until the latter part of 1997 and,
consequently, the improved percentages generated by on-net traffic did not
significantly impact the results for the year. Finally, increased competition in
the long distance telecommunications industry resulted in slightly lower pricing
in 1997, as compared to 1996.
Selling, General and Administrative. Selling, general and administrative
expenses increased by 33.7% to $25.7 million in 1997 from $19.2 million in 1996,
and increased as a percentage of revenue to 26.2% in 1997 from 25.6% in 1996.
Personnel and related expenses, the largest component of selling, general and
administrative expenses, decreased by 1.5% from 1996 to 1997. A decrease in the
direct sales force was principally offset by an expansion of administrative
services, including customer service and provisioning personnel, to support the
revenue growth. Sales offices were added in 1997 in conjunction with the
November 1997 deployment of the Company's switch in Orlando, Florida. Other
selling, general and administrative expenses also increased as a result of the
revenue and personnel growth, including rent and utilities for additional
offices and commissions paid to independent marketing representatives. The
provision for doubtful accounts increased by $3.0 million in 1997 from 1996,
principally relating to two former customers and an increase in the estimate of
the bad debt reserve proportionate to the increase in revenue. In November 1997,
the
30
36
Company fully provided for the receivables from these two former customers. The
Company ceased its relationship with one of these customers based upon
diminishing payment experience and the customer's inability to provide worthy
collateral. Subsequently, this former customer ceased operations. The other
customer's receivable was fully reserved when a collection arrangement was not
honored and additional disputes arose.
Depreciation and Amortization. Depreciation and amortization expense
increased to $994,000 in 1997 from $533,000 in 1996 as a result of capital
additions for the Company's network build-out and internal computer systems. The
Company's internal computer hardware was significantly upgraded in November
1997. Future depreciation expense will increase as assets related to the
Company's network expansion plans are placed into service.
In August 1997, upon review of the Company's experience and expectations
for upgrades and replacement of equipment, including information gathered during
the process of financing such equipment, the Company changed its estimate of the
useful life of its switching equipment from 12 years to 5 years. The Company
also reviewed publicly available industry data on telecommunications equipment,
which confirmed that the estimate of useful lives of the Company's
telecommunications equipment, which was entirely switching equipment at that
time, reasonably approximated 5 years. The Company also assessed that there had
been no significant decline in the market value of its switching equipment since
purchased and that the market value exceeded the net book value of the equipment
at the time of the change in estimate. This was confirmed by the Company's
ability to enter into a sale and leaseback of the switches for the approximate
book value, completed at the same time as the change in estimate.
Depreciation expense in the nine months ended September 30, 1997 was
approximately $114,000 less than what would have otherwise been reported had the
change been previously made.
Interest. Interest expense, net of interest income, increased from
$217,000 in 1996 to $471,000 in 1997. This interest relates to a higher level of
revolving credit borrowings in 1997, interest on capital leases entered into in
the latter half of 1997 and interest incurred related to notes payable entered
into in December 1997.
In 1995, the Company transferred (the "Transfer") certain customers to whom
it provided long distance and toll free telecommunications services pursuant to
certain AT&T resale contracts (the "AT&T contracts") to Tel-Save Holdings, Inc.
("Tel-Save"). Concurrent with the Transfer, the Company's obligations to AT&T
under the AT&T contracts were terminated without obligation or liability on the
part of the Company. Prior to the time of this transaction, there was no value
recorded in the financial statements related to these customers. In
consideration of the Transfer, the Company received four separate warrants to
purchase a total of 1,365,000 shares of Tel-Save common stock at an exercise
price of $4.67 per share (after reflecting stock splits through December 31,
1997). Each warrant vested separately based on the retail revenue generated by
Tel-Save with respect to the transferred customers, which had to exceed
specified levels for three consecutive months. The warrants expired at various
dates through 1997. In addition to the Warrant Agreements, the Company was
subject to a Voting Rights Agreement whereby Tel-Save retained the right to hold
and vote the stock until the Company informed Tel-Save it wished to sell the
stock. Upon receiving such notice from the Company, Tel-Save was obligated
either to purchase the stock at the price offered by the Company or,
alternatively, to deliver the common stock certificates to the Company.
In 1996, the vesting requirements were met with respect to the first three
warrants. The vesting requirement for the first warrant was met at the end of
the third quarter of 1996, entitling the Company to purchase 600,000 shares of
Tel-Save common stock. The Company exercised this warrant and sold the related
common stock, which had previously been registered, resulting in net proceeds
and other income of $1.4 million in the third quarter of 1996.
31
37
The vesting requirements with respect to the second and third warrants were
met in November 1996. The second warrant entitled the Company to purchase
300,000 shares of Tel-Save common stock prior to January 8, 1997. The third
warrant entitled the Company to purchase 150,000 shares of Tel-Save Common stock
prior to June 10, 1997. The warrants were valued upon vesting at approximately
$2.1 million using the Black-Scholes valuation model. The significant
assumptions in the valuation model were an interest rate of 5.1%, warrant lives
reflecting the respective expiration periods, expected volatility of 50% and no
dividend rate. At December 31, 1996, the warrants had not yet been exercised and
were classified as investments. The value of the warrants at December 31, 1996
was the fair value recorded by the Company at the date of vesting. Other income
of $2.1 million related to the second and third warrants was recognized in the
fourth quarter of 1996. On January 6, 1997, the Company exercised the second and
third warrants and paid Tel-Save the total exercise price of $2.1 million.
The vesting requirement with respect to the fourth warrant was met in June
1997, entitling the Company to purchase 315,000 shares of Tel-Save common stock.
The fourth warrant was valued upon vesting at approximately $3.4 million using
Black-Scholes valuation model. The significant assumptions in the valuation
model were an interest rate of 5.1%, a warrant life reflecting the June 1997
expiration period, expected volatility of 50% and no divdend rate. On June 4,
1997, the Company exercised the warrant, paid Tel-Save the exercise price of
$1.5 million and recorded other income of approximately $3.4 million.
On November 7, 1997, Tel-Save filed a registration statement with the SEC,
listing the Company as a selling shareholder with respect to 765,000 shares (the
total shares purchased by the Company, after reflecting stock splits, under the
second, third and fourth warrants). Following the registration of the common
stock, the Company intended to immediately sell the shares of Tel-Save, which
had a market value of approximately $16.6 million at that date, as it had done
previously with respect to the shares acquired upon exercise of the first
warrant. Accordingly, all activities necessary for the transfer of the
certificates were completed and the Company issued a demand to Tel-Save for the
common stock certificates or, alternatively, requested that Tel-Save purchase
the shares. Throughout the remainder of the fourth quarter, Tel-Save refused to
deliver the common stock certificates to the Company.
In order to take physical possession of the Tel-Save common stock
certificates, the Company filed a lawsuit against Tel-Save in January 1998. On
June 24, 1998, a settlement agreement was signed between the parties pursuant to
which the Company received a total of $9.5 million from Tel-Save. As part of the
settlement, all 765,000 shares were either returned to or repurchased by Tel-
Save. Following the June 1998 settlement, there are no continuing obligations
between the parties. Accordingly, the Company's investment in Tel-Save at
December 31, 1997 was valued at the final negotiated payment. This settlement
resulted in approximately $422,000 other income, recorded in the fourth quarter
of 1997.
Net Loss. As a result of the aforementioned increases in revenue,
operating expenses, depreciation and amortization, interest income and expense,
the Company incurred a net loss of $3.2 million for the year ended December 31,
1997, compared to net income of $1.4 million for the year ended December 31,
1996.
EBITDA. EBITDA was negative $1.7 million for the year ended December 31,
1997 compared to positive $2.2 million for the year ended December 31, 1996.
This decline was due to the changes in revenue, network development, operations
and selling, general and administrative expenses and other income discussed
above.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Revenue. Revenue increased by 53.2% to $75.1 million in 1996 from $49.0
million in 1995, primarily related to an increase in the customer base. The
Company's customers totaled approximately 19,000 at the end of 1996 and 9,000 at
the end of 1995. In 1995, the Company's revenue was
32
38
entirely generated from off-net traffic. In 1996, the Company installed its
first network switch, but less than 1% of 1996 revenue was generated on-net.
Revenue in 1996 and 1995 also included approximately $1.8 million and $3.3
million, respectively, related to the amortization of credits received through
AT&T sales promotions.
Costs of Services. Costs of services increased to $57.2 million in 1996
from $35.1 million in 1995, a 62.6% increase, and increased as a percentage of
revenue to 76.1% in 1996 from 71.5% in 1995. The increase as a percentage of
revenue resulted from the inclusion in revenue of non-recurring AT&T credits of
$3.3 million in 1995 as compared to $1.8 million in 1996. Also contributing to
the percentage increase were start up costs in 1996 related to the installation
of the Company's first network switch, which was deployed in June 1996.
Selling, General and Administrative. Selling, general and administrative
expenses increased by 8.6% to $19.2 million in 1996 from $17.7 million in 1995,
but decreased as a percentage of revenue to 25.6% in 1996 from 36.1% in 1995.
Personnel and related expenses, the largest component of selling, general and
administrative expenses, decreased by 6.7% from 1995 to 1996, reflecting a
decrease in the direct retail sales force. Other selling, general and
administrative expenses increased as a result of revenue growth.
Depreciation and Amortization. Depreciation and amortization increased to
$539,000 in 1996 from $276,000 in 1995, related to $2.1 million of capital
expenditures in 1996, including $1.5 million for switching equipment.
Interest Expense. In 1996, when the Company entered into and first began
to borrow under its Former Bank Credit Facility (as defined below), net interest
expense resulted, totaling $217,000. In 1995, the Company did not have any
revolving credit borrowings and generated interest income, net of interest
expense on long-term debt, of $162,000.
Other Income. Other income totaled $3.5 million in 1996 and $7.9 million
in 1995. In 1995, the Company provided long distance services to certain
customers ("DNS Customers") pursuant to an AT&T Distributed Network Services
Resale Contract (the "DNS Contract"). In June 1995, the Company transferred the
DNS Contract to EqualNet Holdings Corp. for cash totaling approximately $8.4
million, and EqualNet Holdings Corp. became the provider of long distance
services to the DNS Customers. Prior to the time of this transaction, there was
no value recorded in the financial statements related to the DNS Customers.
Concurrent with the transfer of the DNS Contract, the Company's obligations to
AT&T pursuant to the DNS Contract were terminated and there were no continuing
obligations between the Company and EqualNet Holdings Corp. Accordingly, the
$8.4 million was recognized as miscellaneous income when received.
In a separate transaction in 1995, the Company transferred (the "Transfer")
certain customers to whom it provided long distance and toll free
telecommunications services pursuant to certain AT&T resale contracts (the "AT&T
contracts") to Tel-Save Holdings, Inc. ("Tel-Save"). Concurrent with the
Transfer, the Company's obligations to AT&T under the AT&T contracts were
terminated without obligation or liability on behalf of the Company. Prior to
the time of this transaction, there was no value recorded in the financial
statements related to these customers. In consideration of the Transfer, the
Company received four separate warrants to purchase a total of 1,365,000 shares
of Tel-Save common stock at an exercise price of $4.67 per share (after
reflecting stock splits through December 31, 1997). Each warrant vested
separately based on the retail revenue generated by Tel-Save with respect to the
transferred customers, which had to exceed specified levels for three
consecutive months. The warrants expired at various dates through 1997. In
addition to the Warrant Agreements, the Company was subject to a Voting Rights
Agreement whereby Tel-Save retained the right to hold and vote the stock until
the point in time when the Company informed Tel-Save it wished to sell the
stock. Upon receiving such notice from the Company, Tel-Save was obligated
either to purchase the stock at the price offered by the Company or,
alternatively, to deliver the common stock certificates to the Company.
33
39
In 1996, the vesting requirements were met to exercise the first three
warrants. The vesting requirement with respect to the first warrant was met at
the end of the third quarter of 1996, entitling the Company to purchase 600,000
shares of Tel-Save common stock. The Company exercised this warrant and sold the
related common stock, which had previously been registered, resulting in net
proceeds and other income of $1.4 million in the third quarter of 1996.
The vesting requirements with respect to the second and third warrants were
met in November 1996. The second warrant entitled the Company to purchase
300,000 shares of Tel-Save common stock prior to January 8, 1997. The third
warrant entitled the Company to purchase 150,000 shares of Tel-Save common stock
prior to June 10, 1997. The warrants were valued upon vesting at approximately
$2.1 million using the Black-Scholes valuation model. The significant
assumptions in the valuation model were an interest rate of 5.1%, warrant lives
reflecting the respective expiration periods, expected volatility of 50% and no
dividend rate. At December 31, 1996, the warrants had not yet been exercised and
were classified as investments. The value of the warrants at December 31, 1996
was the fair value recorded by the Company at the date of vesting. Other income
of $2.1 million related to the second and third warrants was recognized in the
fourth quarter of 1996.
Net Income. As a result of the aforementioned increases in revenue,
operating expenses, depreciation and amortization, and interest income and
expense, net income decreased $2.3 million, or 62%, to $1.4 million for the year
ended December 31, 1996, from $3.7 million for the year ended December 31, 1995.
EBITDA. EBITDA was $2.2 million for the year ended December 31, 1996
compared to $4.1 million for the year ended December 31, 1995. This decrease was
due to the changes in revenue, network development, operations and selling,
general and administrative expenses and other income discussed above.
QUARTERLY RESULTS
The following table sets forth certain unaudited financial data of the
Company for each of the quarters in 1996 and 1997 and for the first three
quarters of 1998. This information has been derived from unaudited financial
statements that, in the opinion of management, reflect all adjustments
(consisting only of normal recurring adjustments) necessary for a fair
presentation of such quarterly information. The operating results for any
quarter are not necessarily indicative of results to be expected for any future
period. Income taxes are included in other income (expense), net.
QUARTER ENDED
------------------------------------------------
MARCH 31, JUNE 30, SEPT. 30, DEC. 31,
1996 1996 1996 1996
--------- -------- --------- --------
(IN THOUSANDS)
Revenue......................................... $17,128 $17,782 $18,687 $21,538
Costs of services............................... 13,865 12,901 13,909 16,533
Selling, general and administrative............. 5,137 4,468 4,346 5,273
Depreciation and amortization................... 105 130 136 168
------- ------- ------- -------
Operating income (loss)......................... (1,979) 283 296 (436)
Interest income................................. 21 16 20 37
Interest expense................................ (62) (83) (85) (84)
Other income (expense), net..................... 7 23 1,400 2,100
------- ------- ------- -------
Net income (loss)............................... $(2,013) $ 239 $ 1,631 $ 1,617
======= ======= ======= =======
34
40
QUARTER ENDED
------------------------------------------------
MARCH 31, JUNE 30, SEPT. 30, DEC. 31,
1997 1997 1997 1997
--------- -------- --------- ---------
(IN THOUSANDS)
Revenue......................................... $24,740 $24,641 $24,540 $24,288
Costs of services............................... 19,110 19,330 19,753 19,913
Selling, general and administrative............. 5,127 5,440 5,803 9,334
Depreciation and amortization................... 156 168 257 413
------- ------- ------- -------
Operating income (loss)......................... 347 (297) (1,273) (5,372)
Interest income................................. 22 38 17 9
Interest expense................................ (83) (94) (153) (227)
Other income (expense), net..................... (9) 3,436 18 430
------- ------- ------- -------
Net income (loss)............................... $ 277 $ 3,083 $(1,391) $(5,160)
======= ======= ======= =======
QUARTER ENDED
----------------------------------
MARCH 31, JUNE 30, SEPT. 30,
1998 1998 1998
--------- -------- ---------
(IN THOUSANDS)
Revenue......................................... $25,202 $27,103 $27,283
Costs of services............................... 18,836 19,992 20,406
Selling, general and administrative............. 5,544 6,391 8,164
Depreciation and amortization................... 468 483 498
------- ------- -------
Operating income (loss)......................... 354 237 (1,785)
Interest income................................. 3 9 50
Interest expense................................ (285) (293) (203)
Other income (expense), net..................... 12 (109) (264)
------- ------- -------
Net income (loss)............................... $ 84 $ (156) $(2,202)
======= ======= =======
The Company could experience quarterly variations in revenue and operating
income as a result of many factors, including the introduction of new services
by the Company, actions taken by competitors, the timing of the acquisition or
loss of customers, the timing of additional selling, general and administrative
expenses incurred to acquire and support new or additional business and changes
in the Company's revenue mix among its various service offerings. Many of the
factors that could cause such variations are outside of the Company's control.
The Company plans its operating expenditures based on revenue forecasts, and a
revenue shortfall below such forecasts in any quarter could adversely affect the
Company's operating results for that quarter.
LIQUIDITY AND CAPITAL RESOURCES
OVERVIEW OF HISTORICAL CASH REQUIREMENTS
Since commencing operations in 1990, the Company has experienced
significant growth. Prior to 1994, the Company operated solely as an aggregator
of AT&T services and funded its growth principally with cash provided from
operating activities. In 1994, the Company became a reseller of Sprint services,
requiring additional funding to support the development of an infrastructure to
support provisioning, billing and servicing of customers billed under the
Network Plus name. Cash requirements in 1994 and 1995 were financed primarily by
cash credits received in 1993 and 1994 under AT&T promotions and by transfers of
AT&T contracts and customers to other telecommunications companies in 1995.
These transfers resulted in the receipt by the Company of a cash payment of $8.4
million and warrants to purchase common stock of Tel-Save. In 1996, the Company
further expanded its infrastructure and began to deploy its own network. To
support 1996 cash requirements, NPI entered into a $7.0 million revolving credit
agreement with Fleet National Bank ("Fleet") and a term loan for $1.0 million
with Fleet to allow for its initial purchase of network facilities, and
35
41
entered into a financing transaction involving the sale and lease back of the
Quincy switch. Cash flows in 1996 were supplemented by the exercise of Tel-Save
warrants and the subsequent sale of the underlying common stock, resulting in
total net proceeds of $1.4 million.
In 1997, the Company continued to expand its network and infrastructure. In
addition, $3.6 million was expended to exercise additional warrants for common
stock of Tel-Save. Cash needs in 1997 were met through the addition of capital
leases, including a financing transaction involving the sale and lease back of
the Company's two switches, utilization of a revolving credit facility,
refinancing of a portion of accounts payable to Sprint into a short-term
promissory note (the "Sprint Note") and receipt of loans totaling $1.8 million
from the Company's stockholders (the "Stockholder Loans").
On May 1, 1998, NPI entered into a $23.0 million revolving credit agreement
with Fleet (the "Former Bank Credit Facility"). Borrowings under this line were
used to repay the Sprint Note and the Stockholder Loans.
FINANCIAL CONDITION
Total assets were $54.2 million at September 30, 1998 compared to $35.6
million at December 31, 1997 and $22.9 million at December 31, 1996. Accounts
receivable increased by $2.0 million from 1996 to 1997, related to revenue
growth, and declined by $2.0 million in the first nine months of 1998 due to
improved collections. Prepaid expenses, other current assets, and accrued
liabilities all increased in relation to revenue growth. Accounts payable
fluctuations were due to timing of payments.
Investments represent the value ascribed to the exercised Tel-Save
warrants. As described above, the investment was liquidated for cash in the
amount of $9.5 million in June 1998 and was valued at December 31, 1997 at the
amount of cash received. At December 31, 1996, the investment was valued at
estimated fair value of $2.1 million using a Black-Scholes valuation model.
Property and equipment totaled $10.7 million at September 30, 1998, $7.0
million at December 31, 1997, and $3.1 million at December 31, 1996. Capital
expenditures in the first nine months of 1998 totalled $5.2 million, principally
related to payments made toward switches and network equipment being installed
in the fourth quarter. The increase in property and equipment in 1997 relates
primarily to approximately $2.5 million in network additions and $1.9 million in
computer equipment additions, net of depreciation, both of which were financed
through capital leases entered into in 1997. Upon entering into the capital
lease for the network equipment, the Company repaid a term loan entered into in
1996. Property and equipment is expected to grow through 1998 and beyond, as the
Company adds additional switches and other equipment to its existing network.
The Company owns its switches, located in Quincy, Massachusetts and
Orlando, pursuant to a sale-leaseback arrangement with Chase Equipment Leasing,
Inc. The Company initially purchased the switches for an aggregate purchase
price of $3.5 million and subsequently transferred title to the switches to its
lender and leased back the switches for five years. At the end of the lease
term, the Company has the option to purchase the switches for nominal
consideration. Payments under this lease arrangement totalled approximately
$68,000 in 1997 and require ongoing payments of approximately $68,000 per month.
The Company received a waiver from the lender for a violation of a financial
covenant under its capital leases which requires no two consecutive quarters
with net losses. At September 30, 1998, Company has classified the entire
capital lease liability as current based on the expectation that the Company
will repay the entire obligation in December 1998. The Company expects to
refinance the obligation prior to year end 1998.
During 1997, additional capital was required to continue to expand the
Company's business. Additional liquidity was achieved by the issuance of notes
payable. In December, the Company issued a promissory note to Sprint for the
repayment of $4.6 million previously classified as accounts payable. The note's
maturity was September 1998. The note's remaining balance of $3.7
36
42
million was repaid on May 1, 1998 from borrowings under the Former Bank Credit
Facility in effect at that time, as described below. In December 1997, the
Company borrowed $1.8 million pursuant to the Stockholder Loans. Interest was
paid monthly at the prevailing prime rate. The Stockholder Loans, including
accrued interest, were also repaid on May 1, 1998.
In January 1996, NPI entered into a revolving credit agreement with Fleet,
which provided for borrowings of up to $7.0 million, including letters of
credit. This agreement was due to expire on May 31, 1998 and was refinanced in
May 1998, as described below. Borrowings under this line in excess of $5.0
million were subject to a formula-based arrangement based upon a percentage of
accounts receivable. Interest was payable monthly at Fleet's prime rate or
available LIBOR options. The maximum borrowings under the agreement in 1997 and
1996 were $5.0 million and $3.0 million, respectively. At December 31, 1996 the
loan balance was $2.0 million, with no outstanding letters of credit. At
December 31, 1997, the loan balance was $4.5 million, with letters of credit of
$120,000 outstanding.
Cash provided by operating activities in the first nine months of 1998
totaled $7.6 million, principally due to the $9.5 million received in late June
related to the Tel-Save warrant settlement, offset by working capital changes.
At September 30, 1998, outstanding letters of credit totaled $1.2 million.
On May 1, 1998, NPI entered into the Former Bank Credit Facility with Fleet
and terminated the previously existing agreement. This agreement was in turn
terminated on October 7, 1998 upon entering into a new revolving credit
agreement, described below. The Former Bank Credit Facility had a term of three
years and provided for borrowings of up to $23.0 million, subject to a formula-
based arrangement based upon a percentage of accounts receivable. Interest was
payable monthly at Fleet's prime rate or, at the Company's option, 1.75% above
prevailing LIBOR rates. Proceeds from this financing were used to repay the
Sprint Note and the Stockholder Loans. At September 30, 1998, there were no
borrowings under the Former Bank Credit Facility, with letters of credit of $1.2
million outstanding.
In August 1998, the Company paid a dividend in the aggregate amount of $5.0
million. As a result, $2.5 million was distributed to each of Robert T. Hale and
Robert T. Hale, Jr. Following receipt of the dividend, Robert T. Hale, Jr.
reinvested $1.9 million in the Company (representing approximately the
distribution to Robert T. Hale, Jr., net of his estimated tax liability
resulting from such distribution), in the form of a long-term loan to the
Company; such loan, including interest, will be payable 10 days after the
redemption of the Series A Preferred Stock. The dividend distribution was funded
out of existing cash resources and the Fleet revolving credit facility. See
"Description of Certain Indebtedness" and "Certain Transactions".
The Company consummated the offering of Units including the Preferred
Shares (the "Initial Offering") on September 3, 1998. The net proceeds to the
Company of the Initial Offering, after deducting commissions and offering
expenses, were approximately $37.5 million. The Company used $9.8 million of the
net proceeds of the Initial Offering to pay down borrowings under the Fleet
agreement. The Company expects to use the remainder of the net proceeds to
finance the Company's anticipated expansion, including the expansion of its
local telecommunications infrastructure, information technology systems and
sales force; and for working capital.
Prior to the Initial Offering, the Company was an S Corporation and, as a
result, did not pay corporate Federal income taxes. Instead, the Company's
stockholders were liable for their share of taxes in respect of the Company's
taxable income. The Company had similar tax status in certain states that
recognize S Corporation status. Accordingly, in each year prior to 1998 the
Company distributed, and for the 1998 period prior to September 1998 the Company
will distribute, to its stockholders cash in amounts sufficient to enable the
Company's stockholders to pay Federal and state taxes on income of the Company
attributable to the stockholders and related tax preparation expenses. The
Company does not expect the distribution for the 1998 period prior to September
37
43
1998 to be material. During the years ended December 31, 1997, 1996 and 1995,
the Company distributed an aggregate of $601,000, $1.2 million and $1.9 million,
respectively, to its stockholders.
Dividends on the Series A Preferred Stock occurring on or before September
1, 2003 may be paid, at the Company's option, either in cash or by allowing such
dividends to be issued in the form of additional preferred stock. It is not
anticipated that the Company will pay any dividends in cash for any period
ending on or prior to September 1, 2003.
On October 7, 1998, the Company entered into a loan agreement with Goldman
Sachs Credit Partners L.P. and Fleet (the "New Revolving Credit Facility"),
concurrent with the closing of which the Company terminated the Former Bank
Credit Facility. The New Revolving Credit Facility has a term of 18 months.
Under the New Revolving Credit Facility, $30 million of the $60 million is
available based upon a percentage of accounts receivable. Interest is payable
monthly at one percent above the prime rate. The New Revolving Credit Facility
requires the Company, among other things, to meet minimum levels of revenues and
earnings before interest, taxes, depreciation and amortization, and not to
exceed certain customer turnover levels and debt to revenue ratios. See
"Description of Certain Indebtedness -- New Revolving Credit Facility".
The Company's ability to meet its projected growth is dependent upon its
ability to secure substantial additional financing in the future. The Company
estimates that, for 1998 and 1999, capital required for expansion of its
infrastructure and services and to fund negative cash flow will be approximately
$140 million. The Company believes that its current cash resources and available
cash from the New Revolving Credit Facility (see "Description of Certain
Indebtedness"), together with the proceeds of the Initial Offering, will be
sufficient to fund the Company's operating losses and planned capital
expenditures through the 18-month term of the New Revolving Credit Facility. The
Company believes it will be in compliance with all covenants under the New
Revolving Credit Facility throughout its term. The Company does not expect to
have sufficient available cash to repay such facility at maturity. Accordingly,
the Company expects that it will be required to refinance the full $60.0 million
of such facility. The Company currently expects to have additional financing
requirements beyond the maturity date of the New Revolving Credit Facility. To
meet its future financing requirements, sources of funding may include public
offerings or private placements of equity or debt securities, bank loans,
capital leases and additional capital contributions from new or existing
stockholders. The Company may be required to apply all or a portion of any such
financing to redeem all or a portion of the Series A Preferred Stock. There can
be no assurance that additional financing will be available to the Company or,
if available, that it can be obtained on a timely basis, on terms acceptable to
the Company, and within the limitations contained in the Company's commercial
lending agreements and the Certificate of Designation. Failure to obtain such
financing could result in the delay or abandonment of the Company's development
and expansion plans and could have a material adverse effect on the Company.
EXPANSION OF SERVICES AND FUTURE CASH REQUIREMENTS
The Company's strategic initiatives include the deployment of additional
long distance and international switches, the deployment of local switches, the
offering of new services such as local exchange and Internet access services,
the expansion of its sales force and other personnel and significant investment
in its information technology systems. These initiatives will require a
substantial amount of capital for, but not limited to, the installation of
network switches and related equipment, fiber, personnel additions and funding
of operating losses and working capital.
The Company believes that net proceeds from the Initial Offering, together
with cash flow generated from operations and borrowings available under the New
Revolving Credit Facility, will be sufficient to fund the Company's working
capital needs, planned capital expenditures and interest expense through the
18-month term of the New Revolving Credit Facility. The actual amount of capital
expenditures and the timing of such expenditures will depend on several factors,
including equipment and fiber availability, economic conditions, competition and
regulatory developments. The Company may also require additional financing,
which may include public or private debt and
38
44
equity financings, to enter into strategic alliances, acquire assets or
businesses or make investments toward achieving its strategic objectives. There
can be no assurance, however, that the Company will be able to raise sufficient
funds or do so on acceptable terms. Failure to obtain such financings could
result in the delay or abandonment or the Company's development and expansion
plans. Furthermore, there can be no assurance that actual capital needs and
expenditures will not be significantly higher than the Company's current
estimates. See "Risk Factors -- Negative Cash Flow and Operating Losses" and
"Risk Factors -- Substantial Future Capital Requirements; Need for Additional
Financing; Substantial Leverage".
IMPACT OF YEAR 2000
YEAR 2000 COMPLIANCE
Many computer systems experience problems handling dates beyond the year
1999. Therefore, some computer hardware and software will need to be modified
prior to the year 2000 in order to remain functional. The Company is currently
accessing the implication of Year 2000 issues on operations, in order to
determine the extent to which the Company may be adversely affected. The Company
expects to finish the assessment process by December 31, 1998. Based on the
internal assessment, which is substantially complete, the Company believes that
the majority of its software applications will be Year 2000 compliant by June
30, 1999. However, there can be no assurance that all systems will function
adequately beginning in the year 2000. There can also be no assurance that the
Company will not incur significant unanticipated costs in achieving Year 2000
compliance. Though limited testing of systems has been performed to date, the
Company had developed its systems with Year 2000 in mind, thus minimizing its
impact. The Company may conduct further testing and/or an external audit
following the conclusion of its internal assessment. To date there have been a
limited number of hours devoted to Year 2000 issues, with no additional cost
expended in systems upgrades directly relating to Year 2000 issues. Present
estimates for further expenditures of both employee time and expenses to address
Year 2000 issues are not expected to have a material impact on the operations
and cash flows of the Company. All expenditures will be expensed as incurred and
they are not expected to have a significant impact on the Company's ongoing
results of operations.
If the hardware or software comprising the Company's network elements
acquired from third-party vendors, the software applications of the long
distance carriers, local exchange carriers or others on whose services the
Company depends or with whom the Company's systems interface, or the software
applications of other suppliers, are not Year 2000 compliant, it could affect
the Company's systems, which could have a material adverse effect on the
Company. The Company is undertaking an informal survey of the Year 2000
compliance status of its suppliers, with responses indicating Year 2000
compliance at this time. In addition, the Company has reviewed the following
information concerning Sprint, solely as disclosed in its public filings. The
Year 2000 issue may affect the systems and applications of Sprint's customers,
vendors or resellers, such as the Company. Sprint has completed an inventory and
Year 2000 assessment of its principal computer systems, network elements,
software applications and other business systems. Sprint expects to
substantially complete the renovation of these computer systems, software
applications and the majority of the network elements and other business systems
by year-end 1998. Year 2000 testing commenced in the third quarter of 1998 and
will be completed during 1999. If compliance is not achieved in a timely manner
by Sprint or any significant related third party, the Year 2000 issue could have
a material adverse effect on the Company's operations.
Based on its assessments to date, the Company believes that it will not
experience any material disruption as a result of Year 2000 issues in internal
processes, information processing or interface with key customers, or with
processing orders and billing. At present, the Company has not developed
contingency plans but intends to determine whether to develop any such plan by
March 1, 1999. There can be no assurance that Year 2000 issues will not have a
material adverse effect on the Company's business, results of operations and
financial condition.
39
45
BUSINESS
THE COMPANY
OVERVIEW
Network Plus, founded in 1990, is a facilities-based integrated
communications provider ("ICP") offering switched long distance, data and
enhanced telecommunications services. The Company's customers consist primarily
of small and medium-sized businesses located in major markets in the
Northeastern and Southeastern regions of the United States. The Company also
provides international wholesale transport and termination services to major
domestic and international telecommunication carriers. In addition, the Company
intends to offer local services on a commercial basis in certain states
beginning in late 1998. As of September 30, 1998, the Company served over 39,000
customers representing in excess of 180,000 access lines and 30,000 toll-free
numbers. All customers are directly invoiced by the Company on a Network Plus
bill. As of September 30, 1998, the Company had a 201-person sales force located
in 12 regional offices, and in 1997 had total revenue of $98 million. In July
1998, Network Plus Corp. was incorporated in Delaware as a holding company. All
of the Company's operations continue to be conducted through its Massachusetts
operating subsidiary, Network Plus, Inc.
The Company purchases network components where justified by the volume of
originating and terminating traffic and leases components where it has a more
limited volume of such traffic. The Company has switches in Quincy,
Massachusetts and Orlando, and intends to add switches throughout the remainder
of 1998 and continuing through 1999 in Atlanta, Chicago, Los Angeles and New
York City as well as multiple local traffic switches in the Northeastern and
Southeastern regions of United States. In September 1998, over 60% of the
Company's revenue was generated by customer traffic carried on its network, and
the Company expects this percentage to increase as the Company further expands
its facilities-based infrastructure. The Company recently entered into two
20-year indefeasible right-of-use ("IRU") agreements pursuant to which it
acquired 625 route miles of dark fiber (1,830 digital fiber miles), that, when
fully deployed and activated, will form a redundant fiber ring connecting major
markets throughout New England and the New York metropolitan area and provide
the Company with significant transmission capacity.
The Company believes that, because of its large and highly focused sales
force and superior customer support, the Company will be successful in rapidly
acquiring new customers, continuing to migrate "off-net" long distance customers
to its network, cross-selling local services to its existing long distance
customers and maintaining a high rate of customer retention. The compounded
annual growth rate for the number of customers from year end 1994 to year end
1997 was 68%.
The Company's business strategy is to leverage its eight-year operating
history, existing customer base and substantial in-region experience to (i) be a
one-stop ICP offering a comprehensive array of bundled voice and data solutions,
(ii) acquire and retain market share through its direct sales force and focused
customer service, (iii) enhance its facilities-based infrastructure where
economically advantageous and continue the migration of traffic to its network,
(iv) build and retain market share through advanced technologies and an advanced
operational support system, (v) target the underserved market of small and
medium-sized businesses, with a focus on the Northeastern and Southeastern
regions of the United States, (vi) increase international wholesale sales and
(vii) expand through strategic acquisitions and alliances.
NETWORK INFRASTRUCTURE
The Company pursues a capital-efficient network deployment strategy that
involves owning switches and acquiring or leasing fiber optic transmission
facilities on an incremental basis to satisfy customer demand. The Company
believes that its switch-based, lease-or-acquire transport strategy provides
significant competitive advantages. By owning network components, the Company is
able to generate higher operating margins and maintain greater control over its
network operations. The Company structures its network expansion decisions in a
manner designed to (i) reduce up-front
40
46
capital expenditures required to enter new markets, (ii) avoid the risk of
stranded investment in under-utilized fiber networks and (iii) enter markets and
generate revenue and positive cash flow more rapidly than if the Company first
constructed its own facilities. Where market penetration does not economically
justify the deployment of its own network, the Company utilizes the networks of
alternative carriers.
In addition to its 625 route miles of dark fiber, Network Plus currently
owns and maintains (i) a Northern Telecom, Inc. ("Nortel") international gateway
and interexchange switch in Quincy, Massachusetts, and (ii) a Nortel
interexchange switch in Orlando. The Company is currently deploying both a
Nortel international gateway and interexchange switch in Los Angeles and a
Nortel interexchange switch in Chicago. The Company has a Network Operations
Center in Quincy, Massachusetts, which monitors the Company's entire network
from a central location, increasing the security, reliability and efficiency of
the Company's operations. The Company is also planning the deployment of local
switching facilities throughout the Northeastern and Southeastern regions of the
United States. The Company intends to further expand its network in geographic
areas where customer concentrations or traffic patterns make expansion
economically advantageous.
SERVICES
Network Plus offers retail telecommunications services primarily to small
and medium-sized businesses. Retail offerings currently include long distance
and toll-free services (both with and without Advanced Intelligent Network
("AIN") features), multiple access options, calling and debit card, paging,
data, and custom management control features. The Company plans to add local
exchange services, Internet services and additional AIN features in the latter
part of 1998 and into 1999. The Company also offers international wholesale
services primarily to interexchange carriers ("IXCs") and international
telecommunications carriers. In September 1998, retail and wholesale offerings
accounted for approximately 73% and 27%, respectively, of the Company's total
revenue.
LARGE AND GROWING SALES FORCE
As of September 30, 1998, Network Plus had a 201-member, highly focused
sales force consisting of a 190-person direct retail sales force, a six-person
international wholesale sales force and a five-person agent and reseller sales
force. The Company's sales approach is to build long-term relationships with its
customers, with the intent of becoming the single-source provider of their
telecommunications services. The Company trains its sales force in-house with a
customer-focused program that promotes increased sales through both customer
attraction and customer retention. All members of the sales force are given
incentives through a commission structure under which commissions are paid on an
ongoing basis for as long as the customer continues to purchase services from
the Company. This "lifetime residual" is intended to motivate the sales force to
remain actively involved with customers and participate in the customer
retention and support process. The Company believes that this customer
support-focused commission structure and in-house training are unique in the
industry and provide the Company with a competitive advantage in attracting and
retaining customers. The sales force currently is located in eight offices and,
by year end 1999, the Company intends to open additional sales offices and
expand its sales force to approximately 400 members. The Company expects that it
will continue to utilize a modular sales force structure and that existing
employees with substantial sales experience will manage new sales offices,
ensuring a continuation of the Company's customer-focused culture. The Company's
sales force director, regional sales directors, branch managers and team leaders
have an average employment tenure of over five years with the Company.
MANAGEMENT
Robert T. Hale, Jr., the Company's President, Chief Executive Officer,
Director and co-founder, has more than 10 years of experience in the
telecommunications industry. Robert T. Hale, the Company's Chairman and
co-founder, has more than eight years of experience in the telecommunications
industry, is a Director and former Chairman of the 600-member Telecommunications
41
47
Reseller Association ("TRA") and has been Chairman of the TRA's Underlying
Carrier Committee since 1992. Network Plus's eight-member Executive Officer
group has an average employment tenure of more than three years with the Company
and an average of over 11 years of experience in the telecommunications
industry. The Company believes that the quality, tenure and teamwork of its
management team will be critical factors in the implementation of its expansion
strategy.
MARKET OPPORTUNITY
As a result of the Telecommunications Act of 1996 (the "Telecommunications
Act") and other federal, state and international initiatives, numerous
telecommunications markets have been opened to competition. In addition, the
increasing globalization of the world economy, along with an increased reliance
on data transmission and Internet access, has expanded the traditional
telecommunications markets. After completing its planned expansion, the Company
expects to have 18 sales offices in 12 states in the Northeastern and
Southeastern regions of the United States. According to New Paradigm Resources
Group, Inc., at year end 1996 there were approximately 8.7 million business
lines in the Company's markets in the Northeastern region (the New England
states, New York and New Jersey) and 4.8 million business lines in the Company's
markets in the Southeastern region (Florida, Georgia, North Carolina, South
Carolina and Tennessee). The Company anticipates significant demand for its
services, based on its belief that small and medium-sized businesses are not
aggressively targeted by large providers and are underserved with respect to
customer service and support.
BUSINESS STRATEGY
Network Plus intends to undertake an aggressive growth strategy to meet its
goal of becoming the ICP of choice providing one-stop telecommunications
solutions to customers in its markets. The Company's future success will depend
upon its ability to implement this strategy. Unlike many emerging
telecommunications companies, the Company has an eight-year operating history.
The Company believes that the collective talent and telephony experience of its
management and employee base provide a competitive advantage and position the
Company to effectively implement its growth strategy, which includes the
following:
PROVIDE INTEGRATED TELECOMMUNICATIONS SERVICES
A key element in the Company's growth will be the implementation of a
marketing and operating plan that emphasizes an integrated voice and data
telecommunications solution. To a large extent, customers the Company expects to
target have not previously had the opportunity to purchase bundled services from
a single provider. The Company believes that these customers will prefer one
source for all of their telecommunications requirements, including products,
billing and service. The Company intends to be the single source of, and provide
a consolidated bill for, integrated local, long distance and other
telecommunications services, in addition to providing a single point of contact
for customer service, product inquiries, repairs and billing questions. The
Company believes that one-stop integrated communications services will enable it
to further penetrate its existing markets, expand its customer base, capture a
larger portion of its customers' total expenditures on telecommunication
services and increase customer retention.
EXPAND SALES FORCE AND FOCUS ON CUSTOMER SERVICE
The Company intends to significantly expand its sales force to both acquire
and support a growing customer base. The Company's sales force consisted, as of
September 30, 1998, of 201 members and is expected to grow to approximately 400
by year end 1999. To support its customer base, the Company provides customer
service 24 hours per day, 365 days per year, and estimates that its customer
service representatives currently have an average response time for answering
incoming calls of under 15 seconds. In addition, the commission structure of the
Company's direct retail sales force is designed to promote a high level of
ongoing customer care
42
48
and to assure that the sales staff remains actively involved in the customer
service process. Similarly, the compensation of customer support personnel is
designed to promote a high level of ongoing customer care and retention. The
Company believes that its sales and customer service processes have resulted in
a customer retention rate that is higher than that of many competitors and
differentiate the Company as a customer-focused ICP, giving it a competitive
advantage.
ENHANCE FACILITIES-BASED INFRASTRUCTURE
The Company intends to continue migration of customer traffic to its own
network and to cross-sell new services, such as local service, to its customers.
Expansion of the Company's facilities-based infrastructure with fiber and
switches will increase the proportion of telecommunications traffic that is
originated or terminated on its network, which the Company believes will result
in higher long-term operating margins and greater control over its network
operations. The Company's approach to network design is structured to minimize
the capital investment necessary to provide service, avoid spending capital
where not economically justifiable, better match the commitment of capital to
the onset of revenue-generating activities and generate cash flow more quickly.
Throughout the remainder of 1998 and continuing through 1999, the Company
intends to enhance its facilities by purchasing and installing numerous Nortel
and Lucent switches. See "-- Network -- Anticipated Network Expansion".
CONTINUE INVESTING IN ADVANCED TECHNOLOGIES AND AN ADVANCED OPERATIONAL
SUPPORT SYSTEM
Network Plus expects to continue to invest in advanced technologies that
provide strategic advantages by integrating the Company's network facilities
with its operational support system ("OSS") to enhance service response time.
The Company intends to deploy Nortel's Service Builder throughout its network
infrastructure, which will elevate the Company's network from a state-of-the-art
SS7 network to a next-generation intelligent network. Service Builder will also
permit the rapid deployment of "designer" intelligent network products and
services such as nationwide "follow me" numbers and Time-of-Day Routing, as well
as accelerate the Company's compliance with legally mandated services such as
local number portability ("LNP"). To support integrated provisioning and
customer care for all products and services, the Company is developing an open
scalable client/server Oracle-based platform that is expected to better
integrate its operations, both geographically and among departments. The Company
believes that these technologies will provide a long-term competitive advantage
by allowing a more rapid implementation of switched local services in its
markets, shortening the time between the receipt of a customer order and the
generation of revenue and enabling a higher level of focused customer care.
TARGET UNDERSERVED MARKETS WITH A SUPER-REGIONAL FOCUS
Network Plus intends to continue targeting small and medium-sized
businesses in the Northeastern and Southeastern regions of the United States,
its primary service areas, while expanding into other markets in the
Mid-Atlantic region, Illinois and California. The Company will seek to be among
the first to market integrated communications services in many of its markets.
The Company believes that the Northeastern and Southeastern regions are
particularly attractive due to a number of factors, including (i) the population
density in the Northeast; (ii) a large number of rapidly growing metropolitan
clusters in the Southeast, such as Atlanta, Miami/Fort Lauderdale and Orlando;
and (iii) the relatively small number of significant competitors to the
incumbent local exchange carriers ("ILECs"). In addition, the Company believes
that small and medium-sized businesses have been underserved by large
competitors with respect to customer service and support, and that its emphasis
on customer service, support and satisfaction provides it with a distinct
competitive advantage. The Company also believes that ILECs, such as regional
Bell operating companies ("RBOCs"), and the largest national carriers primarily
concentrate their sales and marketing efforts on residential and large business
customers and that the market for small and medium-sized businesses is generally
less competitive.
43
49
INCREASE INTERNATIONAL WHOLESALE SALES
The Company intends to continue targeting the sale of both international
and domestic termination and transport services to wholesale customers such as
large IXCs and international telecommunications carriers. The Company believes
that the international market represents a growing opportunity as a result of
the rapidly increasing globalization of the world economy. The Company's
international department is focused on the development of offshore
telecommunications relationships that provide the Company with lower
international termination costs as well as greater price stability than can be
obtained from U.S.-based carriers. These relationships are being leveraged by
the Company to obtain revenue through the domestic termination of offshore-
originated traffic, in addition to their primary role of enabling the Company to
offer international termination to its customers. The Company has already made
significant investments in its international network capabilities, including a
Nortel international gateway switch in Quincy, Massachusetts and lease and
indefeasible right of use ("IRU") arrangements for international submarine cable
capacity in TAT 12/13 and Americas I in the Atlantic Ocean and TPC-5 in the
Pacific Ocean, as well as various subsidiary feeder cable systems. In addition
to increasing revenue, the Company expects that its strategy of selling
international wholesale services will lower the cost of carrying all its
international traffic and result in more attractive service offerings in its
core retail markets. As of June 1, 1998, the Company provided its international
wholesale services to 13 domestic and foreign telecommunications carriers, and
in September 1998 such services accounted for 27% of the Company's revenue.
EXPAND THROUGH STRATEGIC ACQUISITIONS AND ALLIANCES
As part of its expansion strategy, the Company plans to consider
acquisitions, joint ventures and strategic alliances in telecommunications,
Internet access and other related service areas. The Company believes that
acquisitions of, and joint ventures and other strategic alliances with, related
or complementary businesses may enable it to more rapidly expand by adding new
customers, new services, additional customer service and technical support
capabilities, and additional cash flow. The acquisitions could be funded by
cash, bank financing or the issuance of debt or equity securities. The Company
is evaluating and often engages in discussions regarding various acquisition
opportunities but is not currently a party to any agreement for a material
acquisition.
SERVICE OFFERINGS
The Company offers retail telecommunications services primarily to small
and medium-sized businesses. The Company's retail service offerings currently
include long distance and toll-free services (both with and without AIN),
multiple access options, calling and debit card, paging, data, and custom
management control features. The Company plans to add local exchange service,
Internet services and additional AIN features in the latter part of 1998 and
into 1999. The Company also offers wholesale international and domestic
termination and transport services primarily to major domestic and international
telecommunications carriers.
CURRENT SERVICES
Retail Services. As of September 30, 1998, the Company provided retail
telecommunications services to over 39,000 customers, primarily small and
medium-sized businesses located in the Northeastern and Southeastern regions of
the United States. Retail services are sold through the Company's direct retail
sales force and, to a lesser extent, through resellers and independent marketing
representatives. In September 1998, retail telecommunications services accounted
for 73% of the Company's revenue. The Company's retail services include the
following:
- LONG DISTANCE: The Company offers a full range of switched and dedicated
domestic (interstate) and international long distance services, including
"1+" outbound origination and termination in all 50 states along with
global termination to over 225 countries. Long
44
50
distance services include interLATA services, and, where authorized,
intraLATA toll services. Additional long distance features include both
verified and non-verified accounting codes, collect calling,
station-to-station calling, third-party calling and operator-assisted
calling.
- TOLL-FREE SERVICES: The Company offers a full range of switched and
dedicated domestic (interstate) toll-free services, including toll-free
origination and termination in all 50 states, international toll-free
origination from 61 countries including Canada, and toll-free directory
assistance. AIN enhanced toll-free services include the following
features: Command Routing, Dialed Number Identification Service
("DNIS"), Area Code/Exchange Routing, Real Time Automatic Number
Identification Delivery, Day-of-Year Routing, Day-of-Week Routing,
Time-of-Day Routing and Percentage Allocation Routing.
- ACCESS OPTIONS: The Company offers its long distance and toll-free
customers multiple access options including dedicated access at DS0, DS1,
DS3 and E1 speed(s) and switched access. Dedicated access service
customers have the option of incorporating ISDN Primary Rate Interface
Protocol and switched access service customers have the option of
incorporating the ISDN Basic Rate Interface Protocol.
- CALLING CARD AND DEBIT CARD SERVICES: The Company offers nationwide
switched access customized calling card services and debit card services.
Customers have the option of calling cards that are personalized, branded
or generic.
- PAGING SERVICES: The Company offers advanced wireless paging services,
including digital and alphanumeric paging, personal identification number
("PIN") services, voice mail, news and sports feeds, and local geographic
coverage through and including national geographic coverage. Paging
services offered by the Company are provided through PageMart, Inc.
- DATA SERVICES: The Company offers advanced data transmission services,
including private line, point-to-point and Frame Relay Services. Data
services have multiple access options including dedicated access at DS0,
DS1, DS3 and E1 speed(s) and switched access. Frame relay services are
designed for bandwidth needs that vary over time and for inter-networking
geographically dispersed networks and equipment. Frame relay services
offered by the Company are provided through Sprint.
- CUSTOM MANAGEMENT CONTROL FEATURES: All of the Company's customers have
the option of customized management reporting features including
interstate/intrastate area code summaries, international destination
matrix, daily usage summaries, state summaries, time of day summaries,
duration distribution matrix, exception reporting of long duration calls,
and incomplete and blocked call reporting.
- LOCAL SERVICES: The Company is currently providing resold local services
in Connecticut, Florida, Massachusetts, New Hampshire, New York and Rhode
Island.
International Wholesale Services. The Company offers international
wholesale termination and transport services primarily to major domestic and
international telecommunications carriers. The Company believes its
international wholesale service offering is a strategic element in its overall
plan to expand its network and to generate and retain customer traffic. The
Company intends to build on its relationships with large domestic and
international carriers to purchase increased capacity and to otherwise support
its international service offerings. In addition, the Company expects that its
provision of comprehensive international services will lower the cost of
carrying international traffic and result in more attractive service offerings
in its core markets.
PLANNED SERVICES
Facilities-Based Local Services. The Company intends to begin offering
facilities-based local service in 1999 in Connecticut, Florida, Georgia,
Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Tennessee and
Vermont. The Company intends to deploy local facilities and
45
51
enter into additional interconnection agreements in target market areas as
market conditions warrant. As part of its plan to offer facilities-based local
exchange services, the Company (i) has obtained authority to provide local
service in Massachusetts, New Hampshire, Rhode Island, Connecticut, Florida and
New York and is currently in the process of obtaining CLEC status in the
remaining New England States, New Jersey, Georgia, Pennsylvania and Tennessee,
and (ii) has entered into interconnection agreements (for the purpose of gaining
access to the unbundled network elements necessary to offer facilities-based
local exchange services) with Bell Atlantic for Massachusetts, New Hampshire,
New York and Rhode Island; with Southern New England Telephone for Connecticut;
and with Bell South for Florida and Georgia. The Company has also commenced
either the negotiation of interconnection agreements, or the process of
identifying agreements the Company may choose to opt into, with respect to those
other states where the Company has obtained, or is in the process of obtaining,
CLEC status. See "Risk Factors -- Lack of Experience Offering Local and Other
Telecommunications Services", "Risk Factors -- Reliance on Leased Transport
Facilities and IRUs", "Risk Factors -- Lack of Interconnection and Peering
Agreements", "Risk Factors -- The Telecommunications Act and Other Regulation"
and "Government Regulation".
Internet Services. In 1999, the Company intends to begin offering
customers Internet access, including high quality dedicated and dial-up Internet
connection and IP transport.
Advanced Local Services. In connection with its local exchange service
offering, the Company intends to offer value added local exchange services on
both a resale basis (where such services are made available for resale) and on a
switched-facilities basis, including the following: ISDN, Centrex, Trunk Line
Service, Voice Mail (unbundled network element only), Hunt Sequencing, Three Way
Calling, Call Forwarding, Call Waiting, Speed Dial, Voice Dialing, All Call
Blocking, Selective Blocking, Foreign Exchange, Call Trace and Caller ID.
SALES AND MARKETING
OVERVIEW
The Company's sales force seeks to provide its existing and potential
customers with a comprehensive array of telecommunications services customized
for the increasingly convergent voice and data marketplace. The Company's
customers consist primarily of small and medium-sized businesses that have
telecommunications expenditures of less than $10,000 per month. The Company
believes that RBOCs and large long distance carriers historically have not
concentrated their sales and marketing efforts on this business segment, which
the Company believes represents a significant portion of the telecommunications
market. Through its sales force and its eight-year operating history, the
Company believes it has established itself as a recognized provider of high-
quality, competitively priced long distance services, with a reputation for
responsive customer care.
The Company's sales and marketing approach is to build long-term business
relationships with its customers, with the intent of becoming the single source
provider of all their telecommunications services. The Company trains its sales
force in house with a customer-focused program that promotes increased sales
through both customer attraction and customer retention. In addition, all
members of the sales force are given incentives through a commission structure
under which commissions are paid on an ongoing basis for as long as a customer
continues to purchase services from the Company. This "lifetime residual" is
intended to motivate the sales force to remain actively involved with customers
and participate in the customer retention and support process. The Company
believes that its customer support-focused commission structure and in-house
training are unique in the industry and provide the Company with a competitive
advantage in attracting and retaining customers.
Members of the Company's sales force are assigned to one of the following
sales groups: (i) the direct retail sales force, which markets the Company's
retail telecommunications services directly to end users; (ii) the reseller and
independent agent sales force, which markets the
46
52
Company's telecommunications services to resellers, independent marketing
representatives, associations and affinity groups; and (iii) the international
wholesale sales force, which sells the Company's international
telecommunications services on a wholesale basis to major domestic and
international telecommunications carriers.
SALES CHANNELS
DIRECT RETAIL SALES. The Company's direct retail sales force markets the
Company's retail telecommunications services directly to end users. As of
September 30, 1998 the Company employed 201 direct sales representatives working
in 12 regional offices. By year end 1999, the Company intends to open additional
sales offices. This anticipated expansion will result in a sales force with
approximately 400 direct retail sales personnel located in offices throughout
the Northeastern and Southeastern regions of the United States. See "Risk
Factors -- Management of Rapid Growth".
The sales force is led by Robert T. Hale, Jr., who has over 10 years of
telecommunications sales experience. The direct sales force is divided into two
regions: (i) a Northeastern region, headed by a regional sales director with
over seven years of telecommunications sales experience with the Company; and
(ii) a Southeastern region, headed by a regional sales director with over seven
years of telecommunications sales experience with the Company. Each of the
Company's existing 12 sales offices is headed by a branch manager and is further
sub-divided into smaller sales teams, each of which is headed by a team leader
who directly oversees the day-to-day sales activities of his or her team and
acts as a mentor to its members. Teams generally consist of eight to 10 sales
representatives.
The Company's direct retail sales force has a proven management structure
based on a "growth from within" philosophy. As the Company opens a sales office
in a new geographic area, it identifies a branch manager and team leader to head
the new office. New branch managers are typically chosen from among the
Company's experienced team leaders, and team leaders are typically chosen from
among the Company's experienced sales representatives. Because these new
positions represent promotion opportunities, the Company has been successful in
opening new offices with management teams having significant Network Plus work
experience. As branch managers and team leaders relocate to offices in new
geographic areas, they hire new sales representatives from the area. All new
sales representatives are required to receive formal in-house training, where
they are expected to gain a thorough knowledge of the Company's services and the
telecommunications industry. After formal training, sales representatives are
permitted to pursue customers but are required to participate in a continuing
mentoring program. The Company believes this philosophy is a competitive
advantage in the attraction and long-term retention of sales personnel.
The Company also telemarkets its long distance services, primarily to small
businesses and residential users. As of September 30, 1998, telemarketing
activities were conducted by 10 employees located at the Company's telemarketing
center in Largo, Florida, which was established in the fourth quarter of 1997.
47
53
The following chart sets forth each existing and targeted new Company
office location, the planned opening date for each targeted new office, the
number of direct sales representatives currently located in each office and the
number of direct retail sales representatives intended to be located in each
office at year end 1998 and 1999.
DIRECT RETAIL SALES STAFF
-----------------------------------------------
TOTAL AT PLANNED PLANNED
TARGET OFFICE SEPTEMBER 30, TOTAL AT YEAR TOTAL AT YEAR
OFFICE LOCATION OPENING DATE 1998 END 1998 END 1999
- ------------------------------------ ------------- ------------- ------------- -------------
Atlanta, GA......................... Existing 21 32 40
Fort Lauderdale, FL................. Existing 20 30 35
Nashua, NH.......................... Existing 13 16 15
Norwalk, CT......................... Existing 8 20 25
Orlando, FL......................... Existing 16 20 30
Providence, RI...................... Existing 16 20 22
Quincy, MA.......................... Existing 63 70 80
Largo, FL........................... Existing 10 20 20
Worcester, MA....................... Existing 10 20 20
Jacksonville, FL.................... Existing 13 20 20
New York, NY........................ Existing 8 20 48
Springfield, MA..................... Existing 3 12 15
Undetermined........................ Q2 1999 0 0 15
Undetermined........................ Q2 1999 0 0 15
------- ------- -------
Totals.............................. 201 300 400
======= ======= =======
RESELLER AND INDEPENDENT AGENT SALES. The Company's reseller and
independent agent sales force markets the Company's telecommunications services
to various resellers, independent marketing representatives, associations and
affinity groups. The focus of the reseller and independent agent sales force is
to locate established, high-quality organizations with extensive distribution
channels in order to market the Company's telecommunications services to both a
broader geographic range of potential customers and a greater number of
potential customers than could be reached by the direct retail sales force.
The Company sells its services on a wholesale basis to resellers, which in
turn sell such services at retail to their customers. The Company generally
sells its services to independent marketing representatives, associations and
affinity groups on a retail basis. Use of independent marketing representatives
allows the Company to reduce its marketing and other overhead costs. As
compensation for their services, independent marketing representatives generally
receive a commission on their sales. The Company employs stringent selection
criteria and attempts to carefully monitor and control the activities of its
resellers and independent marketing representatives to ensure compliance with
laws, industry standards, and corporate policies. The Company believes that the
number of complaints it has received regarding the methods and practices of its
agents is negligible in comparison with that of many other telecommunications
companies.
The Company's reseller and independent agent sales force is split into
three regions: (i) a Northeastern region, headed by a regional sales director
with seven years of telecommunications sales experience with the Company; (ii) a
Southeastern region, headed by a regional sales director with three years of
telecommunications sales experience with the Company; and (iii) a West Coast
region, headed by a regional sales director with eight years of
telecommunications sales experience with the Company. The Company commenced
sales through resellers and independent marketing representatives in 1996, and
the Company currently has five salespeople dedicated to this market segment. In
September 1998, sales through the Company's reseller and independent agent sales
force accounted for 13% of the Company's revenue.
48
54
INTERNATIONAL WHOLESALE SALES. The Company's international wholesale sales
force markets the Company's international telecommunications services to both
international and domestic telecommunications providers. The international
wholesale sales force is focused on developing customer and vendor relationships
with the top tier IXCs as well as RBOCs and selected financially stable second
tier IXCs. In September 1998, international wholesale sales accounted for
approximately 27% of the Company's revenue.
The Company's international wholesale sales force is headed by the Vice
President and General Manager of International Services, who has over 16 years
of experience in international telecommunications sales, service and networks.
In addition, this sales group includes three specialized international wholesale
sales representatives, each of whom has over four years of telecommunications
sales experience with the Company. As of September 30, 1998, the Company had six
sales people in its international wholesale sales force.
SALES FORCE COMPENSATION
All sales persons, regardless of sales group, are compensated with both a
salary and a residual commission structure based on each customer's continued
use of the Company's services. The compensation of members of the Company's
sales force is therefore increasingly reliant over time on the retention of
existing customers. It is the Company's belief that this "lifetime residual"
motivates each sales person to remain actively involved with customers and
participate in the customer support process. The Company believes this approach
to commissions is unique in the industry and provides the Company with
competitive advantages including (i) enhanced relationships, which increase
cross-selling opportunities; (ii) reduced customer service and support costs;
and (iii) increased customer retention.
SIMPLICITY PRICING
The Company utilizes a flat-rate per-minute pricing structure for long
distance and certain other services, which the Company refers to as Simplicity
Pricing. The Company believes this simplified pricing structure assists in the
sales process and gives the Company a competitive advantage over larger long
distance competitors which historically have used complex pricing structures
featuring either distance-sensitive calling charges or myriad base rates and
discounting schemes. The Company strives to deliver this Simplicity Pricing on a
timely invoice in a format that is user-friendly.
MARKETING AND ADVERTISING
Historically, because the Company has been successful in relying upon its
sales force to obtain additional customers and increased name recognition, the
Company has refrained from undertaking significant advertising efforts. The
Company is actively involved in numerous charitable and community events, which
the Company believes increase recognition of the Company in particular
geographic regions. The Company has no immediate plans to allocate significant
resources to direct advertising efforts.
CUSTOMER BASE
RETAIL CUSTOMERS
As of September 30, 1998, the Company had over 39,000 retail customers,
which the Company internally segments by monthly revenue into (i) a National
Account segment (over $1,000 of usage per month), (ii) a Major Account segment
(between $250 and $1,000 of usage per month) and (iii) a Small
Business/Residential Customer Account segment (under $250 of usage per month).
This segmentation is designed to ensure that those customers generating higher
monthly revenues experience a higher level of proactive customer care.
49
55
INTERNATIONAL WHOLESALE CUSTOMERS
As of June 1, 1998, the Company provided wholesale international
telecommunications services to 13 national and international telecommunications
carriers. International wholesale telecommunications services include
international transport and termination services for domestic carriers and
domestic transport and termination services for international carriers. During
September 1998, wholesale telecommunications services accounted for 27% of the
Company's revenue.
The Company strives to establish close working relationships with its
wholesale international customers. Once the Company interconnects with a carrier
customer, the carrier may utilize the Company on an as-needed basis, depending
upon the pricing offered by the Company and its competitors, as well as
capacity. The Company has been tested and approved as an authorized carrier for,
and included in the routing tables of, all of its long distance and
international carrier customers.
During the years ended December 31, 1997, 1996 and 1995, the Company had
one retail customer that accounted for approximately 10% of the Company's
revenue. In the first nine months of 1998, the Company had one wholesale
customer that accounted for approximately 12% of the Company's revenue. The
Company expects that this customer will be the only customer accounting for more
than 10% of its revenue during the full year 1998.
CUSTOMER SUPPORT
The Company maintains an emphasis on customer care to differentiate itself
from its competitors, especially larger providers, and to increase customer
retention. The Company provides 24-hours-per-day, 365-days-per-year customer
support primarily through its customer service department in Quincy,
Massachusetts. At the Company's customer support center, customers' calls are
answered by experienced customer care representatives, many of whom are
cross-trained in the provisioning process. Support staff are trained to work
with the Company's sales force and be proactive in the customer support process.
In addition to calls made by the Company's sales department, members of the
customer support staff proactively seek to contact national customers monthly
and major customers quarterly to help ensure a high level of satisfaction with
the Company. The Company's customer support team is organized to help ensure
that the most knowledgeable personnel handle support requests from the largest
customers.
The customer support staff utilizes a sophisticated management information
system to access all customer information including contact information,
customer rates, trouble ticket systems, accounts receivable and billing history.
In addition, the Company utilizes a provisioning system that maintains a
complete history of a customer's provisioning and allows real-time access to
information concerning each transaction with the LEC or underlying carrier. The
Company believes that its customer support and provisioning systems enhance the
Company's customer retention rate.
The Company monitors and measures the quality and timeliness of customer
interaction through quality assurance procedures. Pick-up times for incoming
calls, lengths of calls and other support information is automatically monitored
by the Company's automated call distribution system ("ACD"). The Company's ACD
also prioritizes incoming support requests, assuring that the Company's largest
customers receive support in the most expedient manner.
The Company's customer support department consists of five discrete areas:
National Accounts Management, Major Accounts Management, Small Business and
Residential Accounts Management, Repair Desk, and Save and Win-Back Team. The
Company's Customer Service Department is managed by the Director of Customer
Service, who has six years of sales and customer service experience with the
Company. Additional members of the Customer Service Management team include (i)
the National Accounts Manager, who has five years of sales and customer service
experience with the Company; (ii) the Major Accounts Manager, who has four years
of sales and customer service experience with the Company; (iii) the Small
Business and
50
56
Residential Accounts Manager, who has two years of sales and customer service
experience with the Company; (iv) the Repair Desk team members, each of whom has
a minimum of two years of customer service experience with the Company; and (v)
the Save and Win-Back team members, each of whom has a minimum of four years of
sales and customer service experience with the Company.
Customer support agents are required to complete an intensive formal
in-house training program before interacting with customers and are required to
participate in a continuing mentor program. Customer support personnel are
expected to have a thorough knowledge of the Company's services and to emphasize
customer satisfaction. The compensation of support personnel is in part
dependent upon the retention rate of their respective accounts. The Company has
an established career path for its agents, who over time gain responsibility for
larger customers, as well as management responsibilities.
The Company's customer support department currently receives approximately
800 support calls per day. The Company estimates that the average incoming call
is answered by a support specialist in under 15 seconds, which the Company
believes compares favorably to many competitors. The Company also utilizes four
billing cycles per month, which helps ensure that customer service calls will be
staggered throughout each month. If the Company is successful in entering the
local service market, the Company believes that its level of customer service
will provide it with a competitive advantage over existing local service
providers. As of September 30, 1998, the Company employed 34 people in customer
support. The Company anticipates that it will continue to hire additional
customer support personnel as the size of its customer base increases. See "Risk
Factors -- Dependence on Billing, Customer Service and Information Systems".
NETWORK
The Company pursues a capital-efficient network deployment strategy that
involves owning switches while acquiring or leasing fiber optic transmission
facilities on an incremental basis to satisfy customer demand. The Company's
strategy has been to build a geographic concentration of revenue-producing
customers through the resale of telecommunications services before building,
acquiring or extending its own network to serve that concentration of customers.
As network economics justify the deployment of switching or transport capacity,
the Company expands its network and migrates customers to its network. The
Company believes that this strategy allows the Company to penetrate new markets
through its resale solution without incurring the risks associated with
speculative deployment of network elements and to focus its capital expenditures
in those geographic areas and markets where network expansion will result in
higher long-term operating margins.
CURRENT NETWORK
SWITCHES. Currently, the Company operates an advanced telecommunications
network that includes two Nortel switches. The switch located in Quincy,
Massachusetts is a DMS 250/300 digital switch that combines on a single platform
the DMS 250's interexchange switching capabilities and the DMS 300's
international gateway capabilities. The switch located in Orlando, Florida is a
Nortel DMS 250. The Company's switches are owned pursuant to capital lease
arrangements.
During September 1998, the Company carried approximately 27.0 million
minutes, or approximately 48% of its total minutes, on its own network. The
Company anticipates that this percentage will increase as it further expands its
facilities-based infrastructure. The Company believes that increasing the
traffic carried on its own network will increase long-term operating margins and
give the Company greater control over its network operations.
FIBER AND TRANSPORT. The Company recently entered into two 20-year
indefeasible right-of-use ("IRU") agreements with two separate carriers pursuant
to which it acquired 625 route miles of dark fiber (1,830 digital fiber miles).
When the fiber is fully deployed and activated, it will form a
51
57
redundant fiber ring connecting major markets throughout New England and the New
York metropolitan area, providing the Company with significant transmission
capacity. The first IRU agreement is for 293 fiber route miles containing four
dark Lucent TrueWave optical fibers. Markets connected by this segment include
New York City, White Plains, Stamford, New Haven, New London, Providence and
Boston. The second IRU agreement is for 332 fiber route miles containing two
dark Lucent TrueWave optical fibers. Markets connected by this segment include
Boston, Nashua, Springfield, Hartford, White Plains and New York City. The
Company will install and control all electronics and optronics, including wave
division multiplexing technologies.
Where the Company has not acquired fiber, it leases long-haul network
transport capacity from major facilities-based carriers and local access from
the ILECs in their respective territories. The Company also uses competitive
access provider ("CAP") or CLEC facilities where available and economically
justified. To ensure seamless off-net termination and origination, the Company
also utilizes interconnection agreements with major carriers. See "Risk
Factors -- Reliance on Leased Transport Facilities and IRUs".
INTERNATIONAL. The Company is interconnected with a number of U.S. and
foreign wholesale international carriers through the Quincy, Massachusetts DMS
250/300 switch. The purpose of connecting to a variety of carriers is to provide
state-of-the-art least-cost routing and network reliability. These
interconnected international carriers are also a source of wholesale
international traffic and revenue. To further support its international
interconnections the Company has entered into leases for international submarine
cable facilities in TAT-12/13 RIOJA in the Atlantic Ocean and TPC-5 in the
Pacific Ocean. In addition, in December 1997 the Company purchased indefeasible
rights of use capacity in the Americas I cable system. These arrangements
support existing and planned interconnections with telephone operating companies
in foreign countries.
OTHER FEATURES. The Company is also interconnected with two Signaling
Transfer Points in Waterbury, Connecticut and New Haven, Connecticut to provide
SS7 common-channel signaling throughout its network. The SS7 signaling system
reduces connect time delays, thereby enhancing overall network efficiencies.
Additionally, SS7 will permit the anticipated expansion of AIN capabilities
throughout the Company's network. The Company's uniform and advanced switching
platform will enable it to (i) deploy features and functions quickly throughout
its entire network, (ii) expand switch capacity in a cost-effective manner,
(iii) lower maintenance costs through reduced training and spare parts
requirements and (iv) achieve direct connectivity to cellular and personal
communication system applications in the future.
SECURITY AND RELIABILITY. The Company has a Network Operations Center in
Quincy, Massachusetts, which monitors the Company's entire network from a
central location, increasing the security, reliability and efficiency of the
Company's operations. Centralized electronic monitoring and control of the
Company's network allows the Company to avoid duplication of this function in
each region. This consolidated operations center also helps reduce the Company's
per-customer monitoring and customer service costs. In addition, the Company's
network employs an "authorized access" architecture. Unlike many
telecommunications companies, which allow universal access to their network, the
Company utilizes an automatic number identification ("ANI") security screening
architecture that ensures only the ANIs of those users who have subscribed to
the Company's services and have satisfied the Company's credit and provisioning
criteria are allowed access to the network. The Company believes that this
architecture provides the Company a competitive advantage through its ability to
better control bad debt and fraud in a manner that is invisible and nonintrusive
to the customer. Additionally, this architecture allows the Company to better
manage network capacity, as unauthorized and unplanned users cannot access the
network. See "Risk Factors -- Dependence Upon Network Infrastructure; Risk of
System Failure; Security Risks".
ANTICIPATED NETWORK EXPANSION
As part of its growth strategy, the Company plans to undertake a
significant network expansion through the deployment of additional switching and
transport infrastructure to support its goal of continuing migration of its
customers' traffic to its own network. Expansion of the Company's
52
58
facilities-based infrastructure with international gateway, long distance and
local switches will increase the proportion of communications traffic that is
originated or terminated on its network, which the Company believes will result
in higher long-term operating margins and greater control over its network
operations. The Company structures its network expansion decisions in a manner
designed to (i) reduce up-front capital expenditures required to enter new
markets, (ii) avoid the risk of "stranded" investment in under-utilized fiber
networks and (iii) enter markets and generate revenue and positive cash flow
more rapidly than if the Company first constructed its own facilities. The
Company intends to further expand its network in geographic areas where customer
concentrations and traffic patterns make expansion economically justifiable. See
"Risk Factors -- Substantial Future Capital Requirements; Need for Additional
Financing; Substantial Leverage".
The Company also plans to expand its business by offering a full range of
local services in the geographic regions where the Company already has an
established customer base. The Company intends to offer local services by (i)
entering into interconnection agreements with ILECs; (ii) deploying its
facilities-based infrastructure in conjunction with ILEC unbundled network
elements ("UNE"); (iii) in those areas where the Company has not yet deployed
local facilities infrastructure, or in those areas where the Company has not yet
achieved significant market penetration, reselling the ILECs' local services
pursuant to state commission-mandated wholesale discounts; and (iv) entering
into agreements with various ILECs and IXCs for termination and origination of
traffic for the Company's on-net local customers. The Company believes this
network deployment strategy, along with its ability to leverage its existing
customer base and demonstrated sales and provisioning expertise, will help to
produce rapid penetration into local markets. Additionally, the Company believes
that the bundling of local service with its long distance or data services will
enhance customer retention and further enhance operating margins.
Four phases of the Company's network expansion are anticipated to take
place by the end of 1999. These phases are as follows:
IXC PLATFORM. The Company intends to deploy and have operational the
following switching platforms by mid-1999: (i) in Los Angeles, a DMS 250/300
digital switch, which combines on a single platform the DMS 250's interexchange
switching capabilities and the DMS 300's international gateway capabilities;
(ii) in Chicago, a DMS 250 interexchange switch; (iii) in New York City, a
Lucent 5ESS equipped with interexchange capabilities; and (iv) in Atlanta, a
Lucent 5ESS switch, which combines the interexchange switching platform with a
local switching platform. Based upon current traffic patterns and volumes the
Company believes that the deployment of this interexchange switching capacity
will enable the Company to increase the on-net traffic generated by its current
customer base.
LOCAL NORTHEAST PLATFORM. The Company intends to deploy local switching
infrastructure in the Northeastern United States, which will allow the Company
to take advantage of its customer concentration in this region. It is the
Company's current intention to deploy a Lucent 5ESS switch in both Boston and
New York, along with numerous circuit and fast packet access nodes located in
central offices and targeted buildings throughout its Northeastern region.
LOCAL SOUTHEAST PLATFORM. The Company intends to deploy local switching
infrastructure in the Southeastern United States, which will allow the Company
to take advantage of its customer concentration in this region. While the
Company is still evaluating various network configurations, it is the Company's
current intention by mid-1999 to install a Lucent 5ESS switch in both Orlando
and Atlanta, along with numerous circuit and fast packet access nodes located in
central offices and targeted buildings throughout its Southeastern region.
SERVICE BUILDER. Concurrently with the build-out of its IXC and local
network infrastructure, it is the Company's intention to deploy Service Builder,
Nortel's next generation AIN platform as an extension of the SS7 technology
embedded in the Company's network protocol. Specific value-added features
currently supported by Service Builder include: (i) "500 number" technology;
(ii) "follow me" services; (iii) local number portability (mandated by the
Telecommunications Act);
53
59
(iv) mass customization of number translation services; and (v) deployment of
virtual private networks. The Company expects to begin offering some of these
services by the first quarter of 1999.
INTERNATIONAL PLATFORM
The Company's switch in Quincy, Massachusetts has international gateway
capabilities. To increase its opportunities in the Pacific Rim, the Company also
plans to deploy a Nortel international gateway switch in its Los Angeles
switching facility by year end 1998.
SPRINT AGREEMENT
In those geographic areas in which the Company has not deployed network
elements, it contracts for and resells long distance domestic and International
services from Sprint. See "Risk Factors -- Dependence Upon Suppliers and Other
Service Providers".
MANAGEMENT INFORMATION SYSTEMS, PROVISIONING, BILLING AND COLLECTIONS
OVERVIEW
The Company is committed to the continued development and successful
implementation of an integrated provisioning, billing, collection and customer
service system that provides accurate and timely information to both the Company
and its customers. The Company's billing system is designed to provide access to
a broad range of information on individual customers, including their call
volume, patterns of usage and billing history.
In connection with its anticipated growth, the Company has incurred and
expects to incur significant costs to upgrade its information technology
systems. The new system being developed by the Company is built on an open
scalable client/server Oracle platform and is expected to better integrate the
Company's operations, both geographically and among departments. There can be no
assurance that the Company will realize the intended benefits from this new
system or that the Company will not incur significant unanticipated costs in
deploying this system. See "Risk Factors -- Dependence on Billing, Customer
Service and Information Systems".
PROVISIONING
The Company believes that a significant ongoing challenge for ICPs will be
to continuously improve provisioning systems, which includes the complex process
of transitioning customers to their proprietary networks. Accordingly, the
Company will continue to identify and focus on implementing the best
provisioning practices in each of its markets to provide for rapid, seamless
transition of customers from the ILEC to the Company. To support the
provisioning of its services, the information platform being developed by the
Company is designed to deliver information and automated ordering and
provisioning capability directly to the end user as well as to the Company's
internal staff. The Company believes that these practices and its comprehensive
information technology platform, as developed, will provide the Company with a
long-term competitive advantage and allow it to more rapidly implement switched
local services in its markets and to shorten the time between the receipt of a
customer order and the generation of revenue.
The Company's Provisioning Department consists of four discrete areas:
General Provisioning, Dedicated Access Services, Toll-Free Services and Reseller
and Agent Provisioning and Support. The Director of Provisioning has over six
years of telecommunications provisioning experience with the Company. Additional
members of the Provisioning Department management team include (i) the Dedicated
Access Services Manager with over seven years of telecommunications provisioning
experience with the Company; (ii) the Toll-Free Services Manager with four years
of telecommunications provisioning experience with the Company; and (iii) two
Assistant Managers of Provisioning, each with over four years of
telecommunications provisioning experience with the Company.
54
60
BILLING
The Company maintains within its internal OSS all customer information,
operational data, accounts receivable information, rating rules and tables, and
tax tables necessary for billing its customers. The Company collects and
processes on a daily basis all usage information from its own network and from
the networks of third-party providers. The actual process of applying rating and
taxing information to the millions of individual message units generated each
month, and of generating invoice print files, is out-sourced to a third party
utilizing both a redundant high-speed IBM MVS mainframe and the proven PL/1
language. Printing of invoices is outsourced to a high-speed print shop, and the
mailing of all invoices is currently handled directly by the Company. To
optimize both cash flow and internal work flow metrics, the Company currently
utilizes four billing cycles per month. Additional billing cycles will be added
as dictated by customer growth. To ensure the quality of the billing process,
the Company utilizes strict quality control checks including boundary and
statistical variation testing, sample pricing matrices and direct sampling.
EMPLOYEES
The Company's departments have a proven structure including a "growth from
within" philosophy providing opportunities first, to the extent possible, to
existing employees. The Company believes that this philosophy has increased
employee retention and resulted in the Company's operations being managed by
individuals with significant telecommunications experience with the Company. In
addition, the Company believes that the long tenure, extensive experience and
proven teamwork of its Sales, Customer Service, Provisioning, Billing and
Collections management teams is a competitive advantage when compared to
emerging ICPs lacking the extensive cooperative management experience enjoyed by
the Company.
As of September 30, 1998, the Company employed 337 people, consisting of
201 in sales and marketing, 34 in customer service, 24 in provisioning, five in
production, three in billing, 13 in finance, 17 in networks, 10 in information
technology/MIS, 10 in collections and 20 in other departments. The Company has
also recently hired a Director of Human Resources to help manage the Company's
growing employee base. In connection with its growth strategy, the Company
currently anticipates hiring a significant number of additional personnel in
sales and other areas of the Company's operations by year end 1999. As a result
of the intense competition for qualified information technology personnel, the
Company also uses third-party information technology consultants. The Company's
employees are not unionized, and the Company believes its relations with its
employees are good. The Company's success will continue to depend in part on its
ability to attract and retain highly qualified employees. See "Risk
Factors -- Management of Rapid Growth" and "-- Dependence on Key Personnel".
PROPERTIES
The Company's corporate headquarters are located in a 39,500-square foot
facility in Quincy, Massachusetts. The Quincy facility also serves as a sales
office and includes the Company's customer service operations, certain network
facilities and its Network Operations Center. The Quincy facility is leased from
an affiliate of the Company. See "Certain Transactions". The Company currently
leases 12 additional facilities for current or planned sales offices. The
Company also leases real estate to house its telemarketing center in Largo,
Florida and interexchange switching facilities in Los Angeles, Chicago and
Orlando. The Company has also recently entered into a lease to house its first
local switch in the Northeastern region of the United States and is in the
process of obtaining other leases to house other local switches. The aggregate
amount paid by the Company under its leases in 1997 was approximately $733,000.
Although the Company's facilities are adequate at this time, the Company
believes that it will be required to lease additional facilities, including
additional sales offices and switching facilities, as a result of its
anticipated growth.
55
61
LEGAL MATTERS
From time to time the Company is party to routine litigation and
proceedings in the ordinary course of its business. The Company is not aware of
any current or pending litigation to which the Company is or may be a party that
the Company believes could have a material adverse effect on the Company's
results of operations or financial condition.
INDUSTRY OVERVIEW
HISTORY AND INDUSTRY DEVELOPMENT
Prior to 1984, AT&T dominated both the local exchange and long distance
marketplaces by owning the operating entities that provided both local exchange
and long distance services to most of the U.S. population. Although long
distance competition began to emerge in the late 1970s, the critical event
triggering the growth of long distance competition was the breakup of AT&T and
the separation of its local and long distance businesses as mandated by the
Modified Final Judgment relating to the breakup of AT&T (the "MFJ"). To foster
competition in the long distance market, the MFJ prohibited AT&T's divested
local exchange businesses, the RBOCs, from acting as single-source providers of
telecommunications services.
Although the MFJ established the preconditions for competition in the
market for long distance services in 1984, the market for local exchange
services has until recently been virtually closed to competition and has largely
been dominated by regulated monopolies. Efforts to open the local exchange
market began in the late 1980s on a state-by-state basis when CLECs began
offering dedicated private line transmission and access services. These types of
services together currently account for approximately 12% of total local
exchange revenue. CLECs were restricted, often by state laws, from providing
other, more frequently used services such as basic and switched services, which
today account for approximately 88% of local exchange revenue.
The Telecommunications Act, which was enacted in February 1996, is
considered to be the most comprehensive reform of the nation's
telecommunications laws and affects the development of competition for local
telecommunications services. Specifically, certain provisions of the
Telecommunications Act provide for (i) the removal of legal barriers to entry to
the local telecommunications services market; (ii) the interconnection of ILEC
networks with competitors' networks; (iii) the establishment of procedures and
requirements to be followed by the RBOCs, including the requirement that RBOCs
offer local services for resale as a precondition to entering into the long
distance and telecommunications equipment manufacturing markets; and (iv) the
relaxation of the regulation of certain telecommunications services provided by
LECs and others. The Company believes the Telecommunications Act will promote
significant growth in the local telecommunications market as new market entrants
provide expanded service offerings.
The Telecommunications Act further increases the opportunities available to
CLECs by requiring the RBOCs and other ILECs to offer various network elements
such as switching, transport and loops (i.e., the facilities connecting a
customer's premises to a LEC central office) on an unbundled and
non-discriminatory basis. RBOCs also are required to offer their retail services
at wholesale rates for resale by other companies. By offering such services,
RBOCs also meet certain of the requirements contained in the Telecommunications
Act in order to gain FCC approval to provide in-region long distance services.
Although certain provisions of the Telecommunications Act restricting the RBOCs'
ability to provide in-region long distance services have been held
unconstitutional by a Federal district court, the Company believes that
significant parts of such decision may be reversed and vacated on appeal, but no
assurance can be made as to the outcome.
The continuing deregulation of the telecommunications industry and
technological change have resulted in an increasingly information-intensive
business environment. Regulatory, technological, marketing and competitive
trends have expanded substantially the Company's opportunities in the converging
voice and data communications services markets. For example, technological
advances,
56
62
including rapid growth of the Internet, the increased use of packet switching
technology for voice communications and the growth of multimedia applications,
are expected to result in substantial growth in the high-speed data services
market.
This new market opportunity will permit competitive providers who can
manage the operational and marketing implementation to offer a full range of
telecommunications services, including local and long distance calling,
toll-free calling, custom calling features, data services, Internet access and
cellular services. The Company believes that customers will prefer a single
source for all of their voice and data telecommunications requirements,
including products, billing and service. Telecommunications companies with an
established base of long distance customers will have the opportunity to sell
additional services to such customers. The Company believes that a one-stop
provider of integrated communications services will have the opportunity to
penetrate its existing markets, expand its customer base, capture a larger
portion of its customers' total expenditures on communication services and
reduce customer turnover. Furthermore, companies that develop their own networks
will have the opportunity to migrate customers from off-net to on-net, thereby
increasing long-term operating margins and giving such companies greater control
over their network operations. See "Risk Factors -- Competition", "-- The
Telecommunications Act and Other Regulation" and "-- Impact of Technological
Change".
The Company also believes that small and medium-sized businesses have
historically been underserved with respect to customer service and support.
Because, the Company believes, RBOCs and the largest national carriers primarily
concentrate their sales and marketing efforts on residential and large business
customers, there is a significant market opportunity with respect to small and
medium-sized businesses. Geographically, the Company believes that the
Northeastern and Southeastern regions of the United States are attractive
markets due to a number of factors, including (i) the population density in the
Northeast; (ii) a large number of rapidly growing metropolitan clusters in the
Southeast, such as Atlanta, Miami/Fort Lauderdale and Orlando; and (iii) the
relatively small number of significant competitors to the ILECs.
TELECOMMUNICATIONS SERVICES MARKET
Overview of U.S. Market. The U.S. market for telecommunications services
can be divided into three basic sectors: long distance services, local exchange
services and Internet access services. In its July 1998 report "Trends in
Telephone Service", the Industry Analysis Division of the Federal Communications
Commission's Common Carrier Bureau estimated that, in the United States, long
distance services generated revenue of approximately $99.7 billion in 1996 and
local exchange services accounted for revenue of approximately $86.9 billion.
Revenue for both local exchange and long distance services include amounts
charged by long distance carriers and subsequently paid to ILECs (or, where
applicable, CLECs) for long distance access.
Long Distance Services. A long distance telephone call can be envisioned
as consisting of three segments. Starting with the originating customer, the
call travels along a local exchange network to a long distance carrier's point
of presence ("POP"). At the POP, the call is combined with other calls and sent
along a long distance network to a POP on the long distance carrier's network
near where the call will terminate. The call is then sent from this POP along a
local network to the terminating customer. Long distance carriers provide only
the connection between the two local networks, and, unless the long distance
carrier is a local service provider, pay access charges to LECs for originating
and terminating calls.
57
63
The following diagram is a simplified illustration of a typical long
distance network call carried by the Company:
[Diagram]
Local Exchange Services. A local call is one that does not require the
services of a long distance carrier. In general, the local exchange carrier
connects end user customers within a LATA and also provides the local portion of
most long distance calls.
The following diagram is a simplified illustration of a typical local
network call:
[Diagram]
Internet Service. Internet services are generally provided in at least two
distinct segments. A local network connection is required from the ISP customer
to the ISP's local facilities. For large, communication-intensive users and for
content providers, the connections are typically unswitched, dedicated
connections provided by ILECs, CLECs or ICPs, either as independent service
providers or, in some cases, by a company that is both a CLEC and an ISP. For
residential and small and medium-sized business users, these connections are
generally public switched telephone network ("PSTN") connections obtained on a
dial-up access basis as a local exchange telephone call. Once a local connection
is made to the ISP's local facilities, information can be transmitted and
obtained over a packet-switched IP data network, which may consist of segments
provided by many interconnected networks operated by a number of ISPs. The
collection of interconnected networks makes up the Internet. A key feature of
Internet architecture and packet-switching is that a single dedicated channel
between communication points is never established, which distinguishes
Internet-based services from the PSTN.
COMPETITION
OVERVIEW
The Company operates in a highly competitive industry and believes that it
does not have significant market share in any market in which it operates. The
Company expects that competition
58
64
will continue to intensify in the future due to regulatory changes, including
the continued implementation of the Telecommunications Act, and the increase in
the size, resources and number of market participants. In each of its markets,
the Company will face competition for local service from larger, better
capitalized ILECs and CLECs. Additionally, the long distance market is already
significantly more competitive than the local exchange market because the ILECs,
prior to enactment of the Telecommunications Act, generally had a monopoly
position within the local exchange market. While new business opportunities will
be made available to the Company through the Telecommunications Act and other
Federal and state regulatory initiatives, regulators are likely to provide the
ILECs with an increased degree of flexibility with regard to pricing of their
services as competition increases.
Competition for the Company's products and services is based on price,
quality, reputation, name recognition, network reliability, service features,
billing services, perceived quality and responsiveness to customers' needs.
While the Company believes that it currently has certain advantages relating to
price, quality, customer service, and responsiveness to customer needs, there is
no assurance that the Company will be able to maintain these advantages or
obtain additional advantages. A continuing trend toward business combinations
and alliances in the telecommunications industry may create significant new
competitors to the Company. Many of the Company's existing and potential
competitors have financial, technical and other resources significantly greater
than those of the Company. In addition, in December 1997 the FCC issued rules to
implement the provisions of the World Trade Organization Agreement on Basic
Telecommunications, which was drafted to liberalize restrictions on foreign
ownership of domestic telecommunications companies and to allow foreign
telecommunications companies to enter domestic markets. The new FCC rules went
into effect in February 1998 and are expected to make it substantially easier
for many non-U.S. telecommunications companies to enter the U.S. market, thus
further increasing the number of competitors. The new rules will also give
non-U.S. individuals and corporations greater ability to invest in U.S.
telecommunications companies, thus increasing the financial and technical
resources potentially available to the Company and its existing and potential
competitors. See "Risk Factors -- Competition", "Risk Factors -- The
Telecommunications Act and Other Regulation" and "Government Regulation".
LONG DISTANCE MARKET
The long distance telecommunications industry is highly competitive and
affected by the introduction of new services by, and the market activities of,
major industry participants. The Company competes against various national and
regional long distance carriers, including both facilities-based providers and
switchless resellers offering essentially the same services as the Company. In
addition, significant competition is expected to be provided by ILECs including,
when authorized, RBOCs. The Company's success will depend upon its ability to
provide high-quality services at prices generally competitive with, or lower
than, those charged by its competitors. In addition, the long distance industry
is characterized by a high level of customer attrition or "churn". Such
attrition is attributable to a variety of factors, including initiatives of
competitors as they engage in advertising campaigns, marketing programs and cash
payments and other incentives. End users are often not obligated to purchase any
minimum usage amount and can discontinue service without penalty at any time.
While the Company believes its customer turnover rate is lower than that of many
of its competitors, the Company's revenue has been, and is expected to continue
to be, affected by churn.
AT&T, MCI, Sprint and other carriers have implemented new price plans aimed
at residential customers with significantly simplified rate structures, which
may have the impact of lowering overall long distance prices. There can also be
no assurance that long distance carriers will not make similar offerings
available to the small to medium-sized businesses that the Company primarily
serves. While the Company believes small and medium-sized business customers are
not aggressively targeted by large long distance providers such as AT&T, MCI and
Sprint, there can be no assurance the Company's customers and potential
customers will not be targeted by these or other providers in the future.
Additional pricing pressure may come from IP transport, which is a
59
65
developing use of packet-switched technology that can transmit voice
communications at a cost that may be below that of traditional circuit-switched
long distance service. While IP transport is not yet available in all areas,
requires the dialing of additional digits, and generally produces sound quality
inferior to traditional long distance service, it could eventually be perceived
as a substitute for traditional long distance service and put pricing pressure
on long distance rates. Any reduction in long distance prices may have a
material adverse effect on the Company's results of operations.
One of the Company's principal competitors, Sprint, is also a major
supplier of services to the Company. The Company both links its switching
equipment with transmission facilities and services purchased or leased from
Sprint, and resells services obtained from Sprint. See "Business --
Network -- Sprint Agreement". There can be no assurance that Sprint will
continue to offer services to the Company at competitive rates or on attractive
terms, if at all, and any failure to do so could have a material adverse effect
on the Company. See "Risk Factors -- Dependence Upon Suppliers and Other Service
Providers".
LOCAL EXCHANGE MARKET
Under the Telecommunications Act and related Federal and state regulatory
initiatives, barriers to local exchange competition are being removed. In local
telecommunication markets, the Company's primary competitor will be the ILEC
serving each geographic area. ILECs are established providers of dedicated and
local telephone services to all or virtually all telephone subscribers within
their respective service areas. ILECs also have long-standing relationships with
regulatory authorities at the federal and state levels. While recent FCC
administrative decisions and initiatives provide increased business
opportunities to voice, data and Internet-service providers, they also provide
the ILECs with increased pricing flexibility for their private line, special
access and switched access services. In addition, with respect to competitive
access services, the FCC recently proposed a rule that would provide for
increased ILEC pricing flexibility and deregulation for such access services
either automatically or after certain competitive levels are reached. If the
ILECs are allowed additional flexibility by regulators to offer discounts to
large customers through contract tariffs, decide to engage in aggressive volume
and term discount pricing practices for their customers, or seek to charge
competitors excessive fees for interconnection to their networks, the revenue of
competitors to the ILECs could be materially adversely affected. If future
regulatory decisions afford the ILECs increased access services, pricing
flexibility or other regulatory relief, such decisions could also have a
material adverse effect on competitors to the ILECs.
The Company also will face competition or prospective competition in local
markets from other carriers, many of which have significantly greater financial
resources than the Company. For example, AT&T, MCI and Sprint have each begun to
offer local telecommunications services in major U.S. markets using their own
facilities or by resale of the ILECs' or other providers' services. In addition
to these long distance service providers, entities that currently offer or are
potentially capable of offering local switched services include companies that
have previously operated as competitive access providers, cable television
companies, electric utilities, microwave carriers, wireless telephone system
operators and large customers who build private networks. These entities, upon
entering into appropriate interconnection agreements or resale agreements with
ILECs, including RBOCs, could offer single-source local and long distance
services, similar to those offered or proposed to be offered by the Company.
In addition, a continuing trend towards business combinations and alliances
in the telecommunications industry may create significant new competitors to the
Company. The proposed acquisition of GTE Corp. by Bell Atlantic Corp., the
proposed merger of SBC and Ameritech, the merger of WorldCom and MCI, AT&T's
proposed acquisition of Telecommunications Inc. and its acquisition of Teleport
Communications Group, Inc., Teleglobe Inc.'s proposed acquisition of Excel
Communications, and SBC's proposed acquisition of SNET are examples of some of
the alliances that are being formed. Many of these combined entities will have
resources far greater than those of the Company. These combined entities may
provide a bundled package of telecommunications products, including local and
long distance telephony, that is in direct competition with the products offered
or proposed
60
66
to be offered by the Company, and may be capable of offering these products
sooner and at more competitive rates than the Company.
WIRELESS MARKET
The Company will also face competition from fixed wireless services,
including MMDS, LMDS, 24 GHz and 38 GHz wireless communications systems, FCC
Part 15 unlicensed wireless radio devices, and other services that use existing
point-to-point wireless channels on other frequencies. In addition, the FCC has
allocated a number of spectrum blocks for use by wireless devices that do not
require site or network licensing. A number of vendors have developed such
devices that may provide competition to the Company, in particular for certain
low data-rate transmission services.
With respect to mobile wireless telephone system operators, the FCC has
authorized cellular, PCS, and other CMRS providers to offer wireless services to
fixed locations, rather than just to mobile customers, in whatever capacity such
CMRS providers choose. Previously, cellular providers could provide service to
fixed locations only on an ancillary or incidental basis. The authority to
provide fixed as well as mobile services will enable CMRS providers to offer
wireless local loop service and other services to fixed locations (e.g., office
and apartment buildings) in direct competition with the Company and existing
providers of traditional wireless telephone service.
OTHER
Section 271 of the Telecommunications Act prohibits an RBOC from providing
long distance service that originates (or in certain cases terminates) in one of
its in-region states, with several limited exceptions, until the RBOC has
satisfied certain statutory conditions in that state and has received the
approval of the FCC. The FCC has denied the following applications for such
approval: SBC's Texas application in June 1998; SBC's Oklahoma application in
June 1997; Ameritech's Michigan application in August 1997; and BellSouth
Corporation's applications for South Carolina in December 1997 and Louisiana in
February 1998 and October 1998. The Company anticipates that a number of RBOCs
will file additional applications for in-region long distance authority in 1998.
Bell Atlantic recently received conditional approval from the New York Public
Service Commission of its Section 271 application for New York State. Thus, it
is expected that Bell Atlantic will file its Section 271 application with the
FCC in the near future. The FCC has 90 days from the date an application for
in-region long distance authority is filed to decide whether to grant or deny
the application.
Once the RBOCs are allowed to offer widespread in-region long distance
services, both they and the largest IXCs will be in a position to offer
single-source local and long distance service. On December 31, 1997, a United
States District Court judge in Texas held unconstitutional certain sections of
the Telecommunications Act, including Section 271. Section 271 includes a
"competitive checklist" that RBOCs must satisfy prior to obtaining authority to
provide in-region, interLATA long-distance service. This decision would permit
the three RBOCs involved in the suit immediately to begin offering widespread
in-region long distance services. The decision, however, was stayed on February
11, 1998 by the District Court pending the outcome of an appeal on the merits to
the U.S. Court of Appeals for the Fifth Circuit. On September 4, 1998, the Fifth
Circuit reversed the District Court's ruling. Among other things, the Fifth
Circuit found sec.sec.271-275 of the Telecommunications Act to be non-punitive
in character and, therefore, not a bill of attainder as that term has been
defined by the Superior Court.
In addition, new FCC rules went into effect in February 1998 that will make
it substantially easier for many non-U.S. telecommunications companies to enter
the U.S. market, thus potentially further increasing the number of competitors.
The market for data communications and Internet access services is also
extremely competitive. There are no substantial barriers to entry, and the
Company expects that competition will intensify in the future. The Company's
success selling these services will depend heavily upon its ability to provide
high quality Internet connections at competitive prices. See "Risk Factors --
Competition".
61
67
GOVERNMENT REGULATION
The following summary of regulatory developments and legislation does not
purport to describe all present and proposed federal, state and local
regulations and legislation affecting the telecommunications industry. Other
existing federal, state and local legislation and regulations are currently the
subject of judicial proceedings, legislative hearings, and administrative
proposals that could change, in varying degrees, the manner in which the
telecommunications industry operates. Neither the outcome of these proceedings,
nor their impact upon the telecommunications industry or the Company, can be
predicted at this time. This section also summarizes regulatory and tariff
issues pertaining to the operation of the Company.
OVERVIEW
The Company's services are subject to regulation by federal, state and
local government agencies. The FCC exercises jurisdiction over all facilities
and services of telecommunications common carriers to the extent those
facilities are used to provide, originate or terminate domestic (interstate) or
international communications. State regulatory commissions retain jurisdiction
over carriers' facilities and services to the extent they are used to originate
or terminate intrastate communications. Municipalities and other local
government agencies may require carriers to obtain licenses or franchises
regulating use of public rights-of-way necessary to install and operate their
networks. The networks are also subject to numerous local regulations such as
building codes, franchises, and rights of way licensing requirements. Many of
the regulations issued by these regulatory bodies may change, the results of
which the Company is unable to predict. See "Risk Factors -- The
Telecommunications Act and Other Regulation".
THE FEDERAL TELECOMMUNICATIONS ACT OF 1996
STATUTORY REQUIREMENTS. On February 1, 1996, the U.S. Congress enacted
comprehensive telecommunications legislation, which the President signed into
law on February 8, 1996. The Company believes that this legislation is likely to
enhance competition in the local telecommunications marketplace because it (i)
gives the FCC authority to preempt state and local entry barriers, (ii) requires
ILECs to provide interconnection to their facilities, (iii) facilitates
end-users' choice to switch service providers from ILECs to CLECs and (iv)
proscribes the imposition of discriminatory or anticompetitive requirements by
state or local governments for use of public rights of way.
The Telecommunications Act requires all LECs (including ILECs and CLECs)
(i) not to prohibit or unduly restrict resale of their services; (ii) to provide
local number portability; (iii) to provide dialing parity and nondiscriminatory
access to telephone numbers, operator services, directory assistance and
directory listings; (iv) to afford access to poles, ducts, conduits and
rights-of-way; and (v) to establish reciprocal compensation arrangements for the
transport and termination of local telecommunications traffic. It also requires
ILECs to negotiate local interconnection agreements in good faith and to provide
interconnection (a) for the transmission and routing of telephone exchange
service and exchange access, (b) at any technically feasible point within the
ILEC's network, (c) that is at least equal in quality to that provided by the
ILEC to itself, its affiliates or any other party to which the ILEC provides
interconnection, and (d) at rates, terms and conditions that are just,
reasonable and nondiscriminatory. ILECs also are required under the
Telecommunications Act to provide nondiscriminatory access to network elements
on an unbundled basis at any technically feasible point, to offer their local
retail telephone services for resale at wholesale rates, and to facilitate
collocation of equipment necessary for competitors to interconnect with or
access unbundled network elements ("UNEs").
In addition, the Telecommunications Act requires RBOCs to comply with
certain safeguards and offer interconnection that satisfies a prescribed
14-point competitive checklist before the RBOCs are permitted to provide
in-region interLATA (i.e., interexchange long distance) services. These
safeguards are designed to ensure that the RBOCs' competitors have access to
local exchange and
62
68
exchange access services on nondiscriminatory terms and that subscribers of
regulated non-competitive RBOC services do not subsidize their provision of
competitive services. The safeguards also are intended to promote competition by
preventing RBOCs from using their market power in local exchange services to
obtain an anti-competitive advantage in the provision of other services.
Three RBOCs, Ameritech Corp., SBC Communications Inc. (formerly
Southwestern Bell Corp.) and BellSouth Corp., have filed applications with the
FCC for authority to provide in-region interLATA service in selected states. The
FCC has denied all such RBOC applications for in-region long distance authority
filed to date. The denials of certain of these RBOC applications by the FCC are
the subjects of judicial appeals and petitions for rehearing at the FCC. Other
RBOCs have begun the process of applying to provide in-region interLATA service
by filing with state commissions notice of their intent to file at the FCC.
In addition, several RBOCs have challenged the constitutionality of certain
provisions of the Telecommunications Act that bar the RBOCs from providing
in-region interexchange and other services by filing a lawsuit in the U.S.
District Court for the Northern District of Texas (captioned SBC Communications,
Inc. v. FCC, Civil Action No. 7:97-CV-163-X (Kendall, J.)). Judge Kendall issued
an order in that case that invalidated Sections 271-273 of the
Telecommunications Act as they pertain to SBC, US West and Bell Atlantic, after
finding that these provisions violated the constitutional prohibition against
"bills of attainder". Judge Kendall's decision was appealed to the U.S. Court of
Appeals for the Fifth Circuit; on September 4, 1998, the Fifth Circuit reversed
the District Court's ruling. Three RBOCs sought review by the U.S. Supreme
Court; their petitions for ceriorari were denied on January 19, 1999. The RBOCs,
therefore, must continue to comply with the provisions of the Telecommunications
Act in order to obtain authority to provide in-region interLATA long distance
services.
The Telecommunications Act also granted important regulatory relief to
industry segments that compete with CLECs. ILECs were given substantial new
pricing flexibility. RBOCs have the ability to provide out-of-region
long-distance services and, if they obtain authorization and under prescribed
circumstances, may provide additional in-region long-distance services. RBOCs
also were granted new rights to provide certain cable TV services. IXCs were
permitted to construct their own local facilities and/or resell local services.
State laws no longer may require cable television service providers ("CATVs") to
obtain a franchise before offering telecommunications services nor permit CATVs'
franchise fees to be based on their telecommunications revenue. In addition,
under the Telecommunications Act all utility holding companies are permitted to
diversify into telecommunications services through separate subsidiaries. See
"Risk Factors -- Competition".
FCC RULES IMPLEMENTING THE LOCAL COMPETITION PROVISIONS OF THE
TELECOMMUNICATIONS ACT. On August 8, 1996, the FCC released a First Report and
Order, a Second Report and Order and a Memorandum Opinion and Order in its CC
Docket 96-98 (combined, the "Interconnection Orders") that established a
framework of minimum, national rules enabling state Public Service Commissions
("PSCs") and the FCC to begin implementing many of the local competition
provisions of the Telecommunications Act. In its Interconnection Orders, the FCC
prescribed certain minimum points of interconnection necessary to permit
competing carriers to choose the most efficient points at which to interconnect
with the ILECs' networks. The FCC also adopted a minimum list of unbundled
network elements that ILECs must make available to competitors upon request and
a methodology for states to use in establishing rates for interconnection and
the purchase of unbundled network elements. The FCC also adopted a methodology
for states to use when applying the Telecommunications Act's "avoided cost
standard" for setting wholesale prices with respect to retail services.
The following summarizes the key issues addressed in the Interconnection
Orders:
- INTERCONNECTION. ILECs are required to provide interconnection for
telephone exchange or exchange access service, or both, to any requesting
telecommunications carrier at any technically feasible point. The
interconnection must be at least equal in quality to that
63
69
\provided by the ILEC to itself or its affiliates and must be provided on rates,
terms and conditions that are just, reasonable and nondiscriminatory.
- ACCESS TO UNBUNDLED ELEMENTS. ILECs are required to provide requesting
telecommunications carriers with nondiscriminatory access to network
elements on an unbundled basis at any technically feasible point on
rates, terms, and conditions that are just, reasonable and
nondiscriminatory. At a minimum, ILECs must unbundle and provide access
to network interface devices, local loops, local and tandem switches
(including all software features provided by such switches), interoffice
transmission facilities, signaling and call-related database facilities,
operations support systems, and information and operator and directory
assistance facilities. Further, ILECs may not impose restrictions,
limitations or requirements upon the use of any unbundled network
elements by other carriers.
- METHODS OF OBTAINING INTERCONNECTION AND ACCESS TO UNBUNDLED
ELEMENTS. ILECs are required to provide physical collocation of
equipment necessary for interconnection or access to unbundled network
elements at the ILEC's premises, except that the ILEC may provide virtual
collocation if it demonstrates to the PSC that physical collocation is
not practical for technical reasons or because of space limitations.
- TRANSPORT AND TERMINATION CHARGES. The FCC rules require that LEC
charges for transport and termination of local traffic delivered to them
by competing LECs must be cost-based and should be based on the LECs'
Total Element Long-Run Incremental Cost ("TELRIC") of providing that
service.
- PRICING METHODOLOGIES. New entrants were required to pay for
interconnection and unbundled elements at rates based on the ILEC's
TELRIC of providing a particular network element plus a reasonable share
of forward-looking joint and common costs, and may include a reasonable
profit.
- RESALE. ILECs were required to offer for resale any telecommunications
service that they provide at retail to subscribers who are not
telecommunications carriers. PSCs were required to identify which
marketing, billing, collection and other costs will be avoided or that
are avoidable by ILECs when they provide services on a wholesale basis
and to calculate the portion of the retail rates for those services that
is attributable to the avoided and avoidable costs.
- ACCESS TO RIGHTS-OF-WAY. The FCC established procedures and guidelines
designed to facilitate the negotiation and mutual provision of
nondiscriminatory access by telecommunications carriers and utilities to
their poles, ducts, conduits, and rights-of-way.
- UNIVERSAL SERVICE REFORM. All telecommunications carriers, including the
Company, are required to contribute funding for universal service
support, on an equitable and nondiscriminatory basis, in an amount
sufficient to preserve and advance universal service pursuant to a
specific or predictable universal service funding mechanism. On May 8,
1997, the FCC released an order implementing these requirements by
reforming its existing access charge and universal service rules. See
"-- Universal Service Reform" below.
Most provisions of the Interconnection Orders were appealed. Numerous
appeals were consolidated for consideration by the Eighth Circuit Court of
Appeals (captioned Iowa Utilities Board v. FCC). On July 18, 1997, the Court of
Appeals vacated portions of the FCC's local interconnection rules. On January
25, 1999, the U.S. Supreme Court reversed the Eighth Circuit decision, upholding
the FCC's authority to establish national pricing rules for interconnection,
unbundled network elements and resold services. The Supreme Court overturned the
FCC's rules regarding what network elements must be unbundled by the RBOC's, and
remanded to the FCC the question of what network elements are "necessary" to
competing carriers. In addition, the Supreme Court created some uncertainty
regarding the legal status of complaints filed at the FCC to enforce
interconnection agreements by finding that the issue was not ripe for judicial
consideration. Further
64
70
proceedings on remand could affect the Company's ability to obtain
interconnection agreements on favorable terms. We cannot assure you that the
Company will succeed in obtaining interconnection agreements on terms that would
permit the Company to offer local services at profitable and competitive rates.
Any successful effort by the RBOCs or other local exchange carriers to deny
or limit access to their network elements or wholesale services would have a
material adverse effect on the Company's business, results of operations, and
financial condition.
SECTION 706 FORBEARANCE. Section 706 of the Telecommunications Act gives
the FCC the right to forebear from regulating a market if the FCC concludes that
such forbearance is necessary to encourage the rapid deployment of advanced
telecommunications capability. Section 706 has not been used to date, but in
January 1998 Bell Atlantic filed a petition under Section 706 seeking to have
the FCC deregulate entirely the provision of packet-switched telecommunications
services. Similar petitions were later filed by the Alliance for Public
Technology and US West Inc. (currently Media One Group Inc.), and other ILECs
are expected to file similar petitions in the near future.
On August 7, 1998, the FCC released an Order denying requests by the
Regional Bell Operating Companies (RBOCs) that it use Section 706 of the
Telecommunications Act to forbear from regulating advanced telecommunications
services. Instead, the FCC determined that advanced services are
telecommunications services and that ILECs providing advanced services are still
subject to the unbundling and resale obligations of Section 251(c) and the
in-region interLATA restrictions of Section 271.
On the same day, the FCC released a Notice of Proposed Rulemaking ("NPRM")
proposing that ILECs be permitted to offer advanced services through separate
affiliates. Subject to certain restrictions on transfers from the ILEC to the
affiliate, structural separation rules and nondiscrimination safeguards, these
separate affiliates would not be subject to the obligations imposed on ILECs
under Section 251(c), but would remain subject to the in-region interLATA
restrictions imposed on RBOCs and RBOC affiliates by Section 271. In the Order,
the FCC did not specifically authorize ILECs to provide advanced services
through a separate affiliate immediately. ILECs may, of course, immediately
provide advanced services, but until the separate affiliate is properly
established pursuant to rules to be promulgated following comment on the NPRM,
such provision of advanced services will be subject to Section 251. The outcome
of this proceeding could have a material adverse effect on the Company.
In order to assist competing carriers to gain access to ILEC facilities
necessary to provide advanced services, the FCC also proposes to strengthen
collocation and loop unbundling requirements. Finally, the FCC issued a Notice
of Inquiry (NOI) to explore the availability of advanced, high speed
telecommunications services.
OTHER FEDERAL REGULATION. In general, the FCC has a policy of encouraging
the entry of new competitors in the telecommunications industry and preventing
anti-competitive practices. Therefore, the FCC has established different levels
of regulation for dominant carriers and nondominant carriers. For purposes of
domestic common carrier telecommunications regulation, large ILECs such as GTE
and the RBOCs are currently considered dominant carriers, while CLECs are
considered nondominant carriers.
- TARIFFS. As a nondominant carrier, the Company may install and operate
facilities for the transmission of domestic interstate communications
without prior FCC authorization. Services of nondominant carriers have
been subject to relatively limited regulation by the FCC, primarily
consisting of the filing of tariffs and periodic reports. However,
nondominant carriers like the Company must offer interstate services on a
nondiscriminatory basis, at just and reasonable rates, and remain subject
to FCC complaint procedures. With the exception of
65
71
informational tariffs for operator-assisted services and tariffs for
interexchange casual calling services, the FCC has ruled that IXCs must
cancel their tariffs for domestic, interstate interexchange services.
Tariffs remain required for international services. The effectiveness of
those orders currently is subject to a stay issued by the U.S. Court of
Appeals for the District of Columbia Circuit. On June 19, 1997, the FCC
issued an order granting petitions filed by Hyperion Telecommunications
Inc. and Time Warner Inc. to provide CLECs the option to cease filing
tariffs for interstate interexchange access services and has proposed to
make the withdrawal of CLEC access service tariffs mandatory. Pursuant to
these FCC requirements, the Company has filed and maintains tariffs for
its interstate services with the FCC. All of the interstate access and
retail "basic" services (as defined by the FCC) provided by the Company
are described therein. "Enhanced" services (as defined by the FCC) need
not be tariffed. The Company believes that its proposed enhanced voice
and Internet services are "enhanced" services that need not be tariffed.
However, the FCC is reexamining the "enhanced" definition as it relates
to IP transport and the Company cannot predict whether the FCC will
change the classification of such services.
- INTERNATIONAL SERVICES. Nondominant carriers such as the Company also
are required to obtain FCC authorization pursuant to Section 214 of the
Communications Act and file tariffs before providing international
communications services. The Company has obtained authority from the FCC
to provide voice and data communications services between the United
States and all foreign authorized points.
- ILEC PRICE CAP REGULATION REFORM. In 1991, the FCC replaced traditional
rate of return regulation for large ILECs with price cap regulation.
Under price caps, ILECs can raise prices for certain services by only a
small percentage each year. In addition, there are constraints on the
pricing of ILEC services that are competitive with those of CLECs. On
September 14, 1995, the FCC proposed a three-stage plan that would
substantially reduce ILEC price cap regulation as local markets become
increasingly competitive and ultimately would result in granting ILECs
nondominant status. Adoption of the FCC's proposal to reduce
significantly its regulation of ILEC pricing would significantly enhance
the ability of ILECs to compete against the Company and could have a
material adverse effect on the Company. The FCC released an order on
December 24, 1996 that adopted certain of these proposals, including the
elimination of the lower service band index limits on price reductions
within the access service category. The FCC's December 1996 order also
eased the requirements necessary for the introduction of new services by
ILECs. On May 7, 1997, the FCC took further action in its CC Docket No.
94-1 updating and reforming its price cap plan for the ILECs. Among other
things, the changes require price cap LECs to reduce their price cap
indices by 6.5 percent annually, less an adjustment for inflation. The
FCC also eliminated rules that require ILECs earning more than certain
specified rates of return to "share" portions of the excess with their
access customers during the next year in the form of lower access rates.
These actions could have a significant impact on the interstate access
prices charged by the ILECs with whom the Company expects to compete.
- ACCESS CHARGES. Over the past few years, the FCC has granted ILECs
significant flexibility in pricing their interstate special and switched
access services. Under this pricing scheme, ILECs may establish pricing
zones based on access traffic density and charge different prices for
each zone. The Company anticipates that this pricing flexibility will
result in ILECs lowering their prices in high traffic density areas, the
probable area of competition with the Company. The Company also
anticipates that the FCC will grant ILECs increasing pricing flexibility
as the number of interconnections and competitors increases. On May 7,
1997, the FCC took action in its CC Docket No. 96-262 to reform the
current interstate access charge system. The FCC adopted an order that
makes various reforms to the existing rate structure for interstate
access that are designed to move access charges, over time, to more
66
72
economically efficient rate levels and structures. The following is a
nonexclusive list of actions announced by the FCC:
- SUBSCRIBER LINE CHARGE ("SLC"). The maximum permitted amount that an
ILEC may charge for SLCs on certain lines was increased. Specifically,
the ceiling was increased significantly for second and additional
residential lines, and for multi-line business customers. SLC ceiling
increases began in July 1997 and will be phased in over a two-year
period.
- PRESUBSCRIBED INTEREXCHANGE CARRIER CHARGE ("PICC"). The FCC created
a new PICC access charge rate element. The PICC is a flat-rate, per-line
charge that is recovered by LECs from IXCs. The charge is designed to
recover common line revenue not recovered through SLCs. Effective
January 1, 1998, the maximum permitted interstate PICC charge is $0.53
per month for primary residential lines and $1.50 per month for second
and additional residential lines. The initial maximum interstate PICC
for multi-line businesses are $2.75. The ceilings will be permitted to
increase over time.
- CARRIER COMMON LINE CHARGE ("CCL"). As the ceilings on the SLCs and
PICCs increase, the per-minute CCL charge will be eliminated. Until
then, the CCL will be assessed on originating minutes of use. Thus,
ILECs will charge lower rates for terminating than originating access.
In addition, Long-term Support ("LTS") payments for universal service
will be eliminated from the CCL charge.
- LOCAL SWITCHING. Effective January 1, 1998, ILECs subject to
price-cap regulation were required to move non-traffic-sensitive ("NTS")
costs of local switching associated with line ports to common line rate
elements and recover them through the common line charge discussed
above. Local switching costs attributable to dedicated trunk ports must
be moved to the trunking basket and recovered through flat-rate monthly
charges.
- TRANSPORT. The "unitary" rate structure option for tandem-switched
transport will be eliminated effective July 1, 1998. For price cap LECs,
additional rate structure changes became effective on January 1, 1998,
which altered the recovery of certain NTS costs of tandem- switching and
multiplexing and the minutes-of-use assumption employed to determine
tandem-switched transport prices. Also effective January 1, 1998,
certain costs currently recovered through the Transport Interconnection
Charge ("TIC") were reassigned to specified facilities charges. The
reassignment of tandem costs currently recovered through the TIC to the
tandem switching charge will be phased in evenly over a three-year
period. Residual TIC charges will be covered in part through the PICC,
and price cap reductions will be targeted at the per-minute residual TIC
until it is eliminated.
In other actions, the FCC clarified that ILECs may not assess
interstate access charges on the purchasers of unbundled network
elements or information services providers (including ISPs). Further
regulatory actions affecting ISPs are being considered in a FCC notice
of inquiry released on December 24, 1996. The FCC also decided not to
adopt any regulations governing the provision of terminating access by
CLECs. ILECs also were ordered to adjust their access charge rate levels
to reflect contributions to and receipts from the new universal service
funding mechanisms.
The FCC also announced that it will, in a subsequent Report and Order,
provide detailed rules for implementing a market-based approach to
further access charge reform. That process will give ILECs progressively
greater flexibility in setting rates as competition develops, gradually
replacing regulation with competition as the primary means of setting
prices. The FCC also adopted a "prescriptive safeguard" to bring access
rates to competitive levels in the absence of competition. For all
services then still subject to price caps and not deregulated in
response to competition, the FCC required ILECs subject to price caps to
file Total Service Long Run Incremental Cost ("TSLRIC") cost studies no
later than February 8, 2001.
67
73
This series of decisions is likely to have a significant impact on the
operations, expenses, pricing and revenue of the Company and costs
vis-a-vis larger, more efficient carriers such as AT&T, MCI and Sprint.
Various parties have sought reconsideration or appeal of the FCC's access
charge rulings and all or part of the order ultimately could be set aside
or revised. The Company cannot predict the outcome of these proceedings.
UNIVERSAL SERVICE REFORM. On May 8, 1997, the FCC released an order in its
CC Docket No. 96-45, which reforms the current system of interstate universal
service support and implements the universal service provisions of the
Telecommunications Act. The FCC established a set of policies and rules that
ensure that low-income consumers and consumers that live in rural, insular and
high-cost areas receive a defined set of local telecommunications services at
affordable rates. This is accomplished in part through expansion of direct
consumer subsidy programs and in part by ensuring that rural, small and
high-cost LECs continue to receive universal service subsidy support. The FCC
also created new programs to subsidize connection of eligible schools, libraries
and rural health care providers to telecommunications networks. These programs
will be funded by assessment of eligible revenue of nearly all providers of
interstate telecommunications carriers, including the Company.
The Company, like other telecommunications carriers that provide interstate
telecommunications services, will be required to contribute a portion of its
end-user telecommunications revenue to fund universal service programs. These
contributions became due beginning in 1998 for all providers of interstate
telecommunications services. Such contributions are assessed based on
intrastate, interstate and international end user telecommunications revenue.
Contribution factors vary quarterly, and carriers, including the Company, are
billed each month. Contribution factors for the first three quarters of 1998
have been determined by the FCC as follows: first quarter, second quarter and
third quarter factors are 3.19%, 3.14% and 3.14%, respectively, for the high
cost and low income funds (interstate and international end user
telecommunications revenue) and 0.72%, 0.76% and 0.75%, respectively, for the
schools, libraries and rural health funds (intrastate, interstate and
international end user communications revenue). In addition, many state
regulatory agencies have instituted proceedings to revise state universal
support mechanisms to make them consistent with the requirements of the
Telecommunications Act. As a result, the Company will be subject to state, as
well as federal, universal service fund contribution requirements, which will
vary from state to state. Several parties have appealed the FCC's May 8th order,
and these appeals have been consolidated in the U.S. Court of Appeals for the
Fifth Circuit. In addition, a number of telecommunications companies have filed
a petition for a stay with the FCC, which is currently pending.
Pursuant to the Universal Service Order, all carriers were required to
submit a Universal Service Fund worksheet in September 1997. The Company has
filed its Universal Service Fund worksheet. The amounts remitted to the
Universal Service Fund may be billed to the Company's customers. If the Company
does not bill these amounts to its customers, its profit margins may be less
than if it had elected to do so. However, if the Company elects to bill these
amounts to its customers, customers may reduce their use of the Company's
services, or elect to use the services provided by the Company's competitors,
which may have a material adverse effect upon the Company's business, financial
condition, or results of operation. The Company is eligible to qualify as a
recipient of universal service support if it elects to provide facilities-based
service to areas designated for universal service support and if it complies
with federal and state regulatory requirements to be an eligible
telecommunications carrier. The FCC's decisions in CC Docket No. 96-45 could
have a significant impact on future operations of the Company. Significant
portions of the FCC's order have been appealed and are under review by the U.S.
Court of Appeals for the Fifth Circuit. The Company cannot predict the outcome
of these proceedings.
CURRENT COMPANY CERTIFICATIONS. The Company has received Section 214
authorization from the FCC allowing it to engage in business as a resale and
facilities-based international carrier.
68
74
STATE REGULATION
Most states require a certification or other authorization to offer local
exchange and long distance intrastate services. These certifications generally
require a showing that the carrier has adequate financial, managerial and
technical resources to offer the proposed services in a manner consistent with
the public interest. In addition to tariff requirements, most states require
that common carriers charge just and reasonable rates and not discriminate among
similarly situated customers. Some states also require the filing of periodic
reports, the payment of various regulatory fees and surcharges, and compliance
with service standards and consumer protection rules. States generally retain
the right to sanction a carrier or to revoke certification if a carrier violates
relevant laws and/or regulations. If any state regulatory agency were to
conclude that the Company is or was providing intrastate services without the
appropriate authority, the agency could initiate enforcement actions, which
could include the imposition of fines, a requirement to disgorge revenues, or
the refusal to grant the regulatory authority necessary for the future provision
of intrastate telecommunications services. The Company holds authority to
provide intrastate interLATA and, where authorized, intraLATA toll service in 49
states. The authority in some states may be limited to resale of long distance
service. The Company is in the process of obtaining intrastate toll authority in
Alaska. The Company has authority to provide competitive local exchange service
in Massachusetts, New Hampshire and Rhode Island. The Company has applications
pending to provide resold and facilities-based competitive local exchange
services in several other Northeastern and Southeastern states. There is no
industry consensus on what constitutes a "facilities-based" carrier and the FCC
and state regulatory agency definitions vary accordingly. There can be no
assurance that the Company will receive the authorizations it seeks currently or
in the future.
The FCC imposes on entities authorized to provide international
telecommunications service prior approval requirements for "transfers of
control", including pro forma transfers. The Company is also subject to
requirements in certain states to obtain prior approval for, or notify the state
commission of, any transfers of control, sales of assets, corporate
reorganizations, issuances of stock or debt instruments and related
transactions. The Company did not obtain prior approval for its July 1998
corporate reorganization to create a holding company structure whereby Network
Plus Corp. became the holding company of Network Plus, Inc. The Company is in
the process of filing the necessary papers at the FCC and relevant state
commissions seeking nunc pro tunc (retroactive) approval of the transaction on
the grounds that the transaction serves certain important business needs of the
Company and enhances the Company's ability to market and provide services more
efficiently. Although the Company believes that its applications will be
approved in due course, there can be no assurance that the FCC or state
commissions will grant the Company's requests for retroactive approval and/or
will not impose fines or license conditions, commence revocation proceedings or
otherwise exercise their authority to address violations of applicable statutes
and regulations.
The Company believes that most, if not all, states in which it proposes to
operate as a local telecommunications provider will require certification or
other authorization to offer local intrastate services. Many of the states in
which the Company intends to operate are in the process of addressing issues
relating to the regulation of CLECs.
In some states, existing state statutes, regulations or regulatory policy
may preclude some or all forms of local service competition. However, Section
253 of the Telecommunications Act prohibits states and localities from adopting
or imposing any legal requirement that may prohibit, or have the effect of
prohibiting, the ability of any entity to provide any interstate or intrastate
telecommunications service. The FCC has the authority to preempt any such state
or local requirements to the extent necessary to enforce the Telecommunications
Act's open market entry requirements. States and localities may, however,
continue to regulate the provision of intrastate telecommunications services and
require carriers to obtain certificates or licenses before providing service if
such requirements do not constitute prohibited barriers to market entry.
69
75
Some states in which the Company operates are considering legislation that
could impede efforts by new entrants in the local services market to compete
effectively with ILECs. For example, some state public utility commissions
("PUCs") are currently considering actions to preserve universal service and
promote the public interest. The actions may impose conditions on the
certificate issued to an operating company that would require it to offer
service on a geographically widespread basis through (i) the construction of
facilities to serve all residents and business customers in such areas, (ii) the
acquisition from other carriers of network facilities required to provide such
service, or (iii) the resale of other carriers' services. The Company believes
that state PUCs have limited authority to impose such requirements under the
Telecommunications Act. The imposition of such conditions by state PUCs,
however, could increase the cost to operating companies of providing local
exchange services, or could otherwise affect the operating companies'
flexibility to offer services. Another state action that impedes efforts by new
entrants to compete in the local exchange services market is the enactment of
state laws that prohibit competition in certain areas of a state. For example,
Section 65-4-201(d) of the Tennessee Code prohibits local exchange
telecommunications competition in areas of Tennessee served by carriers with
fewer than 100,000 access lines within the state. Other states have or may enact
similar provisions; however, to date the FCC has considered Texas and Wyoming
statutory provisions that are virtually identical to the Tennessee statute, and
has preempted both statutes as violative of sec.253(a) of the Telecommunications
Act. A petition for preemption of the Tennessee statute has been filed at the
FCC.
The Company believes that, as the degree of intrastate competition
increases, the states will offer the ILECs increasing pricing flexibility. This
flexibility may present the ILECs with an opportunity to subsidize services that
compete with the Company's services with revenue generated from non-competitive
services, thereby allowing ILECs to offer competitive services at prices below
the cost of providing the service. The Company cannot predict the extent to
which this may occur or its impact on the Company's business.
LOCAL INTERCONNECTION. The Telecommunications Act imposes a duty upon all
ILECs to negotiate in good faith with potential interconnectors to provide
interconnection to the ILEC networks, exchange local traffic, make unbundled
network elements available and permit resale of most local services. In the
event that negotiations do not succeed, the Company has a right to seek state
PUC arbitration of any unresolved issues. Arbitration decisions involving
interconnection arrangements in several states have been challenged in lawsuits
filed in U.S. District Court by the affected ILECs. The Company may experience
difficulty in obtaining timely ILEC implementation of local interconnection
agreements, and there can be no assurance the Company will offer local services
in these areas in accordance with its projected schedule, if at all. See "Risk
Factors -- Lack of Interconnection and Peering Agreements".
LOCAL GOVERNMENT AUTHORIZATIONS. If the Company constructs local networks,
it will be required to obtain street use and construction permits and licenses
and/or franchises to install and expand its fiber optic networks using municipal
rights-of-way. In some municipalities the Company may be required to pay license
or franchise fees based on a percentage of gross revenue or on a per linear foot
basis, as well as post performance bonds or letters of credit. There can be no
assurance that the Company will not be required to post bonds in the future. In
many markets, the ILECs do not pay such franchise fees or pay fees that are
substantially less than those that will be required to be paid by the Company.
To the extent that competitors do not pay the same level of fees as the Company,
the Company could be at a competitive disadvantage. However, the
Telecommunications Act provides that any compensation extracted by states and
localities for use of public rights-of-way must be "fair and reasonable",
applied on a "competitively neutral and nondiscriminatory basis" and be
"publicly disclosed" by such government entity. See "Risk Factors -- The
Telecommunications Act and Other Regulation".
70
76
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table provides certain information regarding the executive
officers and directors of the Company, including their ages as of August 15,
1998.
NAME AGE POSITIONS
- ---- --- ---------
Robert T. Hale............................. 60 Chairman of the Board of Directors
Robert T. Hale, Jr......................... 32 Chief Executive Officer, President and
Director
James J. Crowley........................... 34 Executive Vice President, Chief Operating
Officer, Secretary and Director
David Martin............................... 59 Director
Joseph C. McNay............................ 64 Director
Michael F. Oyster.......................... 42 Executive Vice President of Networks and
Product Development
Joseph Haines.............................. 36 Vice President of Local Operations
Steven L. Shapiro.......................... 40 Vice President of Finance, Chief Financial
Officer and Treasurer
Steven J. Stanfill......................... 45 Vice President of Network Services
Kevin B. McConnaughey...................... 40 Vice President and General Manager of
International Services
- ---------------
ROBERT T. HALE is a co-founder of the Company and has served as Chairman of
the Board since its inception in 1990. Mr. Hale is a founding member of the
Telecommunications Resellers Association and has served as chairman of its
Carrier Committee since 1993 and served as chairman of its board from May 1995
to May 1997. Mr. Hale was president of Hampshire Imports, the original importer
of Laura Ashley Womenswear to the U.S. and a manufacturer of exclusive women's
apparel, from 1968 to 1992.
ROBERT T. HALE, JR., is a co-founder of the Company and has served as Chief
Executive Officer, President and Director since its inception in 1990. He was
employed by U.S. Telecenters, a sales agent for NYNEX Corporation, from 1989 to
1990, and as a sales representative at MCI from 1988 to 1989.
JAMES J. CROWLEY has served as Executive Vice President since 1994 and
became Chief Operating Officer and a Director in 1998. He was an attorney at
Hale and Dorr LLP, a Boston law firm, from 1992 to 1994.
DAVID MARTIN has served as a Director of the Company since September 1998.
Mr. Martin was employed by Texas Instruments Inc. from 1960 until June 1998,
most recently as Executive Vice President. Mr. Martin is a member of the Board
of Directors of Mathsoft Inc.
JOSEPH C. MCNAY has served as a Director of the Company since September
1998. Mr. McNay serves as Chairman and Chief Investment Officer of Essex
Investment Management Company, LLC, a private investment management company
founded by Mr. McNay in 1976. Previously he served as Executive Vice President
and Director of Endowment Management & Research Corp. Mr. McNay serves as
Trustee of University Hospital, Boston, Trustee of Simmons College, Trustee of
the Dana Farber Cancer Institute, and Chairman and Trustee of Children's
Hospital, Boston.
MICHAEL F. OYSTER was named Executive Vice President of Networks and
Product Development in July 1998. Mr. Oyster served as Regional Vice President
and General Manager, and in other capacities, at Teleport Communications Group
from August 1997 to July 1998. Mr. Oyster served in various capacities at AT&T
from 1977 to 1997.
71
77
JOSEPH HAINES was named Vice President of Local Operations in July 1998.
From 1992 to 1998, Mr. Haines held various positions with Teleport
Communications Group, most recently as its Regional Vice President of
Operations.
STEVEN L. SHAPIRO has served as Vice President of Finance, Chief Financial
Officer and Treasurer since July 1997. He served as Vice President and
Controller of Grossman's Inc., a publicly held retailer of building materials,
from 1993 to 1997, and as its Assistant Controller from 1986 to 1993. Mr.
Shapiro served as a certified public accountant with Arthur Andersen & Co. from
1979 to 1986.
STEVEN J. STANFILL has served as Vice President of Network Services since
1994. He served as Vice President of Network Operations at Ascom Communications,
a telecommunication services provider, from 1989 to 1994. From 1983 to 1989, Mr.
Stanfill served in various management capacities at National Applied Computer
Technologies, a telecommunications switching equipment manufacturer.
KEVIN B. MCCONNAUGHEY has served as Vice President and General Manager of
International Services since March 1997. From 1995 to 1997, he was Associate
Vice President of Business Development for Teleglobe International. From 1990 to
1995, Mr. McConnaughey was employed by Sprint International, where he held a
variety of product management, international carrier relations and marketing
positions.
Each director serves until his or her successor is duly elected and
qualified. Officers serve at the discretion of the Board of Directors. Robert T.
Hale, Jr. is the son of Robert T. Hale. There are no other family relationships
among the Company's executive officers and directors. No executive officer of
the Company is a party to an employment agreement with the Company.
COMPENSATION OF DIRECTORS
In July 1998, the Company adopted the 1998 Director Stock Option Plan (the
"Director Plan"). Under the terms of the Director Plan, options to purchase
5,000 shares of Common Stock will be granted to each new non-employee director
upon his or her initial election to the Board of Directors. Annual options to
purchase 2,500 shares of Common Stock will also be granted to each non-employee
director on the date of each annual meeting of stockholders, or on August 1 of
each year if no annual meeting is held by such date. Options granted under the
Director Plan will vest in four equal annual installments beginning on the first
anniversary of the date of grant. The exercisability of these options will be
accelerated upon the occurrence of an Acquisition Event (as defined in the
Director Plan). The exercise price of options granted under the Director Plan is
equal to the fair market value of the Common Stock on the date of grant. A total
of 100,000 shares of Common Stock may be issued upon the exercise of stock
options granted under the Director Plan. In addition, Directors are reimbursed
for out-of-pocket expenses incurred as a result of their service as Directors.
Pursuant to the Director Plan, on September 3, 1998 Messrs. Martin and McNay
each received an option to purchase 5,000 shares of Common Stock at an exercise
price of $15.00 per share.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth certain information concerning the cash and
non-cash compensation during fiscal year 1997 earned by or awarded to the Chief
Executive Officer, the four other most highly compensated executive officers of
the Company whose combined salary and bonus exceeded $100,000 during the fiscal
year ended December 31, 1997, and the Chief Financial Officer of the Company
(the "Named Executive Officers").
72
78
ANNUAL COMPENSATION
ANNUAL COMPENSATION
---------------------
NAME AND TITLE YEAR SALARY BONUS(1)
- -------------- ---- -------- --------
Robert T. Hale, Jr.......................................... 1997 $355,431(2) $2,770
Chief Executive Officer and President
Robert T. Hale.............................................. 1997 220,692(3) 2,725
Chairman of the Board of Directors
James J. Crowley............................................ 1997 160,000 4,353
Executive Vice President and Chief Operating Officer
Steven J. Stanfill.......................................... 1997 121,615 2,888
Vice President of Network Services
Kevin B. McConnaughey(4).................................... 1997 100,961 --
Vice President and General Manager
of International Services
Steven L. Shapiro (5)....................................... 1997 70,096 --
Vice President of Finance, Chief
Financial Officer and Treasurer
- ---------------
(1) Includes the cash value of travel awarded as bonuses.
(2) Includes sales commissions of $49,662. Robert T. Hale, Jr.'s annual base
salary (excluding sales commissions) was reduced to $285,000 effective
August 17, 1998.
(3) Robert T. Hale's annual base salary was reduced to $195,000 effective
December 23, 1997.
(4) Commenced employment with the Company on March 17, 1997.
(5) Commenced employment with the Company on July 1, 1997.
EMPLOYEE BENEFIT PLANS
1998 STOCK INCENTIVE PLAN
The Company's 1998 Stock Incentive Plan (the "1998 Incentive Plan") was
adopted by the Company in July 1998. The 1998 Incentive Plan provides for the
grant of stock-based awards to employees, officers and directors of, and
consultants or advisors to, the Company. Under the 1998 Incentive Plan, the
Company may grant options that are intended to qualify as incentive stock
options ("incentive stock options") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), options not intended to
qualify as incentive stock options ("nonqualified options"), restricted stock
and other stock-based awards. Incentive stock options may be granted only to
employees of the Company. A total of 1,400,000 shares of common stock may be
issued upon the exercise of options or other awards granted under the 1998
Incentive Plan. The number of shares with respect to which awards may be granted
to any employee under the 1998 Incentive Plan may not exceed 700,000 during any
calendar year. The exercisability of options or other awards granted under the
1998 Incentive Plan may in certain circumstances be accelerated in connection
with an Acquisition Event (as defined in the 1998 Incentive Plan). Options and
other awards may be granted under the 1998 Incentive Plan at exercise prices
that are equal to, less than or greater than the fair market value of the
Company's common stock, and the Board generally retains the right to reprice
outstanding options. The 1998 Incentive Plan expires in June 2008, unless sooner
terminated by the Board. As of July 15, 1998, the Company had granted options to
purchase an aggregate of 741,140 shares of Common Stock under the 1998 Incentive
Plan, including an option to purchase 120,000 shares to Mr. Crowley, an option
to purchase 23,334 shares to Mr. Stanfill, an option to purchase 14,620 shares
to Mr. McConnaughey, an option to purchase 10,045 shares to Mr. Shapiro, an
option to purchase 40,000 shares to Mr. Oyster and an option to purchase 40,000
shares to Mr. Haines. The remainder of the options were granted to approximately
190 employees of, and one consultant to, the Company. These options generally
73
79
become exercisable in four equal annual installments beginning on the first
anniversary of the date of grant, subject in certain cases to accelerated
vesting in connection with an Acquisition Event.
401(k) PLAN
Effective January 1, 1995, the Company adopted the Employee 401(k) and
Profit Sharing Plan (the "401(k) Plan") covering the Company's eligible
employees. Pursuant to the 401(k) Plan, employees may elect to reduce their
current compensation by up to the lesser of 15% of eligible compensation or the
statutorily prescribed annual limit ($10,000 in 1998) and have the amount of
such reduction contributed to the 401(k) Plan. The 401(k) Plan permits, but does
not require, additional contributions to the 401(k) Plan by the Company on
behalf of all participants. The Company contributed $175,000 to the 401(k) Plan
in 1995. No additional contributions have been made by the Company. The 401(k)
Plan is intended to qualify under Section 401 of the Code, so that contributions
by employees or by the Company to the 401(k) Plan, and income earned on plan
contributions, are not taxable to employees until withdrawn, and contributions
by the Company, if any, are deductible by the Company when made.
CERTAIN TRANSACTIONS
The Company's office space in Quincy, Massachusetts is leased from a trust,
the beneficiaries of which are the stockholders of the Company. The Company
makes monthly rental payments to the trust of $35,900. In each of the years
ending December 31, 1997, 1996 and 1995, the amount paid to the trust was
$431,000. The Company is currently in the process of negotiating an increase in
the rental payments under this lease and expects that, following such increase,
the lease will be on terms no less favorable to the Company than could be
obtained in an arms' length transaction. The Company is also contingently liable
as a guarantor on a bank loan made to the trust. The outstanding balance on the
loan at December 31, 1997 and 1996 was approximately $1.5 million. See
"Description of Certain Indebtedness".
On September 2, 1998, the Company paid a dividend in the aggregate amount
of $5.0 million. As a result, $2.5 million was distributed to each of Robert T.
Hale and Robert T. Hale, Jr. Robert T. Hale, Jr., reinvested $1.9 million in the
Company (representing approximately the distribution to him, net of his
estimated tax liability resulting from such dividend) in the form of a long-term
loan to the Company. Interest on such loan will accrue at Fleet's prime rate.
Principal and interest on such loan will be payable 10 days after the redemption
of the Series A Preferred Stock.
In December 1997, the Company's stockholders issued the Company loans
totaling $1.8 million. Interest on the loans accrued at the bank's prime rate
(8.5% at December 31, 1997) and was payable monthly. There was no required
period for principal repayment. The loans, including accrued interest of
$12,017, were repaid in May 1998. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations".
The Company had a service arrangement with a marketing company, the
controlling stockholders of which include the Company's stockholders. The
marketing company provided services relative to establishing, training and
expanding the Company's sales organization. For the years ending December 31,
1997, 1996 and 1995, the amounts paid to the marketing company were $55,000,
$132,000 and $197,000, respectively. This service arrangement was terminated in
May 1997.
74
80
STOCK OWNERSHIP
The following table sets forth as of September 15, 1998 the number of
shares of Common Stock and the percentage of the outstanding shares of such
class that are beneficially owned by (i) each person that is the beneficial
owner of more than 5% of the outstanding shares of Common Stock, (ii) each of
the directors and Named Executive Officers of the Company and (iii) all of the
current directors and executive officers of the Company as a group.
AMOUNT AND NATURE
OF BENEFICIAL OWNERSHIP(1)
--------------------------
NUMBER OF PERCENT OF
NAME AND ADDRESS OF BENEFICIAL OWNER SHARES CLASS
- ------------------------------------ --------- ----------
5% STOCKHOLDERS
Robert T. Hale.............................................. 5,000,000 50%
c/o Network Plus, Inc.
234 Copeland Street
Quincy, Massachusetts 02169
Robert T. Hale, Jr.......................................... 5,000,000 50%
c/o Network Plus, Inc.
234 Copeland Street
Quincy, Massachusetts 02169
OTHER DIRECTORS
James J. Crowley............................................ 0 --
David Martin................................................ 0 --
Joseph C. McNay............................................. 0 --
OTHER NAMED EXECUTIVE OFFICERS
Steven L. Shapiro........................................... 0 --
Kevin B. McConnaughey....................................... 0 --
Steven J. Stanfill.......................................... 0 --
All directors and executive officers as a group (10
persons).................................................. 10,000,000 100%
- ---------------
(1) Each stockholder possesses sole voting and investment power with respect to
the shares listed. Excludes options that vest subsequent to November 14,
1998.
75
81
DESCRIPTION OF CAPITAL STOCK
The Company's Certificate of Incorporation (the "Charter") authorizes (i)
20,000,000 shares of Common Stock, $.01 par value, and (ii) 1,000,000 shares of
Preferred Stock, $.01 par value, of which 50,000 shares have been designated
13.5% Series A Cumulative Preferred Stock due 2009 and 50,000 shares have been
designated 13.5% Series A1 Cumulative Preferred Stock due 2009. Set forth below
and under "Description of the Series A Preferred Stock" is a description of the
capital stock of the Company.
COMMON STOCK
As of July 15, 1998, there were 10,000,000 shares of Common Stock issued
and outstanding and held of record by two stockholders. The holders of Common
Stock are entitled to receive dividends when and as dividends are declared by
the Board of Directors of the Company out of funds legally available therefor,
provided that if any shares of Preferred Stock are at the time outstanding, the
payment of dividends on the Common Stock or other distributions may be subject
to the declaration and payment of full cumulative dividends on outstanding
shares of Preferred Stock. Holders of Common Stock are entitled to one vote per
share on all matters submitted to a vote of the stockholders, including the
election of directors. Upon any liquidation, dissolution or winding up of the
affairs of the Company, whether voluntary or involuntary, any assets remaining
after the satisfaction in full of the prior rights of creditors and the
aggregate liquidation preference of any Preferred Stock (including the Series A
Preferred Stock) then outstanding will be distributed to the holders of Common
Stock ratably in proportion to the number of shares held by them. The Common
Stock is not publicly traded. See "Risk Factors -- Control by Existing
Stockholders; Potential Conflict of Interest; Deadlock; Antitakeover
Provisions".
PREFERRED STOCK
Under the Charter, the Board of Directors has the authority to issue up to
1,000,000 shares of Preferred Stock from time to time in one or more series with
such preferences, terms and rights as the Board of Directors may determine
without further action by the stockholders of the Company. Accordingly, the
Board of Directors has the power to establish the provisions, if any, relating
to dividends, voting rights, redemption rates, sinking funds, liquidation
preferences and conversion rights for any series of Preferred Stock issued in
the future. For a description of the Series A Preferred Stock, see "Description
of the Series A Preferred Stock". No other shares of preferred stock have been
issued or are outstanding.
One of the effects of undesignated Preferred Stock may be to enable the
Board of Directors to render more difficult or to discourage an attempt to
obtain control of the Company by means of a tender offer, proxy contest, merger
or otherwise, and thereby to protect the continuity of the Company's management.
The issuance of shares of the Preferred Stock pursuant to the Board of
Directors' authority described above may adversely affect the rights of the
holders of Common Stock. For example, Preferred Stock issued by the Company may
rank prior to the Common Stock as to dividend rights, liquidation preference or
both, may have full or limited voting rights and may be convertible into shares
of Common Stock. Accordingly, the issuance of shares of Preferred Stock may
discourage bids for the Common Stock or may otherwise adversely affect the
market price of the Common Stock.
LIMITATION OF LIABILITY OF DIRECTORS
The Company's Charter eliminates the personal liability of the Company's
directors to the Company or its stockholders for monetary damages for breach of
a director's fiduciary duty to the full extent permitted by the Delaware General
Corporation Law (the "DGCL").
76
82
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Charter provides that the directors and officers of the Company shall
be indemnified by the Company to the fullest extent authorized by Delaware law,
as it now exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with service for or on behalf of
the Company. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the Charter, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In addition, the Charter
of the Company provides that the directors of the Company will not be personally
liable for monetary damages to the Company for breaches of their fiduciary duty
as directors if they act in good faith and in a manner they reasonably believe
to be in, or not opposed to, the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
their conduct was unlawful.
The Company has purchased a general liability insurance policy that covers
certain liabilities of directors and officers of the Company arising out of
claims based on acts and omissions in their capacity as directors and officers.
CERTAIN CHARTER AND BY-LAW PROVISIONS
In the event the Company's Common Stock becomes or may become widely held,
the Board of Directors or the stockholders may adopt certain charter or by-law
provisions that have the effect of discouraging, delaying or making more
difficult a change in control of the Company or preventing the removal of
incumbent directors even if a majority of the Company's stockholders were to
deem such an attempt to be in the best interests of the Company. Such provisions
may include a classified board of directors, limitations in the manner in which
directors are elected and limitations on matters that may be presented at
meetings by stockholders.
DESCRIPTION OF CERTAIN INDEBTEDNESS
NEW REVOLVING CREDIT FACILITY
The description below presents the material terms of the New Revolving
Credit Facility. Definitive documentation setting forth the full terms and
conditions of the New Revolving Credit Facility is available upon request from
the Company. See "Risk Factors -- Substantial Future Capital Requirements; Need
for Additional Financing; Substantial Leverage".
On October 7, 1998, the Company and NPI entered into a loan agreement with
Goldman Sachs Credit Partners L.P. and Fleet for the New Revolving Credit
Facility. The New Revolving Credit Facility is a $60 million facility,
concurrent with the closing of which the Company terminated the Former Bank
Credit Facility. The New Revolving Credit Facility has a term of 18 months and
is secured by the assets of the Company. Under the New Revolving Credit
Facility, up to $60 million is available, of which $30 million is available
based upon a percentage of accounts receivable. Interest is payable at one
percent above the prime rate. The New Revolving Credit Facility requires the
Company, among other things, to meet minimum levels of revenues and EBITDA, and
not to exceed certain customer turnover levels and debt to revenue ratios.
STOCKHOLDER LOAN
On September 2, 1998, Robert T. Hale, Jr., the Company's President and
Chief Executive Officer, loaned $1.9 million to the Company. This amount
represents a reinvestment in the Company of a $2.5 million dividend distribution
to Robert T. Hale, Jr., net of the estimated tax liability related to such
distribution. Interest on such loan accrues at Fleet's prime rate. Principal and
interest on such
77
83
loan will be payable 10 days after redemption of the Series A Preferred Stock.
See "Certain Transactions".
FORMER BANK CREDIT FACILITY
The Former Bank Credit Facility with Fleet provided NPI the ability to
borrow amounts up to $23 million. This facility was terminated in connection
with the closing of the New Revolving Credit Facility.
DESCRIPTION OF THE SERIES A PREFERRED STOCK
The following is a summary of the material terms of the Certificate of
Designation and the Series A Preferred Stock. A copy of the Certificate of
Designation and the form of Series A Preferred Stock is available upon request
to the Company at the address set forth under "Available Information". The
following summary of certain provisions of the Certificate of Designation does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the Certificate of Designation. The
definitions of certain capitalized terms used but not defined in the following
summary are set forth under "-- Certain Definitions". Other capitalized terms
used but not defined herein and not otherwise defined under "-- Certain
Definitions" are defined in the Certificate of Designation.
GENERAL
At the consummation of the Initial Offering, the Company issued 40,000
shares of its 13.5% Series A Cumulative Preferred Stock Due 2009, $0.01 par
value per share.
RANKING
The Series A Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding-up and dissolution, rank (i) senior to all
classes of common stock and to each other class of Capital Stock of the Company
or series of Preferred Stock of the Company outstanding on the Issue Date and
each other class or series established hereafter by the Board of Directors the
terms of which do not expressly provide that it ranks senior to, or on a parity
with, the Series A Preferred Stock as to dividend rights and rights on
liquidation, winding-up and dissolution of the Company (collectively referred
to, together with all classes of common stock of the Company, as "Junior
Stock"); (ii) on a parity with each class of Capital Stock of the Company or
series of Preferred Stock of the Company established hereafter by the Board of
Directors, the terms of which expressly provide that such class or series will
rank on a parity with the Series A Preferred Stock as to dividend rights and
rights on liquidation, winding-up and dissolution (collectively referred to as
"Parity Stock"); and (iii) junior to each class of Capital Stock of the Company
or series of Preferred Stock of the Company established hereafter by the Board
of Directors, the terms of which expressly provide that such class or series
will rank senior to the Series A Preferred Stock as to dividend rights and
rights upon liquidation, winding-up and dissolution of the Company (collectively
referred to as "Senior Stock").
While any shares of Series A Preferred Stock are outstanding, the Company
may not authorize, create or increase the authorized amount of any class or
series of stock that ranks senior to or on parity with the Series A Preferred
Stock with respect to the payment of dividends or amounts upon liquidation,
dissolution or winding up without the consent of the holders of a majority of
the outstanding shares of Series A Preferred Stock. However, without the consent
of any holder of Series A Preferred Stock, the Company may create additional
classes of stock, increase the authorized number of shares of preferred stock or
issue series of a stock that ranks junior to the Series A Preferred Stock with
respect, in each case, to the payment of dividends and amounts upon liquidation,
dissolution and winding up. See "-- Voting Rights".
78
84
All claims of the holders of the Series A Preferred Stock, including
without limitation, claims with respect to dividend payments, redemption
payments, mandatory repurchase payments or rights upon liquidation, winding-up
or dissolution, shall rank junior to the claims of any holders of any debt of
the Company and its Subsidiary and all other creditors of the Company and its
Subsidiary. Substantially all the operations of the Company is conducted through
its Subsidiary and in future will be conducted through one or more of its
subsidiaries. Accordingly, the Company is and will be a holding company with no
assets other than the capital stock of such subsidiaries. Claims of creditors of
such subsidiaries, including trade creditors, secured creditors and creditors
holding indebtedness and guarantees issued by such subsidiaries, and claims of
preferred stockholders (if any) of such subsidiaries generally will have
priority with respect to the assets and earnings of such subsidiaries over the
claims of the Company. Although the Certificate of Designation limits the
incurrence of Debt of the Company and certain of its subsidiaries, such
limitation is subject to a number of significant qualifications. Moreover, the
Certificate of Designation does not impose any limitation on the incurrence of
liabilities that are not considered Debt under the Certificate of Designation.
See "-- Certain Covenants -- Limitation on Debt".
DIVIDENDS
The holders of shares of Series A Preferred Stock will be entitled to
receive, when, as and if dividends are declared by the Board of Directors out of
funds of the Company legally available therefor, cumulative preferential
dividends from the Issue Date at a rate per share of 13.5% per annum of the
Specified Amount per share of Series A Preferred Stock, payable quarterly in
arrears on each of March 1, June 1, September 1 and December 1 (each a "Dividend
Payment Date") or, if any such date is not a Business Day, on the next
succeeding Business Day, to the holders of record as of the next preceding
February 15, May 15, August 15 and November 15, respectively. Subject to the
next succeeding sentence, dividends will be payable in cash. If any dividend
(other than any Special Dividends) payable on any Dividend Payment Date on or
before September 1, 2003 is not declared or paid in full in cash on such
Dividend Payment Date, the amount payable as dividends on such Dividend Payment
Date (other than any Special Dividends) that is not paid in cash on such
Dividend Payment Date will be added automatically to the Specified Amount of the
Series A Preferred Stock on such Dividend Payment Date (such dividends being
herein called the "Accumulated Dividends"). The first dividend payment of Series
A Preferred Stock will be payable on December 1, 1998. Dividends payable on the
Series A Preferred Stock will be computed on a basis of the 360-day year
consisting of twelve 30-day months and will be deemed to accrue on a daily
basis.
For a discussion of certain Federal income tax considerations relevant to
the payment of dividends on the Series A Preferred Stock, see "Certain United
States Federal Income Tax Consequences".
Dividends on the Series A Preferred Stock will accrue whether or not the
Company has earnings or profits, whether or not there are funds legally
available for the payment of such dividends and whether or not dividends are
declared. Dividends will accumulate to the extent they are not paid on the
Dividend Payment Date for the period to which they relate. The Certificate of
Designation will provide that the Company will take all actions required or
permitted under the Delaware General Corporation Law (the "DGCL") to permit the
payment of dividends on the Series A Preferred Stock.
No dividend whatsoever shall be declared or paid upon, or any sum set apart
for the payment of dividends upon, any outstanding share of the Series A
Preferred Stock with respect to any dividend period unless all dividends for all
preceding dividend periods have been added to the Specified Amount (if on or
before September 1, 2003), declared and paid, or declared and a sufficient sum
set apart for the payment of such dividend, upon all outstanding shares of
Series A Preferred Stock.
Except as provided in the next sentence, no dividend will be declared or
paid on any Parity Stock unless full cumulative dividends have been paid (or
deemed paid) on the Series A Preferred Stock for all prior dividend periods. If
accumulated dividends on the Series A Preferred Stock for all prior dividend
periods have not been paid (or deemed paid) in full then any dividend declared
on the
79
85
Series A Preferred Stock for any dividend period and on any Parity Stock will be
declared ratably in proportion to accrued and unpaid dividends on the Series A
Preferred Stock and such Parity Stock.
The Company will not (i) declare, pay or set apart funds for the payment of
any dividend or other distribution with respect to any Junior Stock or (ii)
redeem, purchase or otherwise acquire for consideration any Junior Stock through
a sinking fund or otherwise, unless (A) all accrued and unpaid dividends with
respect to the Series A Preferred Stock and any Parity Stock at the time such
dividends are payable have been paid (or deemed paid) or funds have been set
apart for payment of such dividends and (B) sufficient funds have been paid or
set apart for the payment of the dividend for the current dividend period with
respect to the Series A Preferred Stock and any Parity Stock.
OPTIONAL REDEMPTION
Except as set forth below, the Series A Preferred Stock will not be
redeemable at the option of the Company prior to September 1, 2003. Thereafter,
the Series A Preferred Stock will be redeemable, at the Company's option
(subject to the legal availability of funds therefor), in whole or in part, at
any time or from time to time, upon not less than 30 nor more than 60 days'
prior notice mailed by first-class mail to each Holder's registered address, at
the following redemption prices (expressed in percentages of the Specified
Amount thereof), plus, without duplication, an amount in cash equal to all
accumulated and unpaid dividends (including Special Dividends and an amount in
cash equal to a prorated dividend for any partial dividend period) (subject to
the rights of holders of record on the relevant record date to receive dividends
due on the relevant Dividend Payment Date), if redeemed during the 12-month
period commencing on September 1 of the years set forth below:
REDEMPTION
PERIOD PRICE
- ------ ----------
2003....................................................... 106.500%
2004....................................................... 104.333%
2005....................................................... 102.167%
2006 and thereafter........................................ 100.000%
In the case of any partial redemption, selection of the Series A Preferred
Stock for redemption will be made on a pro rata basis.
MANDATORY REDEMPTION
The Series A Preferred Stock is subject to mandatory redemption at its
Specified Amount, plus, without duplication, accumulated and unpaid dividends,
if any, on September 1, 2009 out of any funds legally available therefor.
In addition, as soon as practicable following the closing of a Senior Notes
Offering the net proceeds of which (excluding underwriting or other placement
fees and proceeds placed in escrow at the closing thereof pursuant to the terms
of such offering) received by the Company exceed $100 million, the Company will
be required to redeem (subject to the legal availability of funds therefor) all
outstanding shares of Series A Preferred Stock at a price in cash equal to 108%
of the Specified Amount thereof, plus, without duplication, an amount in cash
equal to all accumulated and unpaid dividends (including Special Dividends and
an amount in cash equal to a prorated dividend for any partial dividend period),
if any, to the date of redemption (subject to the rights of holders of record on
the relevant record date to receive dividends on the relevant Dividend Payment
Date).
In addition, if at any time and from time to time prior to September 1,
2001, the Company consummates one or more Public Equity Offerings, the Company
will be required to apply the first $25 million of net proceeds (excluding
underwriting or other placement fees and calculated on a cumulative basis
beginning with the first such Public Equity Offering) from such Public Equity
Offering or Offerings and one-half of each additional dollar of net proceeds
(excluding underwriting or other placement fees and calculated on a cumulative
basis beginning with the first such Public Equity Offering) in excess of $25
million to redeem the Series A Preferred Stock, at the following redemption
prices (expressed in percentages of the Specified Amount thereof), plus, without
80
86
duplication, an amount in cash equal to all accumulated and unpaid dividends
(including Special Dividends and an amount in cash equal to a prorated dividend
for any partial dividend period), if any, to the date of redemption (subject to
the rights of holders of record on the relevant record date to receive dividends
due on the relevant Dividend Payment Date), if redeemed during the period ending
on the dates set forth below:
REDEMPTION
PERIOD PRICE
- ------ ----------
June 1, 1999............................................... 102.000%
September 1, 1999.......................................... 104.000%
September 1, 2000.......................................... 106.000%
September 1, 2001.......................................... 108.000%
In the case of any partial redemption, selection of the Series A Preferred
Stock for redemption will be made on a pro rata basis.
The Company will not be required to make sinking fund payments with respect
to the Series A Preferred Stock. The Certificate of Designation will provide
that the Company will take all actions required or permitted under Delaware law
to permit such redemption.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
the Company, each holder of Series A Preferred Stock will be entitled to be
paid, out of the assets of the Company available for distribution to
stockholders, an amount equal to the Specified Amount per share of Series A
Preferred Stock held by such holder, plus, without duplication, an amount in
cash equal to all accumulated and unpaid dividends thereon to the date fixed for
liquidation, dissolution or winding-up before any distribution is made on any
Junior Stock, including the Common Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the amounts payable with
respect to the Series A Preferred Stock and all other Parity Stock are not paid
in full, the holders of the Series A Preferred Stock and the Parity Stock will
share equally and ratably in any distribution of assets of the Company in
proportion to the full liquidation preference and accumulated and unpaid
dividends to which each is entitled. After payment of the full amount of the
liquidation preference and accumulated and unpaid dividends to which they are
entitled, the holders of shares of Series A Preferred Stock will not be entitled
to any further participation in any distribution of assets of the Company.
However, neither the sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all the
property or assets of the Company nor the consolidation or merger of the Company
with one or more entities shall be deemed to be a liquidation, dissolution or
winding-up of the Company. The liquidation preference of the Series A Preferred
Stock will be $1,000 per share.
The Certificate of Designation will not contain any provision requiring
funds to be set aside to protect the liquidation preference of the Series A
Preferred Stock, although such liquidation preference will be substantially in
excess of the par value of such shares of Series A Preferred Stock.
VOTING RIGHTS
The holders of Series A Preferred Stock, except as otherwise required under
Delaware law or as provided in the Certificate of Designation, shall not be
entitled or permitted to vote on any matter required or permitted to be voted
upon by the stockholders of the Company.
The Certificate of Designation will provide that if (i) after September 1,
2003, dividends on the Series A Preferred Stock are in arrears and unpaid for
six or more dividend periods (whether or not consecutive); (ii) the Company
fails to redeem the Series A Preferred Stock on September 1, 2009, or fails to
otherwise discharge any redemption obligation with respect to the Series A
Preferred Stock; (iii) the Company fails to make an Offer to Purchase if such
offer is required by the
81
87
provisions of the covenant described under "-- Certain Covenants -- Change of
Control", (iv) a breach or violation of any of the other provisions described
under the caption "-- Certain Covenants" occurs and the breach or violation
continues for a period of 60 days or more after the Company receives notice
thereof specifying the default from the holders of at least 25% of the shares of
Series A Preferred Stock then outstanding; or (v) the Company fails to pay at
final maturity (giving effect to any applicable grace period) the principal
amount of any Debt of the Company or any Significant Subsidiary or the final
maturity of any such Debt is accelerated because of a default and the total
amount of such Debt unpaid or accelerated exceeds $10 million and such
nonpayment continues, or such acceleration is not rescinded or waived, within 10
days, then the holders of the outstanding shares of Series A Preferred Stock,
voting together as a single class, will be entitled to elect to serve on the
Board of Directors the lesser of (x) two additional members to the Board of
Directors or (y) that number of directors constituting 25% of the members of the
Board of Directors, and the number of members of the Board of Directors will be
immediately and automatically increased by such number. Such voting rights of
the Series A Preferred Stock will continue until such time as, in the case of a
dividend default, all dividends in arrears on the Series A Preferred Stock are
paid in full in cash (or, if prior to September 1, 2003, in shares of Series A
Preferred Stock) and, in all other cases, any failure, breach or default giving
rise to such voting rights is remedied or waived by the holders of a majority of
the shares of Series A Preferred Stock then outstanding, at which time the term
of any directors elected pursuant to the provisions of this paragraph (subject
to the right of holders of any other preferred stock to elect such directors)
shall terminate. Each such event described in clauses (i) through (v) above is
referred to herein as a "Voting Rights Triggering Event".
The Certificate of Designation also will provide that the Company will not
authorize any class of Senior Stock without the affirmative vote or consent of
holders of a majority of the shares of Series A Preferred Stock then
outstanding, voting or consenting, as the case may be, as one class. In
addition, the Certificate of Designation will provide that the Company may not
authorize the issuance of any additional shares of Series A Preferred Stock
without the affirmative vote or consent of the holders of a majority of the then
outstanding shares of Series A Preferred Stock, voting or consenting, as the
case may be, as one class. The Certificate of Designation will also provide
that, except as set forth above, (a) the creation, authorization or issuance of
any shares of Junior Stock or Parity Stock, including the designation of a
series thereof within the existing class of Series A Preferred Stock, or (b) the
increase or decrease in the amount of authorized Capital Stock of any class,
including any preferred stock, shall not require the consent of the holders of
Series A Preferred Stock and shall not be deemed to affect adversely the rights,
preferences, privileges or voting rights of shares of Series A Preferred Stock.
REGISTRATION COVENANT
Under the Registration Agreement, the Company is required to use its
reasonable best efforts to cause a registration statement under the Securities
Act relating to a shelf registration of the Preferred Shares for resale by the
Selling Stockholders (the "Resale Registration") to become effective and to
remain effective for a period of up to two years. The Company will provide to
the Selling Stockholders copies of this Prospectus, which is a part of the
registration statement filed in connection with the Resale Registration, notify
such Holders when the Resale Registration for the Preferred Shares has become
effective and take certain other actions as are required to permit unrestricted
resales of the Preferred Shares. Use of the Resale Registration registration
statement by Selling Stockholders will be subject to certain Company "black-out"
rights and customary information delivery requirements. A Selling Stockholder of
Preferred Shares that sells such Preferred Shares pursuant to the Resale
Registration generally is required to be named as a selling securityholder in
the Prospectus and to deliver a Prospectus to purchasers, will be subject to
certain of the civil liability provisions under the Securities Act in connection
with such sales and will be bound by the provisions of the Registration
Agreement that are applicable to such Selling Stockholder (including certain
indemnification obligations).
82
88
In the event that (i) the Resale Registration has not become effective
within 120 days following the filing thereof or (ii) the Resale Registration is
filed and declared effective but shall thereafter cease to be effective (except
as specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective (any such event
referred to in clauses (i) and (ii), a "Registration Default"), then dividends
will accumulate (in addition to the stated dividend on the Series A Preferred
Stock) at the rate of 0.5% per annum on the Specified Amount, for the period
from the occurrence of the Registration Default until such time as no
Registration Default is in effect. Such additional dividends (the "Special
Dividends") will be payable in cash on each regular dividend payment date. For
each 90-day period that the Registration Default continues, the per annum rate
of such Special Dividends will increase by an additional 0.25%, provided that
such rate shall in no event exceed 1.0% per annum in the aggregate. Special
Dividends, if any, will be computed on the basis of a 365 or 366 day year, as
the case may be, and the number of days actually elapsed.
The summary herein of the material provisions of the Registration Agreement
is qualified by reference to the full provisions of the Registration Agreement,
a copy of which is available upon request to the Company.
COVENANTS
The Certificate of Designation contains, among others, the following
covenants:
LIMITATION ON DEBT
(a) The Company may not, and may not permit any Restricted Subsidiary of
the Company to, Incur any Debt unless the ratio of (i) the aggregate
consolidated principal amount of Debt of the Company and its Restricted
Subsidiaries outstanding as of the most recent available quarterly or annual
balance sheet, after giving pro forma effect to the Incurrence of such Debt and
any other Debt Incurred since such balance sheet date and the receipt and
application of the proceeds thereof to (ii) Consolidated Cash Flow Available for
Fixed Charges for the four full fiscal quarters next preceding the Incurrence of
such Debt for which consolidated financial statements are available, determined
on a pro forma basis as if any such Debt had been Incurred at the beginning of
such four fiscal quarters, would be less than 7.0 to 1 for such four-quarter
periods ending on or prior to September 1, 2000, and 5.0 to 1 for such periods
ending thereafter.
(b) Notwithstanding the foregoing paragraph (a), the Company and any
Restricted Subsidiary (except as specified below) may incur any or all of the
following:
(i) Debt outstanding on the Issue Date;
(ii) Debt under any Bank Credit Agreement;
(iii) Purchase Money Debt Incurred to finance the construction,
acquisition, development, design, installation, integration, transportation
or improvement of Telecommunications Assets which, together with any other
outstanding Debt Incurred pursuant to this clause (iii) and any Debt
Incurred pursuant to clause (vi) of this paragraph (b) in respect of Debt
Incurred pursuant to this clause (iii), has an aggregate principal amount
at the time of Incurrence, not in excess of $100 million at any time
outstanding;
(iv) Senior Notes the offering of which, together with any other
outstanding Debt Incurred pursuant to this clause (iv), resulted in net
proceeds (excluding underwriting or other placement fees and proceeds
placed in escrow at the closing thereof pursuant to the terms of such
offering) to the Company, not in excess of $100 million;
(v) Debt owed by the Company to any Restricted Subsidiary of the
Company or Debt owed by a Restricted Subsidiary of the Company to the
Company or a Restricted Subsidiary of the Company; provided, however, that
upon either (x) the transfer or other disposition by such Restricted
Subsidiary or the Company of any Debt so permitted to a Person other than
the
83
89
Company or another Restricted Subsidiary of the Company or (y) the issuance
(other than directors' qualifying shares), sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of such Restricted Subsidiary to a Person other than the Company or
another such Restricted Subsidiary, the provisions of this clause (v) shall
no longer be applicable to such Debt and such Debt shall be deemed to have
been Incurred at the time of such transfer or other disposition;
(vi) Debt Incurred to renew, extend, refinance or refund (each, a
"refinancing") (A) Debt outstanding on the Issue Date, (B) Debt Incurred
pursuant to paragraph (a) of this covenant or (C) Debt Incurred pursuant to
clause (iii) of this paragraph (b), in each case in an aggregate principal
amount not to exceed the aggregate principal amount of and accrued interest
on the Debt so refinanced plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of the Debt
so refinanced or the amount of any premium reasonably determined by the
Company as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated repurchase, plus the amount of expenses of
the Company incurred in connection with such refinancing; provided,
however, that the refinancing Debt by its terms, or by the terms of any
agreement or instrument pursuant to which such Debt is issued, (x) does not
provide for payments of principal of such Debt at the stated maturity
thereof or by way of a sinking fund applicable thereto or by way of any
mandatory redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is
contingent upon events or circumstances, but excluding any retirement
required by virtue of acceleration of such Debt upon any event of default
thereunder), in each case prior to the time the same are required by the
terms of the Debt being refinanced and (y) does not permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such debt at the option of the holder thereof prior to the
final stated maturity of the Debt being refinanced, other than a redemption
or other retirement at the option of the holder of such Debt (including
pursuant to an offer to purchase made by the Company) which is conditioned
upon a change substantially similar to those described under "-- Change of
Control" or which is pursuant to provisions substantially similar to those
in the covenant described under "-- Limitation on Asset Dispositions";
(vii) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(viii) Debt consisting of performance and other similar bonds and
reimbursement obligations Incurred in the ordinary course of business
securing the performance of contractual, franchise or license obligations
of the Company or a Restricted Subsidiary, or in respect of a letter of
credit obtained to secure such performance;
(ix) Debt of the Company to Robert T. Hale, Jr. in an original
principal amount at the time of issuance not to exceed $2 million;
provided, however, that no payment of principal on such Debt may be made
prior to the redemption of the Series A Preferred Stock and the payment in
full of all accumulated dividends on the Series A Preferred Stock; and
(x) Debt of the Company or any Restricted Subsidiary not otherwise
permitted to be Incurred pursuant to clauses (i) through (viii) above,
which, together with any other outstanding Debt Incurred pursuant to this
clause (x), has an aggregate principal amount or, in the case of Debt
issued at a discount, an accreted amount (determined in accordance with
generally accepted accounting principles) at the time of Incurrence, not in
excess of $10 million at any time outstanding.
Notwithstanding any other provision of this "Limitation on Debt" covenant,
the maximum amount of Debt that the Company or a Restricted Subsidiary may Incur
pursuant to this "Limitation on Debt" covenant shall not be deemed to be
exceeded, with respect to any outstanding Debt, due solely to the result of
fluctuations in exchange rates of currencies.
84
90
For purposes of determining compliance with this "Limitation on Debt"
covenant, in the event that an item of Debt meets the criteria of more than one
of the types of Debt the Company is permitted to incur pursuant to the foregoing
clauses (i) through (x), the Company shall have the right, in its sole
discretion, to classify such item of Debt and shall only be required to include
the amount and type of such Debt under the clause permitting the Debt as so
classified. For purposes of determining any particular amount of Debt under such
covenant, Guarantees or Liens with respect to letters of credit supporting Debt
otherwise included in the determination of a particular amount shall not be
included.
LIMITATION ON RESTRICTED PAYMENTS
The Company (i) may not, directly or indirectly, declare or pay any
dividend, or make any distribution, in respect of any Junior Stock or to the
holders thereof (in their capacity as such), excluding any dividends or
distributions payable solely in shares of Junior Stock (other than Disqualified
Stock) or in options, warrants or other rights to acquire Junior Stock (other
than Disqualified Stock); (ii) may not, and may not permit any Restricted
Subsidiary to, purchase, redeem, or otherwise retire or acquire for value (a)
any Junior Stock of the Company or any Related Person of the Company or (b) any
options, warrants or rights to purchase or acquire shares of Junior Stock of the
Company or any Related Person of the Company or any securities convertible or
exchangeable into shares of Capital Stock of the Company or any Related Person
of the Company; and (iii) may not make, or permit any Restricted Subsidiary to
make, any Investment in, or payment on a Guarantee of any obligation of, any
Person, other than the Company or a Restricted Subsidiary of the Company, except
for Permitted Investments (each of clauses (i) through (iii) being a "Restricted
Payment") if: (1) any accrued and payable dividends (including dividends for the
then current dividend period) with respect to the Series A Preferred Stock or
any Parity Stock have not been paid (or deemed paid) in full and funds for such
payment have not been set apart shall have occurred and is continuing; or (2)
upon giving effect to such Restricted Payment, the Company could not Incur at
least $1.00 of additional Debt pursuant to the covenant described in paragraph
(a) of "-- Limitation on Debt" above; or (3) upon giving effect to such
Restricted Payment, the aggregate amount of all Restricted Payments from the
Issue Date exceeds the sum of: (a) (x) Consolidated Cash Flow Available for
Fixed Charges since the end of the last full fiscal quarter prior to the Issue
Date through the last day of the last full fiscal quarter ending immediately
preceding the date of such Restricted Payment (the "Calculation Period") minus
(y) 1.5 times Consolidated Interest Expense for the Calculation Period; plus (b)
the aggregate Net Cash Proceeds received by the Company from the issuance or
sale of its Junior Stock (other than Disqualified Stock) subsequent to the Issue
Date (other than an issuance or sale to a Subsidiary of the Company and other
than an issuance or sale to an employee stock ownership plan or a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees); plus (c) the amount by which Debt of the Company is reduced on the
Company's balance sheet upon the conversion or exchange (other than by a
Subsidiary of the Company) subsequent to the Issue Date of any Debt of the
Company convertible or exchangeable for Junior Stock (other than Disqualified
Stock) of the Company (less the amount of any cash, or the fair value of any
property, distributed by the Company upon such conversion or exchange); plus (d)
$5 million.
Notwithstanding the foregoing, (i) the Company may pay any dividend on
Capital Stock of any class within 60 days after the declaration thereof if, on
the date when the dividend was declared, the Company could have paid such
dividend in accordance with the foregoing provisions; (ii) the Company may
repurchase any shares of its Common Stock or options to acquire its Common Stock
from Persons who are currently or were formerly directors, officers or employees
of the Company or any Restricted Subsidiary, provided that the aggregate amount
of all such repurchases made pursuant to this clause (ii) shall not exceed (a)
$1 million in any calendar year and (b) $5 million in the aggregate; (iii) the
Company and its Restricted Subsidiaries may refinance any Debt otherwise
permitted by clause (vi) of paragraph (b) under "-- Limitation on Debt" above;
(iv) the Company
85
91
and its Restricted Subsidiaries may retire or repurchase any Junior Stock of the
Company or any Capital Stock of any Restricted Subsidiary of the Company in
exchange for, or out of the proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary of the Company) of, Junior Stock (other than
Disqualified Stock) of the Company; and (v) the Company may pay the dividend of
$5 million declared on July 15, 1998. If the Company makes a Restricted Payment
which, at the time of the making of such Restricted Payment, would in the good
faith determination of the Company be permitted under the Certificate of
Designation, such Restricted Payment shall be deemed to have been made in
compliance with the Certificate of Designation notwithstanding any subsequent
adjustments made in good faith to the Company financial statements affecting
Consolidated Cash Flow Available for Fixed Charges or Consolidated Interest
Expense for any period.
LIMITATION ON ASSET DISPOSITIONS
The Company may not, and may not permit any Restricted Subsidiary to, make
any Asset Disposition in one or more related transactions occurring within any
12-month period unless: (i) the Company or the Restricted Subsidiary, as the
case may be, receives consideration for such disposition at least equal to the
fair market value for the assets sold or disposed of as determined by management
of the Company in good faith, which determination shall be conclusive; (ii) at
least 75% of the consideration for such disposition consists of (1) cash or
readily marketable cash equivalents or the assumption of Debt of the Company or
of the Restricted Subsidiary and release from all liability on the Debt assumed;
(2) Telecommunications Assets; or (3) shares of publicly-traded Voting Stock of
any Person engaged in the Telecommunications Business in the United States; and
(iii) all Net Available Proceeds, less any amounts invested within 365 days of
such disposition in new Telecommunications Assets, are applied within 365 days
of such disposition (1) first, to the permanent repayment or reduction of Debt
(other than Disqualified Stock) of the Company or Debt (other than Disqualified
Stock) of a Restricted Subsidiary of the Company, to the extent permitted under
the terms thereof and (2) second, to the extent of remaining Net Available
Proceeds, to make an Offer to Purchase outstanding shares of Series A Preferred
Stock at 100% of the Specified Amount thereof plus, without duplication, an
amount in cash equal to all accumulated and unpaid dividends (including Special
Dividends and an amount in cash equal to a prorated dividend for any partial
dividend period), if any, to the date of purchase (subject to the rights of
holders of record on the relevant record date to receive dividends due on the
relevant dividend payment date), and, to the extent required by the terms
thereof, any other Parity Stock of the Company at a price no greater than 100%
of the liquidation preference thereof plus accumulated dividends to the date of
purchase. To the extent any Net Available Proceeds remain after such uses, the
Company and its Restricted Subsidiaries may use such amounts for any purposes
not prohibited by the Certificate of Designation. Notwithstanding the foregoing,
these provisions shall not apply to any Asset Disposition which constitutes a
transfer, conveyance, sale, lease or other disposition of all or substantially
all the Company's properties or assets as described under "-- Mergers,
Consolidations and Certain Sales of Assets".
TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS
The Company may not, and may not permit any Restricted Subsidiary of the
Company to, enter into any transaction (or series of related transactions) with
an Affiliate or Related Person of the Company (other than the Company or a
Restricted Subsidiary of the Company), including any Investment, either directly
or indirectly, unless such transaction is on terms no less favorable to the
Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate or
Related Person and is in the best interests of such Company or such Restricted
Subsidiary. For any transaction that involves in excess of $1 million but less
than or equal to $5 million, the Chief Executive Officer of the Company or a
majority of the disinterested members of the Board of Directors of the Company
shall determine that the transaction satisfies the above criteria. For any
transaction that involves in excess of $5 million but less than or equal to $10
million, a majority of the disinterested members of the Board of
86
92
Directors of the Company shall determine that the transaction satisfies the
above criteria. For any transaction that involves in excess of $10 million, the
Company shall also obtain an opinion from a nationally recognized investment
banking or accounting firm or another nationally recognized expert with
experience in appraising the terms and conditions, taken as a whole, of the type
of transaction (or series of related transactions) for which the opinion is
required stating that such transaction (or series of related transactions) is on
terms and conditions, taken as a whole, no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable arm's-
length transaction with an entity that is not an Affiliate or Related Person of
the Company, which opinion shall be available for inspection by holders of
Series A Preferred Stock at the Company's offices. This covenant shall not apply
to Investments by an Affiliate or a Related Person of the Company in the Capital
Stock (other than Disqualified Stock) of the Company or any Restricted
Subsidiary of the Company.
CHANGE OF CONTROL
The Certificate of Designation will provide that, within 30 days of the
occurrence of a Change of Control, the Company shall make an Offer to Purchase
all outstanding shares of Series A Preferred Stock at a purchase price equal to
101% of the liquidation preference thereof plus accumulated and unpaid
dividends, if any, to the date of purchase (subject to the rights of holders of
record on the relevant record date to receive dividends due on the relevant
dividend payment date).
A "Change of Control" will be deemed to have occurred at such time as
either (a) any Person or any Persons acting together (other than Permitted
Holders or an underwriter engaged in a firm commitment underwriting on behalf of
the Company) that would constitute a "group" (a "Group") for purposes of Section
13(d) of the Exchange Act, or any successor provision thereto, shall
beneficially own (within the meaning of Rule 13d-3 under the Exchange Act, or
any successor provision thereto) more than 50% of the aggregate voting power of
all classes of Voting Stock of the Company or (b) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (together with any new directors whose election by the
Board of Directors or whose nomination by the Board of Directors for election by
the Company's stockholders was approved by a vote of at least a majority of the
members of the Board of Directors then in office who either were members of the
Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office.
Except as described above with respect to a Change of Control, the
Certificate of Designation does not contain provisions that permit the Holders
of the Series A Preferred Stock to require that the Company repurchase or redeem
the Series A Preferred Stock in the event of a takeover, recapitalization or
similar restructuring.
The Company does not currently have adequate financial resources to effect
a repurchase of the Series A Preferred Stock upon a Change of Control and there
can be no assurance that the Company will have such resources in the future. The
inability of the Company to repurchase the Series A Preferred Stock upon
acceptance of the Offer to Purchase made following a Change of Control would
constitute a Voting Rights Triggering Event.
In addition, there may be restrictions contained in instruments evidencing
Debt incurred by the Company or its Restricted Subsidiaries permitted under the
Certificate of Designation which restrict or prohibit the ability of the Company
to effect any repurchase required under the Certificate of Designation in
connection with a Change of Control.
In the event that the Company makes an Offer to Purchase the Series A
Preferred Stock, the Company intends to comply with any applicable securities
laws and regulations, including any applicable requirements of Section 14(e) of,
and Rule 13e-4 and Rule 14e-1 under, the Exchange Act.
87
93
PROVISION OF FINANCIAL INFORMATION
The Company has agreed that, for so long as any Series A Preferred Stock
remains outstanding, it will furnish to the holders of the Series A Preferred
Stock and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act. In addition, prior to the effectiveness of the registration
statement of which this Prospectus forms a part, the Company will furnish to the
holders of the Series A Preferred Stock the quarterly and annual financial
statements and related notes and an accompanying Management's Discussion and
Analysis of Financial Condition and Results of Operations in the format that
would be required to be included in the Company's periodic reports filed with
the Commission if the Company were required to file such reports with the
Commission. The Company will furnish such information to the holders of the
Series A Preferred Stock within 15 days after the date on which the Company
would have been required to file the same with the Commission. Following the
effectiveness of the Resale Registration (or earlier if the Company becomes
obligated to file reports with the Commission), the Company will furnish to the
holders of the Series A Preferred Stock within 15 days after it files them with
the Commission copies of the annual and quarterly reports and the information,
documents, and other reports that the Company is required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act ("SEC
Reports"). In the event the Company shall cease to be required to file SEC
Reports pursuant to the Exchange Act, the Company will nevertheless continue to
file such reports with the Commission (unless the Commission will not accept
such a filing) and furnish such reports to the holders of Series A Preferred
Stock. The Company will make copies of the SEC Reports available to investors
who request them in writing.
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
The Company may not, in a single transaction or a series of related
transactions, (i) consolidate with or merge into any other Person or permit any
other Person to consolidate with or merge into the Company (other than the
consolidation or merger of a Restricted Subsidiary organized under the laws of a
State of the United States into the Company), or (ii) directly or indirectly,
transfer, sell, lease or otherwise dispose of all or substantially all its
assets (determined on a consolidated basis for the Company and its Restricted
Subsidiaries taken as a whole), unless: (1) in a transaction in which the
Company does not survive or in which the Company sells, leases or otherwise
disposes of all or substantially all its assets to any other Person, the
successor entity to the Company is organized under the laws of the United States
of America or any State thereof or the District of Columbia and the Series A
Preferred Stock shall be converted into or exchanged for and shall become shares
of such successor entity, having in respect of such successor entity the same
powers, preferences and relative participating, optional or other special rights
and the qualifications, limitations or restrictions thereon, that the Series A
Preferred Stock had immediately prior to such transaction; (2) immediately after
giving pro forma effect to such transaction as if such transaction had occurred
at the beginning of the last full fiscal quarter immediately prior to the
consummation of such transaction with the appropriate adjustments with respect
to the transaction being included in such pro forma calculation and treating any
Debt which becomes an obligation of the Company or a Subsidiary as a result of
such transaction as having been Incurred by the Company or such Subsidiary at
the time of the transaction, no Voting Rights Triggering Event, and no event
that after the giving of notice or lapse of time or both would become a Voting
Rights Triggering Event, shall have occurred and be continuing; (3) immediately
after giving effect to such transaction, the Consolidated Net Worth of the
Company (or the successor entity to the Company) is equal to or greater than
that of the Company immediately prior to the transaction; (4) immediately after
giving effect to such transaction, the Company (or the successor entity to the
Company) would be able to incur an additional $1.00 of Debt under paragraph (a)
of the Covenant described under "-- Limitation on Debt" above; and (5) the
Company has caused to be delivered to the holders of the Series A Preferred
Stock an Opinion of Counsel to the effect that the holders of the Series A
Preferred Stock will not recognize gain or loss for Federal income tax purposes
as a result of such transaction.
88
94
In the event of any transaction (other than a lease) described in and
complying with the immediately preceding paragraph in which the Company is not
the surviving person and the surviving person complies with clause (1) of the
preceding paragraph, such surviving person shall succeed to, and be substituted
for, and may exercise every right and power of, the Company, and the Company
will be discharged from its obligations under the Series A Preferred Stock and
the Certificate of Designation; provided that solely for the purpose of
calculating amounts described in clause (3) under the covenant described under
"Covenant -- Limitations on Restricted Payments", any such surviving person
shall only be deemed to have succeeded to and be substituted for the Company
with respect to the period subsequent to the effective time of such transaction,
and the Company (before giving effect to such transaction) shall be deemed to be
the "Company" for such purposes for all prior periods.
The meaning of the phrase "all or substantially all" as used above varies
according to the facts and circumstances of the subject transaction, has no
clearly established meaning under relevant law and is subject to judicial
interpretation. Accordingly, in certain circumstances, there may be a degree of
uncertainty in ascertaining whether a particular transaction would involve a
disposition of "all or substantially all" the assets of the Company, and
therefore it may be unclear whether the foregoing provisions are applicable.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Certificate of Designation. Reference is made to the Certificate of Designation
for the full definition of all such terms, as well as any other terms used
herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i) Debt of
any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Restricted Subsidiary of such specified Person
and (ii) Debt secured by a Lien encumbering any asset acquired by such specified
Person, which Debt, in each case, was not Incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Restricted Subsidiary ceases to be a Restricted Subsidiary of the specified
Person, but excluding a disposition by a Restricted Subsidiary of such Person to
such Person or a Wholly Owned Restricted Subsidiary of such Person or by such
Person to a Wholly Owned Restricted Subsidiary of such Person) of (i) shares of
Capital Stock or other ownership interests of a Restricted Subsidiary of such
Person (other than pursuant to a transaction in compliance with the covenant
described under "-- Mergers, Consolidations and Certain Sales of Assets" above),
(ii) substantially all the assets of such Person or any of its Restricted
Subsidiaries representing a division or line of business (other than as part of
a Permitted Investment) or (iii) other assets or rights of such Person or any of
its Restricted Subsidiaries other than (A) in the ordinary course of business,
(B) that constitute a Permitted Investment or a Restricted Payment which is
permitted under the covenant "-- Limitation on Restricted Payments" above or (C)
pursuant to or in connection with Receivables Sales under, or Debt in connection
with Permitted Receivables Facilities permitted to be Incurred pursuant to the
covenant described under "-- Limitation on Debt"; provided that a transaction
described in clauses (i), (ii) and (iii) shall constitute an Asset
89
95
Disposition only if the aggregate consideration for such transfer, conveyance,
sale, lease or other disposition is equal to $1 million or more in any 12-month
period.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the lesser of the amount of such penalty (in which case no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the rent which would otherwise
be required to be paid if such lease is not so terminated. "Attributable Value"
means, as to a Capital Lease Obligation, the principal amount thereof.
"Bank Credit Agreement" means any one or more (i) credit agreements (which
may include or consist of revolving credits) between the Company and/or any
Restricted Subsidiary of the Company and one or more banks or other financial
institutions providing financing for the business of the Company and its
Restricted Subsidiaries and (ii) Permitted Receivables Facilities, which credit
agreements and Permitted Receivables Facilities provide for borrowings by the
Company and its Restricted Subsidiaries in an aggregate principal amount
outstanding at any one time not to exceed $100 million, and any renewal,
extension, refinancing or refunding thereof in an amount which, together with
any principal amount remaining outstanding or available under all credit
agreements and Permitted Receivables Facilities of the Company and its
Restricted Subsidiaries, plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of any credit agreement
or Permitted Receivables Facility so refinanced plus the amount of expenses
incurred in connection with such refinancing, does not exceed the aggregate
principal amount outstanding or available under all such credit agreements and
Permitted Receivables Facilities of the Company and its Restricted Subsidiaries
immediately prior to such renewal, extension, refinancing or refunding.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with generally accepted accounting
principles (a "Capital Lease"). The stated maturity of such obligation shall be
the date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty. The principal amount of such obligation shall be
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Common Stock" of any Person means Capital Stock of such Person that is not
Disqualified Stock.
"Consolidated Cash Flow Available for Fixed Charges" for any period means
the Consolidated Net Income of the Company and its Restricted Subsidiaries for
such period increased by the sum of (i) Consolidated Interest Expense of the
Company and its Restricted Subsidiaries for such period,
90
96
plus (ii) Consolidated Income Tax Expense of the Company and its Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of the Company and its
Restricted Subsidiaries for such period plus (iv) any non-cash expense related
to the issuance to employees of the Company or any Restricted Subsidiary of the
Company of options to purchase Capital Stock of the Company or such Restricted
Subsidiary, plus (v) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Debt prior to its stated maturity;
provided, however, that there shall be excluded therefrom the Consolidated Cash
Flow Available for Fixed Charges (if positive) of any Restricted Subsidiary of
the Company (calculated separately for such Restricted Subsidiary in the same
manner as provided above for the Company) that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (excluding interest
income) of the Company and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees with respect to interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements;
(iv) dividends on Preferred Stock of the Company and its Restricted Subsidiaries
held by Persons other than the Company or a Wholly Owned Restricted Subsidiary
(other than dividends paid in shares of Preferred Stock that is not Disqualified
Stock) declared and paid or payable; (v) accrued Disqualified Stock dividends of
the Company and its Restricted Subsidiaries, whether or not declared or paid;
(vi) interest on Debt guaranteed by the Company and its Restricted Subsidiaries;
and (vii) the portion of any Capital Lease Obligation paid during such period
that is allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary of the Company in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of any
Person that is not a Restricted Subsidiary of the Company except to the extent
of the amount of dividends or other distributions actually paid to the Company
or a Restricted Subsidiary of the Company by such Person during such period, (c)
gains or losses on Asset Dispositions by the Company or its Restricted
Subsidiaries, (d) all extraordinary gains and extraordinary losses, (e) the
cumulative effect of changes in accounting principles, (f) non-cash gains or
losses resulting from fluctuations in currency exchange rates, (g) any non-cash
gain or loss realized on the termination of any employee pension benefit plan
and (h) the tax effect of any of the items described in clauses (a) through (g)
above; provided, further, that for purposes of any determination pursuant to the
covenant described under "Covenants -- Limitation on Restricted Payments," there
shall further be excluded therefrom the net income (but not net loss) of any
Restricted Subsidiary of the Company that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"Consolidated Net Worth" of any Person means the consolidated stockholders'
equity of such Person, determined on a consolidated basis in accordance with
generally accepted accounting principles, less amounts attributable to
Disqualified Stock of such Person.
91
97
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including any such obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (including securities repurchase agreements but
excluding trade accounts payable or accrued liabilities arising in the ordinary
course of business which are not overdue or which are being contested in good
faith), (v) every Capital Lease Obligation of such Person and all Attributable
Value in respect of a Sale and Leaseback Transaction of such Person, (vi) all
Receivables Sales of such Person, together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse, expenses or
other amounts in connection therewith, (vii) all obligations to redeem
Disqualified Stock issued by such Person, (viii) every obligation under Interest
Rate or Currency Protection Agreements of such Person and (ix) every obligation
of the type referred to in clauses (i) through (viii) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any Debt issued at a price that
is less than the principal amount at maturity thereof, shall be the amount of
the liability in respect thereof determined in accordance with generally
accepted accounting principles, (b) any Receivables Sale, shall be the amount of
the unrecovered capital or principal investment of the purchaser (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) thereof,
excluding amounts representative of yield or interest earned on such investment,
(c) any Disqualified Stock, shall be the maximum fixed redemption or repurchase
price in respect thereof, (d) any Capital Lease Obligation, shall be determined
in accordance with the definition thereof, or (e) any Permitted Interest Rate or
Currency Protection Agreement, shall be zero. In no event shall Debt include any
liability for taxes.
"Disqualified Stock" of any Person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of such Person, any
Restricted Subsidiary of such Person or the holder thereof, in whole or in part,
on or prior to the final Stated Maturity of the Series A Preferred Stock;
provided, however, that any Preferred Stock which would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require the Company to repurchase or redeem such Preferred Stock upon the
occurrence of a Change of Control occurring prior to September 1, 2009 shall not
constitute Disqualified Stock if the change of control provisions applicable to
such Preferred Stock are no more favorable to the holders of such Preferred
Stock than the provisions applicable to the Series A Preferred Stock contained
in the covenant described under "Covenants -- Change of Control" and such
Preferred Stock specifically provides that the Company will not repurchase or
redeem any such stock pursuant to such provisions prior to the Company's
repurchase of such number of shares of Series A Preferred Stock as are required
to be repurchased pursuant to the covenant described under "Covenants -- Change
of Control".
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-3" or higher, "A-" or higher or "A-" or
higher according to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Duff & Phelps Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act)), respectively, at the time as of which
any investment or rollover therein is made.
92
98
"Exchange Act" means the Securities Exchange Act of 1934, as amended (or
any successor act) and the rules and regulations thereunder.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have a remaining weighted average life to maturity of not more than one year
from the date of Investment therein.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing, or having the economic effect of guaranteeing, any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, and including, without limitation, any obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Debt, (ii) to purchase property, securities
or services for the purpose of assuring the holder of such Debt of the payment
of such Debt, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing"
and "Guarantor" shall have meanings correlative to the foregoing); provided,
however, that the Guarantee by any Person shall not include endorsements by such
Person for collection or deposit, in either case, in the ordinary course of
business.
"Hale Family" means collectively Robert T. Hale, Robert T. Hale, Jr. and
members of their immediate families; any of their respective spouses, estates,
lineal descendants, heirs, executors, personal representatives, administrators,
trusts for any of their benefit and charitable foundations to which shares of
the Company's Capital Stock beneficially owned by any of the foregoing have been
transferred; and any corporation or partnership, all of the Capital Stock of
which is owned by one or more of the foregoing Persons.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Subsidiaries or the recording, as required pursuant
to generally accepted accounting principles or otherwise, of any such Debt or
other obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing); provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt and that neither
the accrual of interest nor the accretion of original issue discount shall be
deemed an Incurrence of Debt; provided further, however, that the Company may
elect to treat all or any portion of revolving credit debt of the Company or a
Subsidiary as being Incurred from and after any date beginning the date the
revolving credit commitment is extended to the Company or a Subsidiary, by
memorializing such determination in the corporate records of the Company, and
any borrowings or reborrowings by the Company or a Subsidiary under such
commitment up to the amount of such commitment designated by the Company as
Incurred shall not be deemed to be new Incurrences of Debt by the Company or
such Subsidiary.
"Interest Rate or Currency Protection Agreement" of any Person means any
forward contract, futures contract, swap, option or other financial agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements) relating to, or the value of which is dependent upon, interest rates
or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution (by means of transfers of cash
or other property to others or payments for property or services for the account
or use of others, or otherwise) to, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Debt issued by, any
other Person, including any payment on a Guarantee of any obligation of such
other Person, but excluding any loan, advance or extension of credit to an
employee of the Company or any of its
93
99
Restricted Subsidiaries in the ordinary course of business, accounts receivables
and other commercially reasonable extensions of trade credit.
"Issue Date" means the first date on which any shares of Series A Preferred
Stock are issued pursuant to the Certificate of Designation.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Marketable Securities" means: (i) Government Securities; (ii) any time
deposit account, money market deposit and certificate of deposit maturing not
more than 270 days after the date of acquisition issued by, or time deposit of,
an Eligible Institution; (iii) commercial paper maturing not more than 270 days
after the date of acquisition issued by a corporation (other than an Affiliate
of the Company) with a rating, at the time as of which any investment therein is
made, of "P-1" or higher according to Moody's Investors Service, Inc., "A-1" or
higher according to Standard & Poor's Ratings Group or "A-1" or higher according
to Duff & Phelps Credit Rating Co. (or such similar equivalent rating by at
least one "nationally recognized statistical rating organization" (as defined in
Rule 436 under the Securities Act)); (iv) any banker's acceptances or money
market deposit accounts issued or offered by an Eligible Institution; (v)
repurchase obligations with a term of not more than 7 days for Government
Securities entered into with an Eligible Institution; and (vi) any fund
investing primarily in investments of the types described in clauses (i) through
(v) above.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses (including appraisals,
commissions, investment banking fees, and accounting, legal, broker and finder's
fees) Incurred and all Federal, state, provincial, foreign and local taxes
(including taxes payable upon payment or other distribution of funds from a
foreign subsidiary to the Company or another subsidiary of the Company) required
to be accrued as a liability as a consequence of such Asset Disposition, (ii)
all payments made by such Person or its Restricted Subsidiaries on any Debt
which is secured by such assets in accordance with the terms of any Lien upon or
with respect to such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all distributions
and other payments made to minority interest holders in Restricted Subsidiaries
of such Person or joint ventures as a result of such Asset Disposition, (iv)
appropriate amounts to be provided by such Person or any Restricted Subsidiary
thereof, as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, in each case as
determined by management of the Company, in its reasonable good faith judgment;
provided, however, that any reduction in such reserve within 12 months following
the consummation of such Asset Disposition will be treated for all purposes of
the Certificate of Designation as a new Asset Disposition at the time of such
reduction with Net Available Proceeds equal to the amount of such reduction, and
(v) any consideration for an Asset Disposition (which would otherwise constitute
Net Available Proceeds) that is required to be held in escrow pending
determination of whether a purchase price adjustment
94
100
will be made, but amounts under this clause (v) shall become Net Available
Proceeds at such time and to the extent such amounts are released to such
Person.
"Net Cash Proceeds" means the proceeds of any issuance or sale of Capital
Stock in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of attorney's fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
"Offer to Purchase" means a written offer (the "Offer") sent by the Company
by first-class mail, postage prepaid, to each holder at his address appearing in
the Stock Register on the date of the Offer offering to purchase up to the
number of shares of Series A Preferred Stock having the aggregate liquidation
preference specified in such Offer at the purchase price specified in such Offer
(as determined pursuant to the Certificate of Designation). Unless otherwise
required by applicable law, the Offer shall specify an expiration date (the
"Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of shares of Series A Preferred Stock within five Business Days
after the Expiration Date. The Offer shall contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Commission, (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of such financial statements referred to in clause (i) (including a
description of the events requiring the Company to make the Offer to Purchase),
(iii) if applicable, appropriate pro forma financial information concerning the
Offer to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to be
included therein). The Offer shall contain all instructions and materials
necessary to enable such holders to tender shares of Series A Preferred Stock
pursuant to the Offer to Purchase. The Offer shall also state:
a. the paragraph of the Certificate of Designation pursuant to which
the Offer to Purchase is being made;
b. the Expiration Date and the Purchase Date;
c. the aggregate number of shares of Series A Preferred Stock offered
to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been determined
pursuant to the Certificate of Designation provision requiring the Offer to
Purchase) (the "Purchase Amount");
d. the purchase price to be paid by the Company for the Specified
Amount of shares of Series A Preferred Stock accepted for payment (as
specified pursuant to the Certificate of Designation) (the "Purchase
Price");
e. that the holder may tender all or any portion of the shares of
Series A Preferred Stock registered in the name of such holder;
f. the place or places where shares of Series A Preferred Stock are to
be surrendered for tender pursuant to the Offer to Purchase;
95
101
g. that dividends on any shares of Series A Preferred Stock not
tendered or tendered but not purchased by the Company pursuant to the Offer
to Purchase will continue to accumulate;
h. that on the Purchase Date the Purchase Price will become due and
payable upon each share of Series A Preferred Stock being accepted for
payment pursuant to the Offer to Purchase and that dividends thereon shall
cease to accumulate on and after the Purchase Date;
i. that each holder electing to tender a share of Series A Preferred
Stock pursuant to the Offer to Purchase will be required to surrender such
share of Series A Preferred Stock at the place or places specified in the
Offer prior to the close of business on the Expiration Date (such share of
Series A Preferred Stock being, if the Company so requires, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company duly executed by, the holder thereof or his attorney duly
authorized in writing);
j. that holders will be entitled to withdraw all or any portion of
shares of Series A Preferred Stock tendered if the Company receives, not
later than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the holder, the
number of shares of Series A Preferred Stock the holder tendered, the
certificate number of the shares the holder tendered and a statement that
such holder is withdrawing all or a portion of his tender;
k. that (a) if shares of Series A Preferred Stock in an aggregate
number less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase all
such shares of Series A Preferred Stock and (b) if shares of Series A
Preferred Stock in an aggregate number in excess of the Purchase Amount are
tendered and not withdrawn pursuant to the Offer to Purchase, the Company
shall purchase shares of Series A Preferred Stock equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only whole shares shall be purchased); and
l. that in the case of any holder whose shares of Series A Preferred
Stock are purchased only in part, the Company shall return all such
unpurchased shares or execute and deliver to the holder of such shares
without service charge, new shares as requested by such holder, in an
aggregate liquidation preference equal to and in exchange for the
unpurchased portion of the shares so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Offer to Purchase.
"Permitted Holders" means the Hale Family.
"Permitted Interest Rate or Currency Protection Agreement" of any Person
means any Interest Rate or Currency Protection Agreement entered into with one
or more financial institutions in the ordinary course of business that is
designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Investment" means (i) any Investment in the Company or any
Restricted Subsidiary, (ii) any Investment in any Person as a result of which
such Person becomes a Wholly Owned Restricted Subsidiary, (iii) any Investment
in Marketable Securities, (iv) Investments in Permitted Interest Rate or
Currency Protection Agreements, (v) Investments made as a result of the receipt
of noncash consideration from an Asset Disposition that was made pursuant to and
in compliance with the covenant described under "Covenants -- Limitation on
Asset Dispositions" above, (vi) loans or advances to employees of the Company or
any Restricted Subsidiary that in the aggregate at any one time do not exceed $1
million, (vii) Strategic Investments in an amount not to exceed $5 million at
any one time outstanding and (viii) an amount equal to the sum of (a) $5 million
and (b) the
96
102
aggregate Net Cash Proceeds received by the Company from the sale of its Capital
Stock (other than Disqualified Stock) subsequent to the Issue Date (other than
an issuance or sale to a Subsidiary of the Company and other than an issuance or
sale to an employee stock ownership plan or a trust established by the Company
or any of its Subsidiaries for the benefit of their employees) to the extent
such Net Cash Proceeds have not been used pursuant to clause (3)(b) of the first
paragraph or clause (iv) of the second paragraph of the covenant described under
"-- Limitation on Restricted Payments" above.
"Permitted Receivables Facility" means a transaction pursuant to which any
Restricted Subsidiary transfers (pursuant to a sale, contribution to capital or
a combination thereof) to a Special Purpose Subsidiary Receivables and certain
related rights, and such Special Purpose Subsidiary securitizes such Receivables
and related rights pursuant to a loan agreement, receivables purchase agreement,
pooling and servicing agreement or similar contract with one or more commercial
paper conduits, banks, financial institutions or similar entities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Public Equity Offering" means an underwritten primary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act (other than a registration statement on Form S-8 or any
successor form).
"Purchase Money Debt" means (i) Acquired Debt Incurred in connection with
the acquisition of Telecommunications Assets and (ii) Debt of the Company or of
any Restricted Subsidiary of the Company (including, without limitation, Debt
represented by Capital Lease Obligations, mortgage financings and purchase money
obligations) Incurred for the purpose of financing all or any part of the cost
of construction, acquisition, development, design, installation, integration,
transportation or improvement by the Company or any Restricted Subsidiary of the
Company of any Telecommunications Assets of the Company or any Restricted
Subsidiary of the Company, and including any related notes, Guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as the same may be amended, supplemented, modified or restated from
time to time.
"Receivables" means receivables, chattel paper, instruments, documents or
intangibles evidencing or relating to the right to payment of money in respect
of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 10% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 10% or more of the
equity interest in such Person) or (b) 10% or more of the combined voting power
of the Voting Stock of such Person.
"Restricted Subsidiary" of the Company means any Subsidiary, whether
existing on or after the Issue Date, unless such Subsidiary is an Unrestricted
Subsidiary.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 365 days after the
later of the acquisition thereof or the completion of construction or
97
103
commencement of operation thereof to such lender or investor or to any person to
whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset. The stated maturity of such arrangement
shall be the date of the last payment of rent or any other amount due under such
arrangement prior to the first date on which such arrangement may be terminated
by the lessee without payment of a penalty.
"Senior Notes" means Debt of the Company having a maturity of at least six
years.
"Senior Notes Offering" means an offering (whether private or registered
under the Securities Act) of Senior Notes.
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act.
"Special Purpose Subsidiary" means a corporation, limited liability
company, partnership or business trust, all of the capital stock or other equity
interests therein are owned, directly or indirectly, by the Company or any
Wholly Owned Restricted Subsidiary, that has been established for the purpose
of, and whose activities are limited to, the consummation of Receivables Sales
and activities incidental thereto.
"Specified Amount" means, on any date with respect to any share of Series A
Preferred Stock, the sum of (i) the Liquidation Preference with respect to such
share and (ii) the Accumulated Dividends with respect to such share that are
added automatically to the Specified Amount of such share.
"Strategic Investment" means (a) Investments that the Board of Directors
has determined in good faith will enable the Company or any of its Wholly Owned
Restricted Subsidiaries to obtain additional business that it might not be able
to obtain without making such Investment and (b) Investments in entities, the
principal function of which is to perform research and development with respect
to products and services that may be useful in the Telecommunications Business;
provided that the Company or one of its Wholly Owned Restricted Subsidiaries is
entitled or otherwise reasonably expected to obtain rights to such products or
services as a result of such Investment.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Telecommunications Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or intended for
use in connection with a Telecommunications Business.
"Telecommunications Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, (ii) creating, developing or marketing
communications related network equipment, software and other devices for use in
a Telecommunication Business or (iii) evaluating, participating or pursuing any
other activity or opportunity that is primarily related to those identified in
(i) or (ii) above and shall, in any event, include all businesses in which the
Company or any of its Subsidiaries are engaged on the Issue Date; provided that
the determination of what constitutes a Telecommunications Business shall be
made in good faith by the Board of Directors of the Company, which determination
shall be conclusive.
"Unrestricted Subsidiary" means (1) any Subsidiary of the Company
designated as such by the Board of Directors of the Company as set forth below
where (a) neither the Company nor any of
98
104
its other Subsidiaries (other than another Unrestricted Subsidiary) (i) provides
credit support for, or Guarantee of, any Debt of such Subsidiary or any
Subsidiary of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Debt) or (ii) is directly or indirectly liable for
any Debt of such Subsidiary or any Subsidiary of such Subsidiary, and (b) no
default with respect to any Debt of such Subsidiary or any Subsidiary of such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Debt of the Company and its Restricted
Subsidiaries to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its final scheduled maturity and
(2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary to be an Unrestricted Subsidiary unless
such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any
property of, any other Subsidiary of the Company which is not a Subsidiary of
the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary;
provided that either (x) the Subsidiary to be so designated has total assets of
$1,000 or less or (y) immediately after giving effect to such designation, the
Company could incur at least $1.00 of additional Debt pursuant to paragraph (a)
under "Covenants -- Limitation on Debt" above; and provided further, that the
Company could make a Restricted Payment in an amount equal to the greater of the
fair market value and the book value of such Subsidiary pursuant to the covenant
described under "Covenants -- Limitation on Restricted Payments" and such amount
is thereafter treated as a Restricted Payment for the purpose of calculating the
aggregate amount available for Restricted Payments thereunder. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, provided that, immediately after giving effect to such designation,
the Company could incur at least $1.00 of additional Debt pursuant to paragraph
(a) under "Covenants -- Limitation on Debt" above.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person 99% or more of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
DESCRIPTION OF THE WARRANTS
The Series A Preferred Stock was initially issued as a part of a Unit
offering. Each Unit included 7.75 Initial Warrants and 15 Contingent Warrants.
The Warrants were issued pursuant to a Warrant Agreement dated as of September
3, 1998 (the "Warrant Agreement"), between the Company and American Stock
Transfer & Trust Company, as warrant agent (the "Warrant Agent"). The following
summary of the material provisions of the Warrant Agreement is qualified by
reference to all of the provisions of the Warrant Agreement, including the
definitions therein of certain terms.
GENERAL
Each Warrant, when exercised, will entitle the holder thereof to purchase
one share of common stock from the Company at a price (the "Exercise Price") of
$0.01 per share. The Exercise Price and the number of shares of common stock
issuable upon exercise of a Warrant are both subject to adjustment in certain
cases. See "-- Adjustments" below. The Initial Warrants will initially entitle
the holders thereof to acquire, in the aggregate, 310,000 shares of common
stock. The Contingent Warrants will initially entitle the holders thereof to
acquire, in the aggregate, 600,000 shares of common stock.
99
105
The Warrants may be exercised at any time on or after the Exercisability
Date; provided, however, that the Contingent Warrants shall not be exercisable
until the later of the Exercisability Date and the release of such Contingent
Warrants from escrow, as described below. "Exercisability Date" means the
earlier to occur of (i) the second anniversary of the Issue Date, and (ii) any
Exercise Event. "Exercise Event" means the date of the earliest of: (a) a Change
of Control (as defined under "Description of the Series A Preferred
Stock -- Certain Covenants -- Change of Control"); (b)(1) 180 days after an
Initial Public Offering or (2) upon the closing of an Initial Public Offering by
the Company but only in respect of Warrants required to be exercised in order to
permit the holder thereof to sell shares in such Initial Public Offering as
permitted under "-- Registration Rights;" (c) a consolidation, merger or
purchase of assets involving the Company or any of its Subsidiaries that results
in the common stock becoming subject to registration under the Exchange Act; or
(d) voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Company; provided, however, that holders of Warrants will be able
to exercise their Warrants only if a registration statement relating to the
Warrant Shares is effective or the exercise of such Warrants is exempt from the
registration requirements of the Securities Act, and such securities are
qualified for sale or exempt from qualification under the applicable securities
laws of the states or other jurisdictions in which such holders reside.
The Contingent Warrants are held in escrow pursuant to the terms of an
escrow agreement (the "Contingent Warrant Escrow Agreement"), between the
Company and American Stock Transfer & Trust Company, as escrow agent (the
"Contingent Warrant Escrow Agent"). On September 1 of each year prior to the
Expiration Date, commencing September 1, 1999, (each September 1, a "Contingent
Warrant Release Date"), pursuant to the Contingent Warrant Escrow Agreement, the
Contingent Warrant Escrow Agent will release the Applicable Percentage of the
Contingent Warrants and any other Contingent Warrant Escrow Property on a pro
rata basis (for purposes of which any shares of Series A Preferred Stock
redeemed or repurchased prior to such date by the Company shall be deemed to be
issued and outstanding and held by the Company) to the holders of the issued and
outstanding shares of Series A Preferred Stock on the immediately preceding
August 15 (each August 15, a "Contingent Warrant Release Record Date"). All
Contingent Warrants not released to such holders shall be returned to the
Company for cancelation.
Unless earlier exercised, the Warrants will expire on September 1, 2009
(the "Expiration Date"); provided, however, that the Company shall act in good
faith to permit the prompt exercise of Contingent Warrants, if any, released
from escrow on the Expiration Date. The Company will give notice of expiration
not less than 90 nor more than 120 days prior to the Expiration Date to the
registered holders of the then outstanding Warrants. If the Company fails to
give such notice, the Warrants will nevertheless expire and become void on the
Expiration Date. AS OF THE DATE OF EFFECTIVENESS OF THE REGISTRATION STATEMENT
OF WHICH THIS PROSPECTUS IS A PART, THE INITIAL WARRANTS WILL TRADE SEPARATELY
FROM THE SERIES A PREFERRED STOCK. CONTINGENT WARRANTS WILL NOT TRADE SEPARATELY
FROM THE SERIES A PREFERRED STOCK UNTIL THE DATE ON WHICH THEY ARE RELEASED FROM
ESCROW.
At the Company's option, fractional shares of common stock may not be
issued upon exercise of the Warrants. If any fraction of a share of common stock
would, except for the foregoing provision, be issuable upon the exercise of any
such Warrant (or specified portion thereof), the Company will pay an amount in
cash equal to the Current Market Value per share of common stock, as determined
on the day immediately preceding the date the Warrant is presented for exercise,
multiplied by such fraction, computed to the nearest whole cent.
Certificates for Warrants will be issued in fully registered form only. See
"Form, Denomination, Book-Entry Procedures and Transfer". No service charge will
be made for registration of transfer or exchange upon surrender of any Warrant
Certificate at the office of the Warrant Agent maintained for that purpose. The
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates.
100
106
In the event a bankruptcy, reorganization or similar proceeding is
commenced by or against the Company, a bankruptcy court may hold that
unexercised Warrants are executory contracts which may be subject to rejection
by the Company with approval of the bankruptcy court. As a result, even if
sufficient funds are available, holders of the Warrants may not be entitled to
receive any consideration or may receive an amount less than they would be
entitled to if they had exercised their Warrants prior to the commencement of
any such bankruptcy, reorganization or similar proceeding.
CERTAIN TERMS
EXERCISE
In order to exercise all or any of the Warrants, the holder thereof is
required to surrender to the Warrant Agent the related Warrant Certificate and
pay in full the Exercise Price for each share of Common Stock or other
securities issuable upon exercise of such Warrants. The Exercise Price may be
paid (i) in cash or by certified or official bank check or by wire transfer to
an account designated by the Company for such purpose or (ii) at any time
following registration of the Common Stock under the Exchange Act, without the
payment of cash, by reducing the number of shares of Common Stock that would be
obtainable upon the exercise of a Warrant and payment of the Exercise Price in
cash so as to yield a number of shares of common stock upon the exercise of such
Warrant equal to the product of (a) the number of shares of common stock for
which such Warrant is exercisable as of the date of exercise (if the Exercise
Price were being paid in cash) and (b) the Cashless Exercise Ratio (the
"Cashless Exercise"). The "Cashless Exercise Ratio" shall equal a fraction, the
numerator of which is the excess of the Current Market Value per share of common
stock on the Exercise Date over the Exercise Price per share as of the Exercise
Date and the denominator of which is the Current Market Price per share of the
common stock on the Exercise Date. Upon surrender of a Warrant Certificate
representing more than one Warrant in connection with the holder's option to
elect a Cashless Exercise, the number of shares of common stock deliverable upon
a Cashless Exercise shall be equal to the number of shares of common stock
issuable upon the exercise of Warrants that the holder specifies are to be
exercised pursuant to a Cashless Exercise multiplied by the Cashless Exercise
Ratio. All provisions of the Warrant Agreement shall be applicable with respect
to a surrender of a Warrant Certificate pursuant to a Cashless Exercise for less
than the full number of Warrants represented thereby. Upon the exercise of
Warrants in accordance with the Warrant Agreement, the Warrant Agent will cause
the Company to transfer promptly to or upon the written order of the holder of
such Warrant Certificate appropriate evidence of ownership of any shares of
common stock or other securities or property to which it is entitled, registered
or otherwise to the person or persons entitled to receive the same and an amount
in cash, in lieu of any fractional shares, if any. All shares of common stock or
other securities issuable by the Company upon the exercise of the Warrants will
be validly issued, fully paid and nonassessable.
NO RIGHTS AS STOCKHOLDERS
The holders of unexercised Warrants are not entitled, by virtue of being
such holders, to receive dividends, to vote, to consent, to exercise any
preemptive rights or to receive notice as stockholders of the Company in respect
of any stockholders' meeting for the election of directors of the Company or any
other purpose, or to exercise any other rights whatsoever as stockholders of the
Company.
MERGERS, CONSOLIDATIONS, ETC.
In the event that the Company consolidates with, merges with or into, or
sells all or substantially all its assets to, another Person, each Warrant
thereafter will entitle the holder thereof to receive upon exercise thereof, per
share of Common Stock for which such Warrant is exercisable, the number of
shares of common stock or other securities or property which the holder of a
share of common stock is entitled to receive upon completion of such
consolidation, merger or sale of
101
107
assets. However, if (i) the Company consolidates with, merges with or into, or
sells all or substantially all its assets to, another Person and, in connection
therewith, the consideration payable to the holders of common stock in exchange
for their shares is payable solely in cash or (ii) there is a dissolution,
liquidation or winding-up of the Company, then the holders of the Warrants will
be entitled to receive distributions on an equal basis with the holders of
common stock or other securities issuable upon exercise of the Warrants, as if
the Warrants had been exercised immediately prior to such event, less the
Exercise Price. Upon receipt of such payment, if any, the Warrants will expire
and the rights of the holders thereof will cease. In the case of any such
merger, consolidation or sale of assets, the surviving or acquiring person and,
in the event of any dissolution, liquidation or winding-up of the Company, the
Company, must deposit promptly with the Warrant Agent the funds (or other
consideration), if any, required to pay the holders of the Warrants. After such
funds and the surrendered Warrant Certificates are received, the Warrant Agent
is required to deliver a check in such amount as is appropriate (or, in the case
of consideration other than cash, such other consideration as is appropriate) to
such Persons as it may be directed in writing by the holders surrendering such
Warrants.
ADJUSTMENTS
The number of shares of common stock issuable upon the exercise of the
Warrants and the Exercise Price will be subject to adjustment in certain events
including (i) the payment by the Company of dividends (or other distributions)
on the common stock of the Company payable in shares of common stock or other
shares of the Company's capital stock, (ii) subdivisions, combinations and
certain reclassifications to the common stock, (iii) the distribution to all
holders of the common stock of any of the Company's assets, debt securities or
any options, warrants or rights to purchase securities (excluding those options,
warrants and rights referred to in clause (iv) and cash dividends and other cash
distributions from current or retained earnings or, in respect of any period
during which the Company was a subchapter S corporation for U.S. federal income
tax purposes, the payment of dividends in respect of common stockholders'
federal and state income tax liability and related tax reporting preparation
expenses), (iv) the issuance of rights, options or warrants entitling the
holders thereof to subscribe for shares of common stock, or of securities
convertible into or exchangeable or exercisable for shares of common stock, for
a consideration per share that is less than the Current Market Value per share
of the common stock at the time of issuance of such rights, options or warrants
or convertible or exchangeable securities, (v) the issuance of shares of common
stock for a consideration per share which is less than the Current Market Value
per share of the common stock (other than issuances of common stock in respect
of rights, options or warrants or convertible or exchangeable securities the
issuance of which either did not require or otherwise result in an adjustment to
the Warrants pursuant to clause (iv)), and (vi) the purchase of shares of common
stock pursuant to a tender or exchange offer made by the Company or any
subsidiary thereof at a price greater than the Current Market Value of the
common stock at the time such tender or exchange offer expires. No adjustment to
the number of shares of common stock issuable upon the exercise of the Warrants
and the Exercise Price will be required in certain events including (i) the
issuance of common stock or warrants to purchase common stock in connection with
any debt or equity financing from or with one or more unaffiliated third parties
approved by the Board of Directors (including upon the exercise of any warrants
issued in connection with such financings), (ii) the issuance of shares of
common stock (including upon exercise of options) pursuant to the terms of and
in order to give effect to the Stock Incentive Plan, the Director Plan or issued
to directors, advisors, employees or consultants of the Company pursuant to a
stock option plan, employee stock purchase plan, restricted stock plan or other
agreement approved by the Board of Directors, (iii) the issuance of shares of
common stock in connection with acquisitions of assets or securities of another
Person (other than issuances to affiliates of the Company), and (iv) the
issuance of shares of common stock upon exercise of the Initial Warrants and the
Contingent Warrants.
102
108
In the event of a distribution to holders of common stock which results in
an adjustment to the number of shares of Common Stock or other consideration for
which a Warrant may be exercised, the holders of the Warrants may, in certain
circumstances, be deemed to have received a distribution subject to United
States Federal income tax as a dividend. See "Federal Income Tax
Considerations".
No adjustment in the Exercise Price will be required unless such adjustment
would require an increase or decrease of at least one percent in the Exercise
Price; provided, however, that any adjustment which is not made as a result of
this paragraph will be carried forward and taken into account in any subsequent
adjustment.
AMENDMENT
From time to time, the Company and the Warrant Agent, without the consent
of the holders of the Warrants, may amend or supplement the Warrant Agreement
for certain purposes, including curing defects or inconsistencies or making any
change that does not adversely affect the rights of any holder. Any amendment or
supplement to the Warrant Agreement that has an adverse effect on the interests
of the holders of the Warrants shall require the written consent of the holders
of a majority of the then outstanding Warrants. The consent of each holder of
the Warrants affected shall be required for any amendment pursuant to which the
Exercise Price would be increased or the number of shares of Common Stock
issuable upon exercise of Warrants would be decreased (other than pursuant to
adjustments provided in the Warrant Agreement).
REGISTRATION RIGHTS
Whenever the Company proposes to effect a Public Offering, the Company
must, not later than the date of the initial filing of a registration statement
pertaining thereto, provide written notice thereof to the holders of the
Warrants and the Warrant Shares. Each such holder will have the right, within 20
days after receipt of such notice, to request (which request will indicate the
intended method of distribution) that the Company include such holder's Warrant
Shares for sale pursuant to such registration statement.
The Company will include in any Public Offering all the Warrant Shares for
which it receives notice pursuant to the preceding paragraph, unless the
managing underwriter for such Public Offering (the "Managing Underwriter")
determines that, in its opinion, the number of Warrant Shares that the holders
of Warrants and Warrant Shares (the "Requesting Holders") have requested to be
sold in such Public Offering, plus the total number of shares of such common
stock that the Company and any other selling stockholders entitled to sell
shares in such Public Offering propose to sell in such Public Offering, exceed
the maximum number of shares that may be distributed without materially
adversely affecting the price, timing or distribution of the shares to be sold
by the Company. In such event, the Company will be required to include in such
Public Offering only that number of shares which the Managing Underwriter
believes may be sold without causing such adverse effect in the following order:
(i) all the shares that the Company proposes to sell in such Public Offering,
(ii) all the shares that are proposed to be sold by any holder of common stock
who is exercising a demand registration right existing on the Issue Date, if
such public offering is being made pursuant to such demand and (iii) shares of
the Requesting Holders and all other shares that are proposed to be sold by any
holder of common stock on a pro rata basis (based on the number of shares
proposed to be sold by each Requesting Holder) in an aggregate number which is
equal to the difference between the maximum number of shares that may be
distributed in such Public Offering as determined by the Managing Underwriter
and the number of shares to be sold in such Public Offering pursuant to clauses
(i) and (ii) above. The Company will have the right to postpone or withdraw any
registration statement prior to the effective date without obligation to any
Requesting Holder.
103
109
In the event that the shares of the Requesting Holders are excluded from a
Public Offering as a result of the preceding sentence, holders of more than 50%
of the Warrant Shares (whether outstanding or subject to issuance upon exercise
of outstanding Warrants) that have not been sold pursuant to a registration
statement may request, at any time at least 180 days after the closing of such
Public Offering, the Company to register, on one occasion only, all their
Warrant Shares (and those of any other holder of Warrant Shares that have not
been sold pursuant to a registration statement) in connection with a Public
Offering. The demand registration will be subject to certain Company "black-out"
rights and customary information delivery requirements.
The Warrant Agreement will include customary covenants with respect to the
registration rights of the holders on the part of the Company and will provide
that the Company will indemnify the holders included in any registration
statement and any underwriter with respect thereto against certain liabilities.
The Warrant Agreement will require that holders of Warrants and Warrant Shares
agree that they will not, other than as part of such offering or with the
consent of the Managing Underwriter, transfer Warrants or Warrant Shares during
the 180 days following the closing of the first Public Offering of the common
stock.
CERTAIN DEFINITIONS
The Warrant Agreement contains, among others, the following definitions:
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Percentage" means, for each date set forth below, the
percentage set forth below:
CONTINGENT WARRANT APPLICABLE
RELEASE DATE PERCENTAGE
- ------------------ ----------
September 1, 1999 9.09%
September 1, 2000 10.00%
September 1, 2001 11.11%
September 1, 2002 12.50%
September 1, 2003 14.28%
September 1, 2004 16.67%
September 1, 2005 20.00%
September 1, 2006 25.00%
September 1, 2007 33.33%
September 1, 2008 50.00%
September 1, 2009 100.00%
"Current Market Value" per share of common stock or any other security at
any date means (i) if the security is not registered under the Exchange Act, (a)
the value of the security, determined in good faith by the Board of Directors of
the Company and certified in a board resolution, based on the most recently
completed arm's-length transaction between the Company and a Person other than
an Affiliate of the Company, the closing of which shall have occurred on such
date or within the six-month period preceding such date, or (b) if no such
transaction shall have occurred on such date or within such six-month period,
the value of the security as determined by a nationally recognized investment
banking firm or (ii) if the security is registered under the Exchange Act, the
average of the daily closing bid prices (or the equivalent in an
over-the-counter market) for each
104
110
Business Day during the period commencing 15 Business Days before such date and
ending on the date one day prior to such date, or if the security has been
registered under the Exchange Act for less than 15 consecutive Business Days
before such date, then the average of the daily closing bid prices (or such
equivalent) for all of the Business Days before such date for which daily
closing bid prices are available; provided, however, that if the closing bid
price is not determinable for at least ten Business Days in such period, the
"Current Market Value" of the security shall be determined as if the security
were not registered under the Exchange Act.
"Initial Public Offering" means the first time a registration statement
filed under the Securities Act respecting an offering, whether primary or
secondary, of common stock (or securities convertible into, or exchangeable or
exercisable for, common stock or rights to acquire common stock or such
securities, other than the Warrants) which is underwritten on a firmly committed
or best efforts basis, is declared effective and the securities so registered
are issued and sold.
"Issue Date" means the date on which the Initial Warrants are initially
issued.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Public Offering" means an underwritten primary public offering of Common
Stock of the Company pursuant to an effective registration statement under the
Securities Act (other than a registration statement on Form S-8 or any successor
form).
"Warrant Certificates" mean the registered certificates (including the
Global Warrants (as defined)) issued by the Company under the Warrant Agreement
representing the Warrants.
"Warrant Shares" means the shares of common stock (or any other securities)
for which Warrants are exercisable or which have been issued upon exercise of
Warrants.
FEDERAL INCOME TAX CONSIDERATIONS
This discussion is the opinion of the Company's legal counsel, Hale and
Dorr LLP ("legal counsel"), regarding the U.S. Federal income tax consequences
that are material to a U.S. Holder (as defined below) of Series A Preferred
Stock, which are identified below, except where the disclosure below expressly
states that legal counsel is unable to render an opinion. The tax consequences
set forth below apply only to persons that hold shares of Series A Preferred
Stock as capital assets within the meaning of Section 1221 of the Code. The tax
consequences set forth below may differ for a particular holder subject to
special treatment under certain U.S. Federal income tax laws, such as dealers in
securities or foreign currency, banks, trusts, insurance companies, tax-exempt
organizations, persons who are not U.S. Holders (as defined below), persons that
hold Series A Preferred Stock as part of a straddle, hedge, synthetic security,
constructive sale or conversion transaction, persons that have a functional
currency other than the U.S. dollar and investors in pass-through entities.
The opinions set forth below are based on legal counsel's interpretation of
the Code, the final, temporary and proposed Treasury regulations promulgated
thereunder, administrative pronouncements and judicial decisions, all as in
effect on the date hereof and all of which are subject to change, possibly with
retroactive effect. The Company has not requested, and will not request, a
ruling from the U.S. Internal Revenue Service (the "IRS") with respect to any of
the U.S. Federal income tax consequences described below. As a result, there can
be no assurance that the IRS will not disagree with or challenge any of the
conclusions set forth herein.
105
111
LOSS OF S CORPORATION STATUS
The status of the Company as an "S Corporation" under Subchapter S of the
Code terminated as a result of the issuance of the Units in the Initial
Offering. As a result, the Company became taxable under the Code on its taxable
income at the entity level as a regular "C corporation", generally at the rate
of 35%. Additionally, its income, losses and other tax items no longer "flow
through" to its shareholders. Instead, shareholders are taxed on the Company's
distributions in the manner described below. The Company also became subject to
entity-level taxation in many states that is less favorable than the state tax
treatment afforded S corporations.
U.S. HOLDERS
The tax consequences set forth below apply only to U.S. Holders that
purchase Preferred Shares from Selling Stockholders. For these purposes, "U.S.
Holder" means
- an individual who is a citizen or resident of the United States,
- a corporation or other entity taxable as a corporation created or
organized under the laws of the United States or any political
subdivision thereof or therein,
- an estate the income of which is subject to U.S. Federal income tax
regardless of its source,
- a trust if (a) a court within the United States is able to exercise
primary supervision over the administration of the trust and (b) one or
more United States trustees have the authority to control all substantial
decisions of the trust or
- any person or entity whose worldwide income or gain is otherwise subject
to U.S. federal income tax on a net income basis.
CLASSIFICATION OF SERIES A PREFERRED STOCK
Classification as Equity
Classifying an instrument as debt or equity under the Code requires an
examination of several features that have been identified in the Code, IRS
pronouncements and case law as characteristic of either debt or equity. The
Series A Preferred Stock has some features that are treated under Federal tax
law as characteristic of equity and other features that are treated as
characteristic of debt. The applicable law does not clearly specify how much
relative weight each such feature should be accorded. Moreover, some features
have been disregarded in some of the relevant authorities or treated as less
important than in other authorities. Consequently, the classification of the
Series A Preferred Stock as equity or debt under the Code is uncertain.
Legal counsel has concluded that the number and relative importance of the
equity characteristics of the Series A Preferred Stock are greater than the
number and relative importance of its debt characteristics. Therefore, legal
counsel is of the opinion that it is more likely than not that the Series A
Preferred Stock constitutes equity rather than debt for U.S. Federal income tax
purposes. The tax consequences set forth below are determined in reliance upon,
and are subject to, the correctness of this opinion.
Risks to a U.S. Holder if Series A Preferred Stock is Determined to Constitute
Debt
If, contrary to legal counsel's opinion, the Series A Preferred Stock were
determined by a court to constitute debt instead of equity, the risks to a U.S.
Holder are that:
- no actual distributions or income accruals would be treated as dividends;
- all or a substantial portion of the actual distributions and accrued
income amounts that are described below as dividend income would instead
be treated as interest income;
106
112
- income could be recognized at an earlier period. This could occur because
the Federal income tax accrual rules relating to debt obligations that do
not pay interest currently may require accelerated recognition of income
compared to that described below, e.g., because accrued amounts payable
upon redemption would be recognized over the term of the Series A
Preferred Stock using a constant yield method; and
- amounts distributed that are described below as first reducing a U.S.
Holder's tax basis and then giving rise to capital gain, because they
exceed the Company's current and accumulated earnings and profits, would
instead be taxable as ordinary income to the extent they are
recharacterized as interest.
Interest income and dividend income are taxed under the Code at the same
rate. However, a corporate U.S. Holder of the Series A Preferred Stock would not
be entitled to the dividends-received deduction, which is described below, if
income on the Series A Preferred Stock were treated as interest rather than
dividends. As a result, the effective tax rate applicable to such income for a
corporate U.S. Holder would be substantially higher (generally 35%, rather than
the effective 10.5% rate that results from the 70% dividends-received
deduction).
SERIES A PREFERRED STOCK
Cash Distributions
Cash distributions on the Series A Preferred Stock will constitute
dividends to the extent they are paid from current or accumulated earnings and
profits of the Company (as determined under U.S. Federal income tax principles).
Contingent Warrants
The Contingent Warrants are not separable from the Series A Preferred Stock
until the later of the Contingent Warrant Release Date and the Separation Date.
The Company will treat the release of the Contingent Warrants as a distribution
with respect to the Series A Preferred Stock on each applicable Contingent
Warrant Release Date. The amount of such a distribution will equal the fair
market value of the Contingent Warrants, if any, distributed on each of these
dates. This amount will constitute a dividend to the extent it is paid from the
Company's current or accumulated earnings and profits. Such amount will also be
the initial tax basis of the Contingent Warrants for U.S. Federal income tax
purposes.
Annual Income Accruals Based on Redemption Premium
A U.S. Holder may be treated as having received an annual distribution,
taxable as a dividend to the extent of the current or accumulated earnings and
profits of the Company, in an amount equal to the annual accrual of the
redemption premium. The redemption premium is the difference between the issue
price of such Series A Preferred Stock and the redemption price of such stock.
Such accrual will be determined under a constant yield method that will result
in increasing amounts of accruals of income over the accrual period. The accrual
will not be required, however, if the redemption premium does not exceed a de
minimis amount.
Uncertainty of Annual Amounts of Accruals of Redemption Premium
For purposes of determining the redemption premium, the Company intends to
treat the redemption price as the amount that will be paid upon retirement of
the Series A Preferred Stock on September 1, 2009. Legal counsel is unable to
render an opinion regarding which possible redemption price must be used in
determining the amount of the redemption premium and whether a shorter accrual
period may be required, due to the absence of applicable guidance in Federal
income tax laws and interpretations thereof. Legal counsel has advised the
Company that it is reasonable and appropriate to adopt the treatment described
in this paragraph.
107
113
Risk that Annual Accruals of Redemption Premium Might be Determined to be
Larger
The IRS might assert, and a court could conclude, that the appropriate
redemption price to be used in determining the redemption premium is higher than
the redemption price used by the Company and that the appropriate redemption
date used in determining accruals is earlier than the date used by the Company.
For example, it is possible that a redemption price applicable to an optional or
mandatory redemption by the Company that might occur prior to September 1, 2009
would be treated as the appropriate redemption price to use for this purpose and
that the appropriate accrual period should end on an earlier date corresponding
with that redemption. The risk to U.S. Holders if such a contention were made by
the IRS and sustained by a court is that:
- the redemption price could be deemed to be as high as 108% of the
liquidation preference of the Series A Preferred Stock;
- the amount of the redemption premium, and therefore the amounts of the
annual income accruals described above, would be correspondingly greater
than the accruals, if any, determined by the Company; and
- the income accruals would be required to be taken into account entirely
in a period or periods prior to the date on which the redemption is
deemed to occur for this purpose, which would be a date prior to
September 1, 2009.
Company's Determination of Redemption Premium Binds Holders Unless They Make
Required Disclosure
The Company's determination of the amount(s) of any required accruals of
redemption premium is binding on all U.S. Holders of the Series A Preferred
Stock (who may obtain this information from the Company), other than a U.S.
Holder that explicitly discloses that its determination of the amounts, if any,
of such accruals differs from that of the Company. Such disclosure must be made
on a statement attached to the U.S. Holder's timely filed Federal income tax
return for the taxable year that includes the date the U.S. Holder acquired the
Series A Preferred Stock.
Accrued Dividends Payable Upon Redemption
Company Will Report These Dividends as Taxable at the Time of Redemption.
Any dividends on the Series A Preferred Stock that are not paid in cash
will accrue and compound. These accrued dividends will be payable upon the
optional or mandatory redemption of the Series A Preferred Stock. Under current
law, it appears that these dividends would not be treated as having been
received by holders of the Series A Preferred Stock until such dividends were
actually paid in cash. At that time, they would be taxable distributions for
U.S. Federal income tax purposes, treated as dividends to the extent of the
Company's current and accumulated earnings and profits. The Company intends,
absent a change in law, regulation or other legal authority, to take the
position that these dividends need not be treated as received by a holder until
such time as they are actually paid to such holder in cash. The Company will
report to the IRS on that basis.
Risk if Company's Reporting of Accrued Dividends is Incorrect
Congress has given the IRS express authority to issue regulations (possibly
with retroactive effect) that would treat the accrued dividends referred to in
the previous paragraph as part of the redemption price of the stock. Absent such
regulations, Federal income tax law does not clearly address how and when these
dividends should be recognized. Therefore, legal counsel is unable to render an
opinion regarding whether these accrued dividends must be treated as part of the
redemption price of the stock. If the IRS were to contend that these dividends
must be included in the redemption price of the Series A Preferred Stock and
such contention were upheld by a court, the risk to a holder is that the
redemption price used in determining the annual income accruals that
108
114
are described above would be correspondingly higher. As a result, the holder
would be treated as having received the accrued dividends annually as
constructive distributions at the time they accrue, rather than at the later
time they are paid in cash.
Distributions of Cash or Contingent Warrants and Accruals of Redemption
Premium that Exceed the Company's Earnings and Profits
To the extent that the amount of (1) any actual distribution (including
accrued dividends payable at the time of a redemption) or (2) any constructive
distribution resulting from the accrual of redemption premium on the Series A
Preferred Stock or the release of the Contingent Warrants exceeds the Company's
current and accumulated earnings and profits allocable to such distributions (as
determined for Federal income tax purposes), such distribution will be treated
as a return of capital. A return of capital will first reduce the U.S. Holder's
adjusted tax basis in such Series A Preferred Stock and then, to the extent it
exceeds such basis, will be taxed as capital gain. This capital gain will be
long-term capital gain if the U.S. Holder's holding period for such Series A
Preferred Stock exceeds one year.
Dividends Received Deduction
Under Section 243 of the Code, corporate U.S. Holders generally will be
able to deduct 70% of the amount of any distribution qualifying as a dividend.
There are, however, many exceptions and restrictions relating to the
availability of such dividends received deduction. Specifically,
- Section 246A of the Code reduces the dividends received deduction allowed
to a corporate U.S. Holder that has incurred indebtedness "directly
attributable" to its investment in portfolio stock;
- Section 246(c) of the Code requires that, in order to be eligible for the
dividends received deduction, a corporate U.S. Holder must, among other
things, hold the shares of the Series A Preferred Stock for tax purposes
for a minimum of 46 days (91 days in the case of certain preferred stock
dividends attributable to a period or periods aggregating in excess of
366 days) during a prescribed period (taking into account certain
transactions that diminish the U.S. Holder's risk of loss and result in
the suspension of holding periods);
- No deduction is allowed if the corporate U.S. Holder is under an
obligation to make related payments with respect to positions in
substantially similar or related property;
- To the extent the dividends received deduction is allowed, a corporate
U.S. Holder's liability, if any, for alternative minimum tax may be
increased; and
- Under Section 1059 of the Code, a corporate U.S. Holder is required to
reduce its tax basis (but not below zero) in the Series A Preferred Stock
by the nontaxed portion of any "extraordinary dividend" (as defined
below) if such stock has not been held for tax purposes for more than two
years before the earliest of the date such dividend is declared,
announced, or agreed to. Generally, the nontaxed portion of an
extraordinary dividend is the amount excluded from income by operation of
the dividends received deduction provisions of Section 243 of the Code.
Extraordinary Dividends
An extraordinary dividend on the Series A Preferred Stock generally would
be a dividend that:
- equals or exceeds 5% of the corporate U.S. Holder's adjusted tax basis in
the Series A Preferred Stock, treating all dividends having ex-dividend
dates within a 85-day period as one dividend;
109
115
- exceeds 20% of the corporate U.S. Holder's adjusted tax basis in the
Series A Preferred Stock, treating all dividends having ex-dividend dates
within a 365-day period as one dividend; or
- is treated as a dividend in the case of a redemption that is non-pro rata
as to all stockholders or in partial liquidation of the Company or which
would not have been treated as a dividend if any options had not been
taken into account under Section 318(a)(4) of the Code or Section 304(a)
of the Code had not applied, regardless of the stockholder's holding
period and regardless of the size of the dividend.
If any part of the nontaxed portion of an extraordinary dividend is not
applied to reduce the U.S. Holder's tax basis as a result of the limitation
noted above on reducing such basis below zero, such part will be treated as
capital gain. The U.S. Holder will recognize this gain in the taxable year in
which the extraordinary dividend is received.
Disposition of Preferred Stock
Tax Basis of Preferred Stock
A U.S. Holder's adjusted tax basis in the Series A Preferred Stock will, in
general, be the U. S. Holder's initial tax basis of such Series A Preferred
Stock increased by the redemption premium, if any, previously included in income
by the U.S. Holder. A corporate U.S. Holder's tax basis may be further adjusted
by the extraordinary dividend provisions discussed above.
Sale of Preferred Stock Other Than by Redemption
Upon the sale or other disposition of Series A Preferred Stock (other than
by redemption), a U.S. Holder will generally recognize capital gain or loss
equal to the difference between the amount realized upon the disposition and the
adjusted tax basis of the Series A Preferred Stock. Such gain or loss will be
capital gain or loss. It will be long-term capital gain or loss if at the time
of sale, exchange, or other disposition the Series A Preferred Stock has been
held for more than one year. The deductibility of capital losses is subject to
limitations.
Redemption of Preferred Stock
The treatment of a particular redemption of Series A Preferred Stock by the
Company as (1) a dividend or (2) an exchange depends upon whether the redemption
meets one of the alternative requirements for exchange treatment that are
enumerated in Section 302(b) of the Code. This treatment is explained in the
following table:
REDEMPTION TAX TREATMENT
---------- -------------
Completely terminates holder's Treated as an exchange
stock interest
Reduces holder's ownership interest Treated as an exchange
by meeting substantially
disproportionate test under Code
Section 302(b)(1)
Is not essentially equivalent to a Treated as an exchange
dividend under Code Section
302(b)(1)
Is not described above Treated as a dividend to the extent
of earnings and profits of the
Company allocated to the redemption
110
116
Consequences of Treatment as Exchange
If a redemption is treated as an exchange, a U.S. Holder will generally
recognize capital gain or loss as described above. However, any portion of the
redemption price that includes dividends which have been declared but not paid
prior to the redemption will be treated as a dividend as described above.
Consequences of Treatment as Dividend
If a redemption of shares of the Series A Preferred Stock is treated as a
dividend, a U.S. Holder will not recognize any loss on the redemption. The U.S.
Holder will recognize dividend income (rather than capital gain) in an amount
equal to its proportionate share of the Company's current or accumulated
earnings and profits.
Determination Whether a Particular Redemption is
Treated as an Exchange or a Dividend
The determination whether a particular redemption is treated as an exchange
or a dividend:
- is made at the time of the redemption;
- depends upon the extent to which the redemption reduces the U.S. Holder's
ownership interest in the Company;
- requires the application of constructive ownership rules that may treat a
U.S. Holder as owning stock that could be acquired through the exercise
of Warrants or stock that is owned by legal entities or family members
with specified relationships to the U.S. Holder; and
- requires taking into account other redemptions that are effected at the
same time or as part of the same plan.
Consequently, because these facts are not presently known with respect to any
future redemption, legal counsel cannot express any opinion regarding whether
any such redemption will be treated as an exchange or a dividend.
Greater Risk if "Not Essentially Equivalent to a Dividend" Standard is Relied
Upon
Whether a redemption satisfies the complete termination or substantially
disproportionate requirements referred to in the table above generally should be
determinable at the time of the redemption. Satisfaction of these requirements
is based upon the application of ownership standards expressly set forth in
federal income tax law. However, a redemption will be "not essentially
equivalent to a dividend" as to a particular U.S. Holder only if it satisfies a
more subjective test, i.e., if it results in a "meaningful reduction" in such
U.S. Holder's interest in the Company (after application of the constructive
ownership rules of Section 318 of the Code). The determination whether a
"meaningful reduction" occurs will be required only if a particular redemption
fails to satisfy either of the other two tests. This determination is also made
at the time of redemption. In many cases, the application of this meaningful
reduction test will produce an uncertain result because the relevant principles
established in judicial decisions and IRS rulings have been applied only in
specific factual situations. There is no authority that specifies how they
should apply in different factual situations not specifically addressed in a
case or ruling. The risk to a U.S. Holder arising from this uncertainty is that
amounts reported by the U.S. Holder with respect to redemptions as capital gains
or losses or as dividends may be redetermined and recharacterized. As a result,
a U.S. Holder may have a greater Federal income tax liability, including any
applicable interest charges and reporting penalties.
111
117
Information Reporting and Backup Withholding
A noncorporate U.S. Holder of Series A Preferred Stock may be subject to
backup withholding at a 31% rate with respect to dividends (including any
accrual of redemption premium) on and the proceeds of a redemption, sale or
exchange of the Series A Preferred Stock. The payor of these amounts will be
required to deduct and withhold 31% of such payments if:
- the U.S. Holder fails to furnish a correct Taxpayer Identification Number
(a "TIN") to the payor in the prescribed manner;
- the IRS notifies the payor that the TIN furnished by the U.S. Holder is
incorrect;
- the U.S. Holder has failed properly to report the receipt of interest or
dividends and the IRS has notified the payor that backup withholding is
required; or
- the U.S. Holder fails to certify under penalties of perjury that it is
not subject to backup withholding.
Any amount withheld from a payment to a U.S. Holder under the backup
withholding rules will be allowed as a refund or credit against such holder's
U.S. federal income tax liability, so long as the required information is
provided to the IRS.
The payor of any dividends and proceeds generally will report to a U.S.
Holder of Series A Preferred Stock and to the IRS the amounts paid in respect to
the Series A Preferred Stock for each calendar year and the amount of tax
withheld, if any, with respect to such payments.
NON-U.S. HOLDERS
The opinions above are applicable only to U.S. Holders. The Series A
Preferred Stock may not be an appropriate investment for persons other than U.S.
Holders ("Non-U.S. Holders"), since dividends on the Series A Preferred Stock
(whether paid in cash or in-kind) generally will be subject to the withholding
of U.S. Federal income tax at a 30% rate. (A lower rate may be provided for in
an applicable income tax treaty, subject to applicable requirements, including
the requirement to provide specified documentation of foreign status). Tax
consequences for Non-U.S. Holders, if any, may differ if their investment in
Series A Preferred Stock is treated as effectively connected with their conduct
of a trade or business within the United States. The tax consequences to
Non-U.S. Holders may be complex and in some cases, adverse, and are not
described herein except to the limited extent set forth in this paragraph.
Persons who are Non-U.S. Holders should consult their own tax advisors prior to
acquiring Series A Preferred Stock.
THE EFFECTS OF THE TAX RULES DESCRIBED ABOVE ON A PARTICULAR U.S. HOLDER
MAY DIFFER DEPENDING UPON THAT HOLDER'S FACTUAL CIRCUMSTANCES AT THE TIME OF ANY
DISTRIBUTION, REDEMPTION OR OTHER TRANSACTION. FOR EXAMPLE, THE TREATMENT OF A
PARTICULAR REDEMPTION OF SERIES A PREFERRED STOCK AS AN EXCHANGE OR A DIVIDEND
WILL DEPEND UPON THE PARTICULAR U.S. HOLDER'S STOCK OWNERSHIP BEFORE AND AFTER
THE REDEMPTION, TAKING INTO ACCOUNT STOCK OWNED AND DEEMED TO BE OWNED BY THAT
U.S. HOLDER UNDER THE APPLICABLE CONSTRUCTIVE OWNERSHIP RULES OF THE CODE. FOR
THIS REASON, PROSPECTIVE PURCHASERS OF SERIES A PREFERRED STOCK ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE APPLICATION TO THEIR
PARTICULAR SITUATIONS OF THE U.S. FEDERAL INCOME TAX LAWS SET FORTH ABOVE.
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED STOCK ARE ALSO URGED TO CONSULT
THEIR OWN TAX ADVISORS REGARDING THE APPLICATION TO THEM OF THE LAWS OF ANY
STATE, LOCAL OR FOREIGN TAXING JURISDICTION.
112
118
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from any sale of Preferred Shares
by any Selling Stockholder. Preferred Shares may be sold from time to time by
Selling Stockholders pursuant hereto in brokers' transactions, in transactions
with market makers, in block placements, or otherwise, at market prices
prevailing at the time of the sale or at prices otherwise negotiated. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer and/or the purchasers of any such Preferred Shares. Any
broker-dealer that participates in a distribution of such Preferred Shares and
other participating broker-dealers and the Selling Stockholders may be deemed to
be "underwriters" within the meaning of the Securities Act, and any profit of
any such resale of Preferred Shares and any commissions or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. If required, the Company will amend this Prospectus to update
the selling stockholder information required by Item 507 of Regulation S-K.
The Preferred Shares may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve block transactions) (i) on any
national securities exchange or quotation service on which the Preferred Shares
may be listed or quoted at the same time of the sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Preferred Shares or otherwise, the
Selling Stockholders may enter into hedging transactions with broker-dealers,
which may in turn engage in short sales of the Preferred Shares in the course of
hedging in positions they assume. The Selling Stockholders may also sell
Preferred Shares short and deliver Preferred Shares to close out short
positions, or loan or pledge Preferred Shares to broker-dealers that in turn may
sell such Preferred Shares.
The Company does not intend to apply for listing of the Preferred Shares on
any securities exchange. Accordingly, no assurance can be given as to the
development of liquidity or any trading market for the Preferred Shares.
There can be no assurance that any Selling Stockholder will sell any or all
of the Preferred Shares registered pursuant to the registration statement of
which this Prospectus forms a part (the "Registration Statement"). In addition,
any Preferred Shares covered by the Registration Statement of which this
Prospectus forms a part that qualify for sale pursuant to Rule 144 or Rule 144A
of the Securities Act may be sold under Rule 144 or Rule 144A rather than
pursuant to this Prospectus.
The Selling Stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation Regulation M
which may limit the timing of purchases and sales of any of the Preferred Shares
by the Selling Stockholders and any other such person. Furthermore, Regulation M
of the Exchange Act may restrict the ability of any person engaged in the
distribution of the Preferred Shares to engage in market-making activities with
respect to the particular Preferred Shares being distributed for a period of up
to five business days prior to the commencement of such distribution. All of the
foregoing may affect the marketability of the Preferred Shares and the ability
of any person or entity to engage in market-making activities with respect to
the Preferred Shares.
To comply with the securities laws of certain jurisdictions, if applicable,
the Preferred Shares will be offered or sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain jurisdictions
the Preferred Shares may not be offered or sold unless they have been registered
or qualified for sale in such jurisdictions or an exemption from registration or
qualification is available and is complied with.
113
119
The Company intends to maintain the effectiveness of the Registration
Statement for two (2) years (or, if earlier, until the date that all Preferred
Shares covered hereby are sold by the Selling Stockholders pursuant hereto).
Notwithstanding the foregoing, if counsel to the Company determines in good
faith that it is reasonable to conclude that compliance with the Company's
disclosure obligations in connection with the Registration Statement may require
the disclosure of information that the Board of Directors has identified as
material and that the Board of Directors has determined that the Company has a
bona fide business purpose for preserving as confidential, then the Company
shall not be required to maintain the effectiveness of the Registration
Statement or amend or supplement the Registration Statement for a period (an
"Information Delay Period") expiring three (3) business days after the earliest
to occur of (i) the date on which such material information is disclosed to the
public or ceases to be material or the Company is able to so comply with its
disclosure obligations and Commission requirements or (ii) 45 days after the
Company notifies the Selling Stockholders of such good faith determination.
Whether or not the Company enters an Information Delay Period, the Company will
disclose in a timely fashion all material information as required by the Federal
securities laws. There may be no more than four (4) Information Delay Periods
prior to the Expiration Date and no more than two (2) Information Delay Periods
during any contiguous 135 day period. The Company is required to provide notice
of any such Information Delay Period. Upon receiving such notice and until the
expiration of the Information Delay Period, the Selling Stockholders must
immediately discontinue disposition of Preferred Shares pursuant hereto and
immediately discontinue distribution hereof.
The Company has agreed to pay all expenses incident to the registration of
the Preferred Shares for resale by the Selling Stockholders other than the
expenses of counsel for the Selling Stockholders and commissions or concessions
of any brokers or dealers, and will indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act.
114
120
SELLING STOCKHOLDERS
The following table provides certain information with respect to the
Preferred Shares held of record by each Selling Stockholder. No Selling
Stockholder holds shares of Common Stock of the Company. The Preferred Shares
may be offered from time to time by any of the Selling Stockholders. Because the
Selling Stockholders may sell all or any part of their shares pursuant to this
Prospectus, no estimate can be given as to the number of shares that will be
held by each Selling Stockholder upon termination of this offering. See "Plan of
Distribution".
Number of Preferred Shares Owned Prior to this Offering
Name and Number of Preferred Shares That May Be Sold in this Offering
- ---- ----------------------------------------------------------------
Putnam Investments Funds:
VT High Yield Fund........................................ 4,083
High Yield Managed Trust.................................. 1,623
Putnam High Yield Fixed Income Trust...................... 362
Abbott Laboratories Annuity Retirement Plan............... 227
High Yield Fixed Income Fund.............................. 21
Ameritech Fund............................................ 527
Putnam High Yield Total Return............................ 383
Putnam High Yield Trust II................................ 3,877
Central States-High Yield................................. 1,168
Putnam Managed High Yield Trust........................... 382
Putnam High Yield Advantage............................... 10,337
Putnam High Yield Trust................................... 13,191
Goldman, Sachs & Co......................................... 5,169
Goldman, Sachs & Co. acted as an Initial Purchaser in the Initial Offering,
for which it received customary fees, and it may receive additional fees after
the date of this Prospectus in connection with investment banking services it
may provide to the Company. Goldman Sachs Credit Partners L.P., an affiliate of
Goldman, Sachs & Co., is a lender under the New Revolving Credit Facility. See
"Description of Certain Indebtedness -- New Revolving Credit Facility."
VALIDITY OF THE SECURITIES
The validity of the Preferred Shares will be passed upon for the Company by
Hale and Dorr LLP, Boston, Massachusetts.
INDEPENDENT ACCOUNTANTS
The financial statements of the Company as of December 31, 1997 and 1996
and for each of the years in the three-year period ended December 31, 1997
included in this Prospectus have been audited by PricewaterhouseCoopers LLP,
independent accountants, as stated in their report appearing herein.
115
121
GLOSSARY
1+ OUTBOUND SERVICE -- Standard, self-dialed long distance telephone service.
"500 NUMBER" TECHNOLOGY -- A non-geographic area code system that allows for
"follow me" services.
ACCESS CHARGES -- The fees paid by long distance carriers to LECs for
originating and terminating long distance calls on their local networks.
ADVANCED INTELLIGENT NETWORK (AIN) -- A network architecture with three basic
elements: (1) Signal Control Points (SCPs) -- computers that hold databases in
which customer-specific information is stored for use by the network to route
calls; (2) Signal Switching Points (SSPs) -- digital telephone switches that can
communicate with SCPs and ask them for customer-specific instructions as to how
a call should be completed; and (3) Signal Transfer Points (STPs) -- packet
switches that shuttle messages between SSPs and SCPs.
AMERICAS 1 -- A submarine telecommunications cable system linking the United
States and several Caribbean and South American countries.
AUTOMATIC NUMBER IDENTIFICATION (ANI) -- The delivery of the calling party's
number by a LEC for billing or routing purposes and the subsequent delivery of
such number of end users.
BANDWIDTH -- The number of bits of information that can move through a
communications medium in a given amount of time; the capacity of a
telecommunications circuit or network to carry voice, data and video
information.
BUNDLED SERVICES -- Services for which a carrier must pay one all-inclusive
charge for switching, transmission, LEC access, and other charges.
CALL DETAIL RECORD (CDR) -- A paper or electronic record of the time, duration,
and points of origination and termination of a telephone call, made and kept
primarily for billing purposes.
CATVS (COMMUNITY ANTENNA TELEVISION OR CABLE TELEVISION) -- Cable television
service providers.
CENTREX -- A trademarked name for an ILEC service that offers direct dialing
within a given phone system, direct dialing of incoming calls and automatic
identification of outbound calls. This service simulates, through equipment
located centrally, the features of a dedicated switching system located within
an office building (a so-called Private Branch Exchange or PBX).
CO-CARRIER STATUS -- A relationship between CLECs that affords equal access to
and rights on each other's networks, and that provides access and services on an
equal basis.
COLLOCATION -- The physical or virtual connection of a telecommunications
carrier's equipment with a given LEC's system to facilitate the interconnection
of their respective switching/routing equipment.
COMMERCIAL MOBILE RADIO SERVICE (CMRS) -- The FCC's term for certain wireless
telecommunication services, provided on a commercial basis, including cellular
telephone service and personnel communications services.
COMMUNICATIONS ACT -- The Communications Act of 1934, 47 U.S.C. sec. 151 et
seq., as amended.
COMPETITIVE ACCESS PROVIDER (CAP) -- A company that provides its customers with
an alternative to the local exchange company for local transport of private line
and special access services, and interstate transport of switched access
telecommunications services.
COMPETITIVE LOCAL EXCHANGE CARRIER (CLEC) -- A company that provides its
customers an alternative to the local telephone carrier for local transport of
private line, special access and switched local access telecommunications
services.
G-1
122
CONTRACT TARIFFS -- Contractually prescribed rates for telecommunications
services, generally set forth on a per minute basis by place of termination of
call, and filed with a state or federal regulatory agency.
DEDICATED ACCESS LINES -- Telecommunications lines dedicated or reserved for use
exclusively by particular customers along predetermined routes (in contrast to
telecommunications lines within a LEC's public, switched network).
DIALING PARITY -- The ability to reach a given termination point by dialing the
same telephone number, or same number of digits, through any provider of
telecommunication services.
DSO, DS1, DS3 AND E1 SPEEDS -- Standard telecommunications industry signal
formats which are distinguishable by bit rate (the number of binary digits (0
and 1) transmitted per second).
FACILITIES-BASED PROVIDER -- A telecommunications company that carries all or a
portion of its traffic over its own network infrastructure, including switching
facilities and/or transport facilities; distinguished from a company that
carriers traffic solely over leased infrastructure elements. There is no
industry consensus on what constitutes a facilities-based carrier and the FCC
and state regulatory agency definitions vary accordingly.
FCC -- United States Federal Communications Commission.
FGD (FEATURE GROUP D) -- A trunk-side LATA access affording call supervision to
an interexchange carrier (IXC), a uniform access code, optional calling-party
identification, recording of access-charge billing details, and presubscription
to a customer-specified IXC. FGD also provides automatic number identification
(ANI) for billing purposes.
FILE TRANSFER PROTOCOL (FTP) -- A service that supports file transfer between
local and remote computers.
"FOLLOW ME" NUMBERS -- "Smart" telephone numbers that, through number
translation and computer switching, can be used to reach a person among various
possible locations (e.g., home, office, etc.).
FRAME RELAY SERVICE -- A high-speed data packet switching service used to
transmit data between computers.
HUNT SEQUENCING -- A series of telephone lines organized in such a way that if
the first line is busy the next line is hunted and so on until a free line is
found.
INCUMBENT LOCAL EXCHANGE CARRIERS (ILEC) -- Companies providing local telephone
services that were historically the sole local provider in their respective
regions, including RBOCs.
INDEFEASIBLE RIGHT OF USE ("IRU") -- An unconditional right to use a facility,
such as a fiber optic filament or right of way; this right is created by
contract and confers upon the holder certain indicia of ownership, while leaving
legal title in the hands of the grantor.
INTELLIGENT NETWORK -- See "AIN", above.
INTEGRATED COMMUNICATIONS PROVIDER (ICP) -- A telecommunications carrier that
provides packaged or integrated services from among a broad range of categories,
including local exchange, long distance, enhanced data, cable TV, and other
communications services.
INTEGRATED SERVICES DIGITAL NETWORK (ISDN) -- A transmission method that
provides circuit-switched access to a public network at high speeds for voice,
data and video transmission.
INTERCONNECTION AGREEMENT -- A contract between an ILEC and CLEC for the
interconnection of the two networks and CLEC access to the ILEC's unbundled
network elements and resale of the ILEC's services. Such an agreement sets out
the financial and operational aspects of such interconnection and access.
G-2
123
INTERCONNECTION ORDERS -- Rulings by the FCC announced in August 1996 that
implemented the local competition provisions of the Telecommunications Act and
that require ILECs to provide interconnection to any CLEC, seeking such
interconnection.
INTEREXCHANGE CARRIER (IXC) -- A telecommunications company that provides
telecommunications services between local exchanges on an interstate or
intrastate basis.
INTER-LATA SERVICE -- Telecommunications services originating in one LATA and
terminating in another.
INTERNATIONAL GATEWAY SWITCH -- A switch that routes international
telecommunications traffic.
INTERNET PROTOCOL (IP) -- Network protocols that allow computers with different
architectures and operating system software to communicate with other computers
on the Internet.
INTERNET SERVICE PROVIDER (ISP) -- A vendor who provides access for customers to
the Internet and the World Wide Web.
INTRA-LATA SERVICE -- Telecommunications services originating and terminating in
the same LATA.
LOCAL ACCESS AND TRANSPORT AREA (LATA) -- A geographic area established by the
MFJ within which a former Bell System local exchange carrier offers switched
telecommunications services, including long distance services. The MFJ
established approximately 200 LATAs in the United States. The term is primarily
of historical significance since the enactment of the Telecommunications Act.
LOCAL EXCHANGE -- A geographic area determined by the appropriate state
regulatory authority in which calls generally are transmitted without toll
charges to the customer.
LOCAL EXCHANGE CARRIER (LEC) -- A telecommunications company that provides
telecommunications services in a geographic area in which calls generally are
transmitted without toll charges. LECs include both RBOCs and CLECs.
LOCAL MULTIPORT DISTRIBUTION SERVICE (LMDS) -- Digital wireless service licensed
by the FCC in the 28-30 GHz frequency band.
LOCAL NUMBER PORTABILITY (LNP) -- The ability of an end user to retain a given
telephone number upon changing local telephone service providers.
LOOPS -- Circuits that connect end users to telecommunications switching
equipment.
MODIFIED FINAL JUDGMENT (MFJ) -- The consent decree resulting from United States
v. AT&T that effected the breakup of AT&T and the separation of its local and
long distance businesses.
MULTICHANNEL MULTIPOINT DISTRIBUTION SERVICE (MMDS) -- A one-way domestic public
radio service rendered on microwave frequencies from a fixed station
transmitting to multiple receiving facilities located at fixed points.
MULTIPLEXING -- An electronic or optical process that combines a number of lower
speed transmission lines into one high-speed line in order to maximize capacity.
NETWORK -- A web of telecommunications equipment, including switches and lines,
over which telecommunications traffic can be transmitted.
NETWORK OPERATIONS CENTER -- The central office from which the Company manages
its network.
NODE -- A point on a network at which a router and user access equipment are
located.
NPI -- Network Plus, Inc., a wholly owned operating subsidiary of Network Plus
Corp.
ON-NET TRAFFIC -- Customer traffic that is switched by one or more of the
Company's switches; such traffic may be transported on third-party facilities.
G-3
124
OFF-NET TRAFFIC -- Customer traffic that is neither switched nor transported on
the Company's network; such traffic is carried entirely on third-party
facilities.
OPERATIONAL SUPPORT SYSTEM (OSS) -- The Company's methods, procedures and
software that directly support the daily operations of its telecommunications
infrastructure.
PEERING -- The commercial practice under which ISPs exchange each other's
traffic without the payment of settlement charges. Peering occurs at both public
and private exchange points.
PERCENTAGE ALLOCATION ROUTING -- An 800 Service that allows a customer to route
pre-selected percentages of calls from each originating routing group (typically
an area code) to two or more answering locations. Allocation percentages may be
further dictated based on the day of the week, time of day, etc.
PERSONAL COMMUNICATIONS SERVICE (PCS) -- A type of wireless telephone system
licensed by the FCC that uses light, inexpensive handheld sets and communicates
via low-powered antennas.
POINT OF PRESENCE (POP) -- The location at which a long distance carrier has
installed transmission equipment in a service area that serves as, or relays
calls to, a network switching center of that long distance carrier.
PRIVATE LINE -- A private, dedicated telecommunications line connecting
different point-to-point locations (excluding long distance carrier POPs).
PROVISIONING -- The act of supplying telecommunications services to a user,
including all associated transmission, fiber and equipment.
PUBLIC SWITCHED TELEPHONE NETWORK (PSTN) -- That portion of a local exchange
company's network available to all users generally on a shared basis (i.e., not
dedicated to a particular user). Traffic along the PSTN is generally switched at
the LECs central offices.
PUBLIC UTILITY COMMISSION (PUC) -- A state regulatory commission, existing in
most states, that regulates public utilities, including telecommunications
companies providing intrastate services.
REGIONAL BELL OPERATING COMPANIES (RBOCS) -- The regional local telephone
holding companies established by the MFJ that effected the breakup of AT&T, and
which generally had a monopoly on local telephone service in their respective
areas prior to the enactment of the Telecommunications Act.
ROUTING -- The process by which sophisticated computer switching equipment
directs a call from its point of origination to its point of termination.
Intelligent routing capabilities include time-of-day, day-of-week, and
day-of-year routing, which direct calls to varying termination points based on
specified computer instructions; and least cost routing, which chooses the most
cost-efficient route available.
SIGNALLING SYSTEM SEVEN (SS7) -- An advanced signaling protocol that helps
optimize a network's efficiency through intelligent out-of-band routing
decisions.
SIGNALLING TRANSFER POINT -- The signalling facility through which SS7 messages
must pass as they are transmitted to their points of termination.
SWITCH -- A sophisticated computer that (a) routes telecommunications
transmissions by selecting the paths or circuits to be used for the transmission
of information and (b) establishes a connection. Switches allow
telecommunications service providers to connect calls to their destinations
while providing advanced features and recording connection information for
future billing.
SWITCHED ACCESS SERVICE -- The origination or termination of long distance
traffic between a customer's premises and a long distance carrier's POP via
shared local trunks using a local switch.
SWITCHED TRAFFIC -- Telecommunications traffic along a switched network.
G-4
125
TAT 12/13 RIOJA -- A transatlantic submarine telecommunications cable linking
the United States and Europe.
TELECOMMUNICATIONS ACT -- The federal Telecommunications Act of 1996, 47 U.S.C.
sec. 230 et seq.
TERMINATION POINT -- The destination point of a telephone call.
TPC-5 -- A transpacific submarine telecommunications cable system linking the
United States and East Asia.
TRUNK LINE SERVICE -- A service that combines multiple channels with
unrestricted access in such a manner that user demands for channels are
automatically "queued" and then allocated to the first available channels.
UNBUNDLED ACCESS -- Access to unbundled elements of a telecommunications
services provider's network including network facilities, equipment, features,
functions and capabilities, at any technically feasible point within such
network.
UNBUNDLED NETWORK ELEMENTS (UNE) -- The various portions of an ILECs network
that a CLEC can lease for purposes of building a facilities-based competitive
network, including copper lines, fiber, central office collocation space,
interoffice transport, operational support systems, local switching and rights
of way.
VIRTUAL PRIVATE NETWORK (VPN) -- A service that establishes a software-derived
network offering the appearance, functionality and usefulness of a dedicated
private network.
WIRELESS COMMUNICATIONS SERVICE -- A generic term for telecommunications
services transmitted by radio signal, as opposed to those sent over fiber optic
or copper lines.
G-5
126
NETWORK PLUS CORP.
FINANCIAL STATEMENTS
INDEX TO FINANCIAL STATEMENTS
PAGE
----
1997 FINANCIAL STATEMENTS OF NETWORK PLUS, INC.
Report of Independent Accountants......................... F-2
Balance Sheets as of December 31, 1997 and 1996........... F-3
Statements of Operations and Retained Earnings for the
Years Ended December 31, 1997, 1996 and 1995........... F-4
Statements of Cash Flows for the Years Ended December 31,
1997, 1996 and 1995.................................... F-5
Notes to Financial Statements............................. F-6
UNAUDITED SEPTEMBER 30, 1998 INTERIM CONSOLIDATED FINANCIAL
STATEMENTS OF NETWORK PLUS CORP.
Balance Sheets as of September 30, 1998 and December 31,
1997................................................... F-17
Statements of Operations for the Three Months and Nine
Months Ended September 30, 1998 and 1997............... F-18
Statement of Stockholders' Equity (Deficit) for the Nine
Months Ended
September 30, 1998..................................... F-19
Statements of Cash Flows for the Nine Months Ended
September 30, 1998 and 1997............................ F-20
Notes to Unaudited Interim Financial Statements........... F-21
On July 15, 1998, Network Plus Corp. (the "Company") was incorporated in
the state of Delaware. The stockholders of Network Plus, Inc. contributed 100%
of their shares to the Company in return for 10,000,000 shares of the Company's
common stock. Accordingly, Network Plus, Inc. became a wholly-owned subsidiary
of the Company.
The principal operations of the Company have been to issue stock options,
preferred stock and warrants. Through September 30, 1998, Network Plus, Inc.
remains the only operating entity of the Company.
For periods prior to the formation of the Company, the financial statements
reflect the financial statements of Network Plus, Inc., as it was the sole
operating entity.
F-1
127
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of Network Plus Corp.:
In our opinion, the accompanying balance sheets and the related statements
of operations and retained earnings and of cash flows present fairly, in all
material respects, the financial position of Network Plus, Inc., a wholly owned
subsidiary of Network Plus Corp., at December 31, 1997 and 1996, and the results
of its operations and its cash flows for each of the three years in the period
ended December 31, 1997, in conformity with generally accepted accounting
principles. 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 generally accepted auditing standards 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.
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 24, 1998, except for the information in
Notes 12 and 15, for which the dates are
July 15, 1998 and September 3, 1998, respectively
F-2
128
NETWORK PLUS, INC.
BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
DECEMBER 31,
------------------
1997 1996
------- -------
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $ 1,502 $ 2,241
Accounts receivable, net of allowance for doubtful
accounts of $926 and $850, respectively................ 16,927 14,974
Marketable securities..................................... 65 62
Investments............................................... 9,500 2,093
Prepaid expenses.......................................... 415 308
Other current assets...................................... 112 93
------- -------
Total current assets.............................. 28,521 19,771
PROPERTY AND EQUIPMENT, NET................................. 6,957 3,075
OTHER ASSETS................................................ 103 69
------- -------
TOTAL ASSETS...................................... $35,581 $22,915
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable.......................................... $17,445 $14,023
Accrued liabilities....................................... 2,245 1,934
Revolving line of credit.................................. 4,510 2,000
Notes payable to stockholders............................. 1,755 --
Current portion of debt and capital lease obligations..... 5,694 193
------- -------
Total current liabilities......................... 31,649 18,150
LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS................ 3,623 664
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Common stock, $.01 par value, 20,000,000 shares
authorized, 10,000,000 shares issued and outstanding... 100 100
Additional paid-in capital................................ 183 183
Retained earnings......................................... 26 3,818
------- -------
Total stockholders' equity........................ 309 4,101
------- -------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY........ $35,581 $22,915
======= =======
The accompanying notes are an integral part of the financial statements.
F-3
129
NETWORK PLUS, INC.
STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
YEAR ENDED DECEMBER 31,
--------------------------------------
1997 1996 1995
---------- ---------- ----------
Revenue............................................ $ 98,209 $ 75,135 $ 49,024
Operating expenses
Costs of services................................ 78,106 57,208 35,065
Selling, general and administrative expenses..... 25,704 19,230 17,697
Depreciation and amortization.................... 994 533 276
---------- ---------- ----------
104,804 76,971 53,038
---------- ---------- ----------
Operating loss..................................... (6,595) (1,836) (4,014)
Other income (expense)
Interest and dividend income..................... 86 95 202
Interest expense................................. (557) (313) (40)
Other income, net................................ 3,917 3,529 7,859
---------- ---------- ----------
3,446 3,311 8,021
---------- ---------- ----------
Income (loss) before state income taxes............ (3,149) 1,475 4,007
Provision for state income taxes................... 42 60 312
---------- ---------- ----------
Net income (loss).................................. $ (3,191) $ 1,415 $ 3,695
========== ========== ==========
Retained earnings, beginning....................... 3,818 3,639 1,834
Distributions to stockholders...................... (601) (1,237) (1,890)
---------- ---------- ----------
Retained earnings, ending.......................... $ 26 $ 3,818 $ 3,639
========== ========== ==========
Net income (loss) per share -- basic and diluted... $ (0.32) $ 0.14 $ 0.37
========== ========== ==========
Weighted average shares outstanding -- basic and
diluted.......................................... 10,000,000 10,000,000 10,000,000
========== ========== ==========
Pro forma data (unaudited):
Historical income (loss) before income taxes....... $ (3,149) $ 1,475 $ 4,007
Pro forma provision (credit) for income taxes...... (1,094) 607 1,601
---------- ---------- ----------
Pro forma net income (loss)........................ $ (2,055) $ 868 $ 2,406
========== ========== ==========
Pro forma net income (loss) per share -- basic and
diluted.......................................... $ (0.21) $ 0.09 $ 0.24
========== ========== ==========
The accompanying notes are an integral part of the financial statements.
F-4
130
NETWORK PLUS, INC.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
YEAR ENDED DECEMBER 31,
-----------------------------
1997 1996 1995
------- ------- -------
Cash flows from operating activities:
Net income (loss)......................................... $(3,191) $ 1,415 $ 3,695
Adjustments to reconcile net income to net cash provided
by (used for) operating activities:
Depreciation and amortization.......................... 994 533 276
Provision for losses on accounts receivable............ 4,104 1,102 887
Amortization of AT&T credits........................... -- (1,810) (2,436)
Valuation of Tel-Save common stock warrants received as
consideration........................................ (3,837) (2,093) --
Gain on sale of Tel-Save common stock.................. -- (1,367) --
(Increase) decrease in assets:
Accounts receivable.................................. (6,059) (1,584) (7,967)
Prepaid expenses..................................... (107) (218) (60)
Other current assets................................. (19) 11 198
Other long-term assets............................... (34) (13) 484
(Decrease) increase in liabilities:
Accounts payable..................................... 8,022 4,146 6,727
Accrued liabilities.................................. 311 (438) 659
------- ------- -------
Net cash provided by (used for) operating
activities...................................... 184 (316) 2,463
Cash flows from investing activities:
Proceeds from sale of fixed assets..................... 9 -- --
Proceeds from sale of fixed assets to affiliate........ -- 34 535
Capital expenditures................................... (3,363) (2,135) (860)
Exercise of Tel-Save common stock warrants received as
consideration........................................ (3,570) (2,800) --
Proceeds from sale of Tel-Save common stock............ -- 4,167 --
Purchase of marketable securities...................... (3) (3) --
Proceeds from sale of marketable securities............ -- 90 141
------- ------- -------
Net cash used for investing activities............ (6,927) (647) (184)
Cash flows from financing activities:
Net proceeds from line of credit....................... 2,510 2,000 --
Proceeds from note payable............................. -- 1,000 --
Proceeds from notes payable to stockholders............ 1,755 -- --
Proceeds from sale and leaseback of fixed assets....... 3,450 -- --
Payments on debt and capital lease obligations......... (1,110) (167) (13)
Distributions to stockholders.......................... (601) (1,237) (1,890)
------- ------- -------
Net cash provided by (used for) financing
activities...................................... 6,004 1,596 (1,903)
------- ------- -------
Net increase (decrease) in cash............................. (739) 633 376
Cash at beginning of year................................... 2,241 1,608 1,232
------- ------- -------
Cash at end of year......................................... $ 1,502 $ 2,241 $ 1,608
======= ======= =======
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest............................................. $ 498 $ 298 $ 40
======= ======= =======
Income taxes......................................... $ 15 $ 243 $ 167
======= ======= =======
The accompanying notes are an integral part of the financial statements.
F-5
131
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BUSINESS ACTIVITY
Network Plus, Inc. (the "Company"), a wholly-owned subsidiary of Network
Plus Corp. (see Note 12), is a switch-based carrier and switchless reseller of
long distance telecommunications services, principally to small and medium-sized
businesses in the Northeastern and Southeastern regions of the United States.
Revenues are derived from the sale of domestic and international telephone
services, calling cards, debit cards and paging services. All revenues are
billed and collected in U.S. dollars. The Company operates two telephony
switches, located in Quincy, Massachusetts and Orlando, Florida, and contracts
with Sprint Communications Company, LP ("Sprint") to provide switching and
dedicated voice and data services for a portion of the Company's
telecommunications traffic.
CASH EQUIVALENTS
All highly liquid cash investments with maturities of three months or less
at date of purchase are considered to be cash equivalents.
REVENUE RECOGNITION AND ACCOUNTS RECEIVABLE
Telecommunication revenues and accounts receivable are recognized when
calls are completed or when services are provided. Accounts receivable include
both billed and unbilled amounts, and are reduced by an estimate for
uncollectible amounts. Unbilled amounts result from the Company's monthly
billing cycles and reflect telecommunications services provided in the 30 days
prior to the reporting date. These amounts are billed within 30 days subsequent
to the reporting date and are expected to be collected under standard terms
offered to customers.
Unbilled amounts were $7,594 and $6,310 at December 31, 1997 and 1996,
respectively.
PROPERTY AND EQUIPMENT
Property and equipment are recorded at cost and are depreciated using the
straight-line method over the estimated useful lives of the assets. Leasehold
improvements are amortized over the shorter of the lease term or the estimated
useful life of the improvements. Upon retirement or other disposition of
property and equipment, the cost and related depreciation are removed from the
accounts and the resulting gain or loss is reflected in earnings.
Long-lived assets and identifiable intangibles held and used are reviewed
for impairment whenever events or changes in circumstances indicate that the
carrying amount of the assets or intangibles may exceed the undiscounted future
net cash flow expected to be generated by such assets. If it is determined that
impairment has occurred, the asset is written down to fair value as determined
by market value or discounted cash flow.
CAPITAL LEASES
Capital leases, those leases which transfer substantially all benefits and
risks of ownership, are accounted for as acquisitions of assets and incurrences
of obligations. Capital lease amortization is included in depreciation and
amortization expense, with the amortization period equal to the estimated useful
life of the assets. Interest on the related obligation is recognized over the
lease term at a constant periodic rate.
F-6
132
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
COSTS OF SERVICES
Costs of services includes costs of origination, transport and termination
of on-net and off-net traffic, exclusive of depreciation and amortization.
INCOME TAXES
Effective March 1, 1992, the Company elected by the consent of its
stockholders to be taxed under the provisions of Subchapter S of the Internal
Revenue Code. Under those provisions, the Company does not pay corporate Federal
income taxes on its taxable income. Instead, the stockholders are liable for
individual income taxes on their share of the Company's taxable income. The
Company continues to pay state income taxes in those states that do not fully
recognize the Subchapter S provision and states that assess certain franchise
taxes.
The issuance of the preferred stock (see Note 15) terminated Network Plus
Corp.'s election to be taxed under the provisions of Subchapter S of the
Internal Revenue Code. Accordingly, these financial statements present, on a pro
forma basis, Federal and state income taxes assuming the Company had been a C
Corporation for all periods presented.
CONCENTRATION OF RISK
Financial instruments that potentially subject the Company to
concentrations of credit risk consist primarily of trade accounts receivable. In
addition, risk exists in cash deposited in banks that may, at times, be in
excess of FDIC insurance limits. Cash balances are managed daily to reduce
revolving credit borrowings. The trade accounts receivable risk is limited due
to the breadth of entities comprising the Company's customer base and their
dispersion across different industries and geographical regions. The Company
evaluates the creditworthiness of customers, as appropriate, and maintains an
adequate allowance for potential uncollectible accounts.
EARNINGS (LOSS) PER SHARE
The Company computes and reports earnings per share in accordance with the
provisions of SFAS No. 128, "Earnings Per Share". The computations of basic and
diluted earnings (loss) per common share are based upon the weighted average
number of common shares outstanding and potentially dilutive securities.
Potentially dilutive securities include convertible preferred stock, stock
options and warrants. There were no potentially dilutive securities outstanding
during 1997, 1996 or 1995.
Unaudited pro forma net loss per share reflecting the Company's conversion
from an S Corporation to a C Corporation is presented using an estimated
effective income tax rate of approximately 36% to 40%.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"), which is effective for fiscal years beginning after December 15, 1997,
including interim periods. SFAS 130
F-7
133
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
requires the presentation of comprehensive income and its components.
Comprehensive income presents a measure of all changes in equity that result
from recognized transactions and other economic events during the period other
than transactions with stockholders. The Company will adopt SFAS 130 in the
first quarter of 1998 and does not expect comprehensive income to differ from
reported net income.
In July 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures About Segments of an
Enterprise and Related Information" ("SFAS 131"), which is effective for fiscal
years beginning after December 15, 1997. Interim reporting disclosures are not
required in the first year of adoption. SFAS 131 specifies revised guidelines
for determining an entity's operating segments and the type and level of
operating information to be disclosed. SFAS 131 changes current practice under
SFAS 14 by establishing a new framework on which to base segment reporting. The
management approach described in SFAS 131 expands the required disclosures for
each segment. The Company will adopt SFAS 131 in its year ending December 31,
1998, and has yet to determine the impact of such adoption on the reporting of
its results of operations as currently presented.
In March 1998, 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". The Company does not believe
that this pronouncement will have a material impact on its business or results
of operations.
RECLASSIFICATIONS
Certain amounts in the financial statements for prior years have been
reclassified to conform with the current year presentation. Such
reclassifications had no effect on previously reported results of operations.
2. RELATED PARTY TRANSACTIONS
In December 1997, the Company's stockholders made loans to the Company
totaling $1,755. Interest on the loans accrues at the prevailing prime rate
(8.5% at December 31, 1997) and is payable monthly. There is no required period
for principal repayment. The loans were repaid in May 1998 and, accordingly,
have been classified as a current liability in the accompanying balance sheet.
The Company had a service arrangement through May 1997 with a marketing
company, the controlling stockholders of which include the Company's
stockholders. The marketing company provided services relative to establishing,
training and expanding the Company's sales organization. For the years ending
December 31, 1997, 1996 and 1995, the amounts paid to the marketing company were
$55, $132 and $197, respectively.
Office space, located in Quincy, Massachusetts, is leased from a trust, the
beneficiaries of which are the stockholders of the Company (see Note 11). The
Company makes monthly rental payments of $36. In each of the years ending
December 31, 1997, 1996, and 1995, the amount paid to the trust was $431.
F-8
134
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
3. MARKETABLE SECURITIES
Marketable securities are as follows:
DECEMBER 31, 1997 DECEMBER 31, 1996
-------------------- --------------------
COST FAIR VALUE COST FAIR VALUE
------ ---------- ------ ----------
U.S. obligations.................................. $ 3 $ 3 $ 3 $ 3
Other securities.................................. 62 62 59 59
------ ------ ------ ------
$ 65 $ 65 $ 62 $ 62
====== ====== ====== ======
4. INVESTMENTS AND TRANSFER OF CUSTOMERS
In 1995, the Company provided long distance services to certain customers
("DNS Customers") pursuant to an AT&T Distributed Network Services Resale
Contract (the "DNS Contract"). In June 1995, the Company transferred the DNS
Contract to EqualNet Holdings Corp. for cash totaling approximately $8,422, and
EqualNet Holdings Corp. became the provider of long distance services to the DNS
Customers. Prior to the time of this transaction, there was no value recorded in
the financial statements related to the DNS Customers. Concurrent with the
transfer of the DNS Contract, the Company's obligations to AT&T pursuant to the
DNS Contract were terminated and there were no continuing obligations between
the Company and EqualNet Holdings Corp. Accordingly, the $8,422 was recognized
as miscellaneous income when received.
In a separate transaction in 1995, the Company transferred (the "Transfer")
certain customers to whom it provided long distance and toll free
telecommunications services pursuant to certain AT&T resale contracts (the "AT&T
contracts") to Tel-Save Holdings, Inc. ("Tel-Save"). Concurrent with the
Transfer, the Company's obligations to AT&T under the AT&T contracts were
terminated without obligation or liability on behalf of the Company. Prior to
the time of this transaction, there was no value recorded in the financial
statements related to these customers. In exchange for the Transfer, the Company
received four separate warrants to purchase a total of 1,365,000 shares of
Tel-Save common stock at an exercise price of $4.67 per share (after reflecting
stock splits through December 31, 1997). Each warrant vested to the Company
separately based on the retail revenue generated by Tel-Save with respect to the
transferred customers, which had to exceed specified levels for three
consecutive months. The warrants expired at various dates through 1997. In
addition to the Warrant Agreements, the Company was subject to a Voting Rights
Agreement whereby Tel-Save retained the right to hold and vote the stock until
the point in time when the Company informed Tel-Save it wished to sell the
stock. Upon receiving such notice from the Company, Tel-Save was obligated to
either purchase the stock at the price offered by the Company or, alternatively,
was to deliver the common stock certificates to the Company.
In 1996, the vesting requirements were met to exercise the first three
warrants. The vesting requirement for the first warrant was met at the end of
the third quarter of 1996, entitling the Company to purchase 600,000 shares of
Tel-Save common stock. The Company exercised this warrant and sold the related
common stock, which had previously been registered, resulting in net proceeds
and other income of $1,370 in the third quarter of 1996.
F-9
135
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
The vesting requirements with respect to the second and third warrants were
met in November 1996. The second warrant entitled the Company to purchase
300,000 shares of Tel-Save common stock prior to January 8, 1997. The third
warrant entitled the Company to purchase 150,000 shares of Tel-Save Common stock
prior to June 10, 1997. The warrants were valued upon vesting at approximately
$2,093 using the Black-Scholes valuation model. The significant assumptions in
the valuation model were an interest rate of 5.1%, warrant lives reflecting the
respective expiration periods, expected volatility of 50% and no dividend rate.
At December 31, 1996, the warrants had not yet been exercised and were
classified as investments. The value of the warrants at December 31, 1996 was
the fair value recorded by the Company at the date of vesting. Other income of
$2,093 related to the second and third warrants was recognized in the fourth
quarter of 1996. On January 6, 1997, the Company exercised the second and third
warrants and paid Tel-Save the total exercise price of $2,100.
The vesting requirement with respect to the fourth warrant was met in June
1997, entitling the Company to purchase 315,000 shares of Tel-Save common stock.
The fourth warrant was valued upon vesting at approximately $3,415 using
Black-Scholes valuation model. The significant assumptions in the valuation
model were an interest rate of 5.1%, a warrant life reflecting the June 1997
expiration period, expected volatility of 50% and no divdend rate. On June 4,
1997, the Company exercised the warrant, paid Tel-Save the exercise price of
$1,470 and recorded other income of approximately $3,415.
On November 7, 1997, Tel-Save filed a registration statement with the SEC,
listing the Company as a selling shareholder with respect to 765,000 shares (the
total shares purchased by the Company, after reflecting stock splits, under the
second, third and fourth warrants). Following the registration of the common
stock, the Company intended to immediately sell the shares of Tel-Save, which
had a market value of approximately $16,600 at that date, as it had done
previously with the first warrant. Accordingly, all activities necessary for the
transfer of the certificates were completed and the Company issued a demand to
Tel-Save for the common stock certificates or, alternatively, requested that
Tel-Save purchase the shares. Throughout the remainder of the fourth quarter,
Tel-Save refused to deliver the common stock certificates to the Company.
In order to take physical possession of the Tel-Save common stock
certificates, the Company filed a lawsuit against Tel-Save in January 1998. On
June 24, 1998, a settlement agreement was signed between the parties pursuant to
which the Company received a total of $9,500 from Tel-Save. As part of the
settlement, all 765,000 shares were either returned to or repurchased by Tel-
Save. Following the June 1998 settlement, there are no continuing obligations
between the parties. Accordingly, the Company's investment in Tel-Save at
December 31, 1997 was valued at the final negotiated payment. This settlement
resulted in approximately $422 of other income, recorded in the fourth quarter
of 1997.
F-10
136
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
5. PROPERTY AND EQUIPMENT
DECEMBER 31,
ESTIMATED ------------------
USEFUL LIFE 1997 1996
------------- ------- -------
Switching equipment................................... 5 years $ 4,004 $ 1,513
Computer equipment.................................... 3-5 years 2,756 948
Office furniture and equipment........................ 7 years 1,272 1,157
Purchased software.................................... 3 years 694 275
Motor vehicles........................................ 5 years 174 175
Leasehold improvements................................ Term of lease 130 92
------- -------
9,030 4,160
Less accumulated depreciation and amortization........ (2,073) (1,085)
------- -------
$ 6,957 $ 3,075
======= =======
In August 1997, upon review of the Company's experience and expectations
for upgrades and replacement of equipment, including information gathered during
the process of financing such equipment, the Company changed its estimate of the
useful life of its switching equipment from 12 years to 5 years. The Company
also reviewed publicly available industry data on telecommunications equipment,
which confirmed that the estimate of useful lives of the Company's
telecommunications equipment, which was entirely switching equipment at that
time, reasonably approximated 5 years. The Company also assessed that there had
been no significant decline in the market value of its switching equipment since
purchased and that the market value exceeded the net book value of the equipment
at the time of the change in estimate. This was confirmed by the Company's
ability to enter into a sale and leaseback of the switches for the approximate
book value, completed at the same time as the change in estimate.
Depreciation expense in 1997 was approximately $136 more than what would
have otherwise been reported had the change in estimate not been made. Annual
depreciation expense related to these assets will be approximately $407 more
through 2002 than what would have otherwise been reported had the change not
been made.
In November 1997, the Company entered into a sale and leaseback of its
switching equipment. The equipment was sold at book value, which approximates
market value, and, consequently, no gain or loss was recorded on the sale. The
Company has the right to reacquire the equipment at the end of the lease's
five-year term.
6. ACCRUED LIABILITIES
Accrued liabilities consist of the following:
DECEMBER 31,
----------------
1997 1996
------ ------
Accrued interest......................................... $ 60 $ 14
Accrued salaries, wages, commissions and related taxes... 297 445
Customer deposits........................................ 361 125
Accrued income and franchise taxes....................... 766 879
Accrued taxes other than income and franchise............ 238 375
Other accrued liabilities................................ 523 96
------ ------
$2,245 $1,934
====== ======
F-11
137
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
7. REVOLVING CREDIT AGREEMENT
The Company has a revolving line of credit with Fleet National Bank
("Fleet") for borrowings up to $7,000, including letters of credit, which
expires on May 31, 1998. Availability in excess of $5,000 is based upon a
percentage of accounts receivable. Interest is payable monthly at the bank's
prime rate or available LIBOR options. The revolving line of credit requires the
Company to meet certain debt service, liquidity and tangible net worth
covenants. At December 31, 1997, cash borrowings under the line of credit
totalled $4,510 and letters of credit issued in the ordinary course of business
totalled $120. At December 31, 1996, cash borrowings under the line totalled
$2,000 and there were no outstanding letters of credit. The interest rate on
such borrowings was 8.5% at December 31, 1997 and 8.25% at December 31, 1996.
The maximum borrowings under the agreement in 1997 and 1996 were $5,000 and
$3,000, respectively.
On May 1, 1998, the Company entered into a new revolving credit agreement
with Fleet, which allows for up to $23 million of borrowings, based upon a
percentage of accounts receivable. The new agreement has a term of three years.
Interest is payable monthly at Fleet's prime rate or available LIBOR options.
The revolving credit agreement requires the Company to meet certain gross
margin, operating income and tangible net worth covenants. All outstanding notes
payable were paid in full with proceeds from the new facility.
8. DEBT AND CAPITAL LEASE OBLIGATIONS
Debt and capital lease obligations consist of the following:
DECEMBER 31,
------------------
1997 1996
------- -------
Notes payable.......................................... $ 4,600 $ 855
Capital lease obligations.............................. 4,717 2
------- -------
9,317 857
Less current portion................................... (5,694) (193)
------- -------
$ 3,623 $ 664
======= =======
The Company issued a promissory note, dated December 1, 1997, to Sprint for
repayment of $4,600 previously classified as accounts payable. Monthly principal
payments are required from February 1998 through the note's maturity on
September 1, 1998. Interest accrues at a fixed rate of 9.75% per annum on the
unpaid principal balance and is payable monthly. The promissory note and accrued
interest were paid in full on May 1, 1998.
In January 1996, the Company entered into a five-year term loan agreement
in the amount of $1,000 at a fixed rate of 8.11% per year, collateralized by
switching equipment. This loan was repaid in October 1997. At December 31, 1996,
the unpaid principal on the loan was $846.
The Company's capital leases contain various covenants which, among other
things, require the Company to maintain specified ratios of total liabilities to
net worth and to meet certain net income requirements.
9. LEASE COMMITMENTS
The Company has entered into noncancellable operating leases for office
space in several locations in the eastern United States. The leases have
termination dates through 2003 and require the payment of various operating
costs including condominium fees. Rental expense related to the
F-12
138
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
leases for the years ended December 31, 1997, 1996 and 1995 were $733, $688 and
$501, respectively.
Minimum lease payments for the next five years and thereafter are as
follows:
YEAR ENDED DECEMBER 31, CAPITAL LEASES OPERATING LEASES
- ----------------------------------------------------- -------------- ----------------
1998................................................. $ 1,254 $ 684
1999................................................. 1,368 630
2000................................................. 1,230 346
2001................................................. 817 88
2002................................................. 750 90
Thereafter........................................... -- 75
------- -------
Total minimum lease payments......................... $ 5,419 $ 1,913
=======
Less imputed interest................................ (702)
-------
Present value of minimum lease payments.............. 4,717
Less current portion................................. (1,094)
-------
Long-term capital lease obligations.................. $ 3,623
=======
Property and equipment under capital leases are as follows:
DECEMBER 31,
--------------
1997 1996
------ ----
Switching equipment......................................... $3,837 $--
Computer equipment.......................................... 1,527 --
Office equipment............................................ -- 3
------ ---
5,364 3
Less accumulated amortization............................... (515) (3)
------ ---
$4,849 $--
====== ===
10. UNEARNED CREDITS
In 1993 and 1994, the Company, through special sales promotions offered
through AT&T on three-year service contracts, received cash based on maintaining
annual sales commitment levels over a specific dollar amount. The total amounts
received from the AT&T promotions were initially amortized over the three-year
length of each contract, which approximated the achievement of required sales
commitment levels. During 1996, all contracts concluded or were terminated
without continuing liability to the Company. Upon termination, any remaining
unearned credits were recorded in income. Accordingly, all amounts were
amortized prior to 1997. Amortization of these credits included in revenue in
1996 and 1995 was $1,810 and $2,436, respectively.
11. COMMITMENTS AND CONTINGENCIES
The Company is contingently liable as a guarantor on a bank loan made to
the trust from whom the Company leases office space in Quincy, Massachusetts
(see Note 2). The outstanding balance of the loan at December 31, 1997 and 1996
is $1,486 and $1,546, respectively.
F-13
139
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
12. STOCKHOLDERS' EQUITY
On July 15, 1998, the stockholders of the Company created Network Plus
Corp. ("NP Corp."), which was incorporated in the State of Delaware. NP Corp.
expects to elect to be taxed under the provisions of Subchapter S of the
Internal Revenue Code. NP Corp. became the owner of 100% of the issued and
outstanding common stock of the Company on July 15, 1998, the date on which the
stockholders of the Company contributed their ownership interest in the Company
totaling 100 shares of common stock in return for 10,000,000 shares of common
stock, representing 100% of the ownership interest of NP Corp. These
transactions were initiated by the stockholders of the Company to achieve a
number of business objectives including an increase in the number of shares of
common stock authorized for issuance and issued and outstanding. The Company has
accounted for the effects of these transactions as a 100,000-for-1 stock split
and retroactively restated the accompanying financial statements to reflect
these transactions.
COMMON STOCK
The certificate of incorporation of NP Corp. authorizes the issuance of up
to 20,000,000 shares of $.01 par value common stock. There are 10,000,000 shares
of common stock issued and outstanding and held of record by two stockholders as
of July 15, 1998. The holders of common stock are entitled to receive dividends
when and as dividends are declared by the Board of Directors of NP Corp. out of
funds legally available therefor, provided that if any shares of preferred stock
are at the time outstanding, the payment of dividends on the common stock or
other distributions may be subject to the declaration and payment of dividends
on outstanding shares of preferred stock. Holders of common stock are entitled
to one vote per share on all matters submitted to a vote of the stockholders,
including the election of directors. Upon any liquidation, dissolution or
winding up of the affairs of NP Corp., whether voluntary or involuntary, any
assets remaining after the satisfaction in full of the prior rights of creditors
and the aggregate liquidation preference of any preferred stock then outstanding
will be distributed to the holders of common stock ratably in proportion to the
number of shares held by them. The common stock is not publicly traded.
PREFERRED STOCK
Under the certificate of incorporation of NP Corp., the Board of Directors
has the authority to issue up to 1,000,000 shares of $.01 par value preferred
stock from time to time in one or more series with such preferences, terms and
rights as the Board of Directors may determine without further action by the
stockholders of NP Corp. Accordingly, the Board of Directors has the power to
establish the provisions, if any, relating to dividends, voting rights,
redemption rates, sinking funds, liquidation preferences and conversion rights
for any series of preferred stock issued in the future. There are currently no
shares of preferred stock outstanding.
STOCK-BASED COMPENSATION PLANS
On July 15, 1998, NP Corp. adopted the 1998 Stock Incentive Plan (the "1998
Incentive Plan"). The 1998 Incentive Plan provides for the grant of stock-based
awards to employees, officers and directors of, and consultants or advisors to,
NP Corp. Under the 1998 Incentive Plan, the Company may grant options that are
intended to qualify as incentive stock options ("incentive stock options")
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), options not intended to qualify as incentive stock options
("non-statutory options"), restricted stock and other stock-based awards.
Incentive stock options may be granted only to employees of NP Corp. or its
subsidiaries. A total of 1,400,000 shares of common stock may be issued upon the
exercise of options or other awards granted under the 1998 Incentive Plan. The
number of shares
F-14
140
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
with respect to which awards may be granted to any employee under the 1998
Incentive Plan may not exceed 700,000 during any calendar year. The
exercisability of options or other awards granted under the 1998 Incentive Plan
may, in certain circumstances, be accelerated in connection with an Acquisition
Event (as defined in the 1998 Incentive Plan). Options and other awards may be
granted under the 1998 Incentive Plan at exercise prices that are equal to, less
than or greater than the fair market value of NP Corp.'s common stock, and the
Board generally retains the authority to reprice outstanding options. The 1998
Incentive Plan expires in July 2008, unless sooner terminated by the Board.
On July 15, 1998, NP Corp. authorized the grant of a total of 741,140
options to purchase NP Corp. common stock at exercise prices at or above the
fair market value of NP Corp.'s common stock, as determined by its Board of
Directors. The options, when issued, will generally vest ratably over a period
of four years. NP Corp. and the Company intend to adopt the accounting
provisions of Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees", and the disclosure-only provisions of Statement of
Financial Accounting Standards No. 123, "Accounting for Stock Based
Compensation". Accordingly, the Company's or NP Corp.'s results of operations
are not expected to be materially affected by the options granted to date under
this plan.
On July 15, 1998, NP Corp. adopted the 1998 Director Stock Option Plan (the
"Director Plan"). Under the terms of the Director Plan, 5,000 shares of common
stock will be granted to each non-employee director upon his or her initial
election to the Board of Directors. Annual options to purchase 2,500 shares of
common stock will also be granted to each non-employee director on the date of
each annual meeting of stockholders, or on August 1 of each year if no annual
meeting is held by such date. Options granted under the Director Plan will vest
in four equal annual installments beginning on the first anniversary of the date
of grant. The exercisability of these options will be accelerated upon the
occurrence of an Acquisition Event (as defined in the Director Plan). The
exercise price of options granted under the Director Plan is equal to the fair
market value of the common stock on the date of grant. A total of 100,000 shares
of common stock may be issued upon the exercise of stock options granted under
the Director Plan. No options have been granted under this plan.
DIVIDEND
On July 15, 1998, the Board of Directors of NP Corp. declared a dividend in
the aggregate amount of $5,000. As a result, it is anticipated that $2,500 will
be distributed to each of the stockholders of NP Corp. Following receipt of the
dividend, one stockholder will loan the Company $1,875 (representing the
distribution to that stockholder, net of the estimated tax liability resulting
from such distribution). Interest will accrue at Fleet's prime rate, and
interest and principal will be payable 10 days after redemption of the Series A
Preferred Stock.
13. MAJOR SUPPLIER
The Company has an agreement with Sprint to provide switching and dedicated
voice and data services. At expiration or any time prior, the Company can seek
to renew all material aspects of the agreement with Sprint. In the event that
renewal does not occur, the Company may be able to negotiate equally beneficial
terms with other major telecommunications companies. Should neither of these
alternatives be possible, there could be material adverse implications for the
Company's financial position and operations. Management's experience has been to
renegotiate agreements annually to ensure receiving competitive pricing, and
management believes the Company will be able to continue to renegotiate the
agreements. The current agreement was renegotiated, effective February 1998, and
will expire in February 2000.
F-15
141
NETWORK PLUS, INC.
NOTES TO FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
14. EMPLOYEE BENEFIT PLAN
The Company sponsors a 401(k) and profit sharing plan (the "Plan") which is
open to all eligible employees under the Plan's provisions. The terms of the
Plan allow the Company to determine its annual profit sharing contribution.
There were no Company contributions to the Plan in 1997 or 1996. The Company's
contribution to the Plan in 1995 was $175.
15. SUBSEQUENT EVENT
On September 3, 1998, NP Corp. (see Note 12) issued 40,000 shares of 13.5%
Series A Cumulative Preferred Stock Due 2009, warrants to purchase, for $.01 per
share, 310,000 shares of NP Corp.'s common stock ("Initial Warrants") and rights
to receive warrants to purchase 600,000 shares of NP Corp. common stock at an
exercise price of $.01 per share ("Contingent Warrants"), resulting in proceeds
to NP Corp. of $37,500, net of issuance costs of $2,500. The Contingent Warrants
entitle the holders of the preferred stock to receive annually, beginning on
September 1, 1999, warrants to purchase approximately 1.36 shares of the
Company's common stock for each share of preferred stock. The Warrants vest on
September 1, 2000 subject to acceleration upon the occurrence of certain events.
A total value of $4,360 was ascribed to the Initial Warrants, net of issuance
costs of $290, and was accounted for as a separate component of additional
paid-in capital. The value ascribed to the Initial Warrants was recorded as a
discount to the preferred stock, which will be accreted to the preferred stock
balance over the period from date of issuance through the date of mandatory
redemption (September 1, 2009). The value ascribed to the Contingent Warrants
was de minimis. The Company will record a dividend for an amount equal to the
fair value of the warrants based upon future vesting. Through September 3, 1998,
NP Corp.'s activities consist principally of the issuance of its preferred stock
and warrants.
The issuance of the preferred stock terminated NP Corp.'s election to be
taxed under the provisions of Subchapter S of the Internal Revenue Code.
Accordingly, NP Corp. will provide for and report Federal and state income
taxes, if any.
F-16
142
NETWORK PLUS CORP.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $26,804 $ 1,502
Accounts receivable, net of allowance for doubtful
accounts of $444 and $926, respectively................ 14,916 16,927
Marketable securities..................................... 67 65
Investments............................................... -- 9,500
Prepaid expenses.......................................... 1,163 415
Other current assets...................................... 172 112
------- -------
Total current assets.............................. 43,122 28,521
PROPERTY AND EQUIPMENT, NET................................. 10,659 6,957
OTHER ASSETS................................................ 396 103
------- -------
TOTAL ASSETS...................................... $54,177 $35,581
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
CURRENT LIABILITIES
Accounts payable.......................................... $15,100 $17,445
Accrued liabilities....................................... 2,645 2,245
Revolving line of credit.................................. -- 4,510
Notes payable to stockholders............................. -- 1,755
Current portion of debt and capital lease obligations..... 4,025 5,694
------- -------
Total current liabilities......................... 21,770 31,649
LONG-TERM DEBT AND CAPITAL LEASE OBLIGATIONS................ -- 3,623
LONG-TERM NOTE PAYABLE TO STOCKHOLDER....................... 1,875 --
COMMITMENTS AND CONTINGENCIES
REDEEMABLE PREFERRED STOCK
13.5% Series A cumulative due 2009, $.01 par value, 50,000
shares authorized, 40,000 shares issued and outstanding
(liquidation preference of $1,000 per share)........... 33,639 --
STOCKHOLDERS' EQUITY (DEFICIT)
Common stock, $.01 par value, 20,000,000 shares
authorized, 10,000,000 shares issued and outstanding... 100 100
Additional paid-in capital................................ -- 183
Warrants.................................................. 4,359 --
Retained earnings (accumulated deficit)................... (7,566) 26
------- -------
Total stockholders' equity (deficit).............. (3,107) 309
------- -------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY
(DEFICIT)....................................... $54,177 $35,581
======= =======
The accompanying notes are an integral part of the unaudited interim
consolidated financial statements.
F-17
143
NETWORK PLUS CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
------------------------- -------------------------
1998 1997 1998 1997
----------- ----------- ----------- -----------
Revenue............................. $ 27,283 $ 24,540 $ 79,588 $ 73,921
Operating expenses
Costs of services................. 20,406 19,753 59,234 58,193
Selling, general and
administrative expenses........ 8,164 5,803 20,099 16,370
Depreciation and amortization..... 498 257 1,449 581
----------- ----------- ----------- -----------
8,662 6,060 21,548 16,951
----------- ----------- ----------- -----------
Operating loss...................... (1,785) (1,273) (1,194) (1,223)
Other income (expense)
Interest and dividend income...... 50 17 62 77
Interest expense.................. (203) (153) (781) (330)
Other income, net................. 32 35 69 3,487
----------- ----------- ----------- -----------
(121) (101) (650) 3,234
----------- ----------- ----------- -----------
Net income (loss) before income
taxes............................. (1,906) (1,374) (1,844) 2,011
Provision for income taxes.......... 296 17 430 42
----------- ----------- ----------- -----------
Net income (loss)................... (2,202) (1,391) (2,274) 1,969
Preferred stock dividends and
accretion of offering expenses and
discount.......................... (498) -- (498) --
----------- ----------- ----------- -----------
Net income (loss) applicable to
common stockholders............... $ (2,700) $ (1,391) $ (2,702) $ 1,969
=========== =========== =========== ===========
Net income (loss) per share
applicable to common
stockholders --
basic and diluted................. $ (0.27) $ (0.14) $ (0.28) $ 0.20
=========== =========== =========== ===========
Weighted average shares outstanding
--
basic and diluted................. 10,000,000 10,000,000 10,000,000 10,000,000
=========== =========== =========== ===========
Pro forma data:
Historical income (loss) before
income taxes...................... $ (1,906) $ (1,374) $ (1,844) $ 2,011
Pro forma provision (credit) for
income taxes...................... (686) (495) (664) 804
----------- ----------- ----------- -----------
Pro forma net income (loss)......... (1,220) (879) (1,180) 1,207
Historical preferred stock dividends
and accretion of offering expenses
and discount...................... (498) -- (498) --
----------- ----------- ----------- -----------
Pro forma net income (loss)
applicable to common
stockholders...................... $ (1,718) $ (879) $ (1,678) $ 1,207
=========== =========== =========== ===========
Pro forma net income (loss) per
share applicable to common
stockholders --
basic and diluted................. $ (0.17) $ (0.09) $ (0.17) $ 0.12
=========== =========== =========== ===========
The accompanying notes are an integral part of the unaudited interim
consolidated financial statements.
F-18
144
NETWORK PLUS CORP.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
RETAINED TOTAL
ADDITIONAL EARNINGS STOCKHOLDERS'
COMMON PAID-IN (ACCUMULATED EQUITY
STOCK CAPITAL WARRANTS DEFICIT) (DEFICIT)
------ ---------- -------- ------------ -------------
Balance at December 31, 1997......... $100 $183 $ -- $ 26 $ 309
Net Loss............................. (2,274) (2,274)
Distributions to Stockholders........ (3) (3)
Common Stock Dividends............... (5,000) (5,000)
Issuance of 310,000 Warrants......... 4,359 4,359
Dividends on Preferred Stock......... (183) (267) (450)
Accretion of Preferred Stock Offering
Expenses and Discount.............. (48) (48)
---- ---- ------ ------- -------
Balance at September 30, 1998........ $100 $ -- $4,359 $(7,566) $(3,107)
==== ==== ====== ======= =======
The accompanying notes are an integral part of the unaudited interim
consolidated financial statements.
F-19
145
NETWORK PLUS CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
NINE MONTHS
ENDED SEPTEMBER 30,
--------------------
1998 1997
-------- --------
Cash flows from operating activities:
Net loss.................................................. $(2,274) $ 1,969
Adjustments to reconcile net loss to net cash provided by
(used for) operating activities:
Depreciation and amortization............................. 1,449 581
Gain on disposal of fixed assets.......................... (8) --
Exercise of Tel-Save common stock warrants................ -- (3,570)
Provision for losses on accounts receivable............... 1,264 1,039
(Increase) decrease in assets:
Accounts receivable.................................... 747 (4,330)
Prepaid expenses....................................... (748) (416)
Other current assets................................... (60) 7
Other long-term assets............................... (293) (84)
(Decrease) increase in liabilities:
Accounts payable....................................... (2,344) 7,748
Accrued liabilities.................................... 400 (406)
------- -------
Net cash provided by (used for) operating
activities.......................................... (1,867) 2,538
Cash flows from investing activities:
Proceeds from disposal of fixed assets.................... 17 9
Capital expenditures...................................... (5,160) (3,035)
Exercise of Tel-Save common stock warrants received as
consideration.......................................... -- (3,415)
Refund of exercise price of Tel-Save common stock
warrants............................................... 1,470 --
Proceeds from sale of Tel-Save common stock............... 8,030 --
Purchase of marketable securities......................... (2) (1)
------- -------
Net cash used for investing activities............... (4,355) (6,442)
Cash flows from financing activities:
Net proceeds from (payments on) line of credit............ (4,510) 3,000
Net proceeds from preferred stock offering................ 37,500 --
Payments on debt and capital lease obligations............ (5,293) (1,698)
Net proceeds from notes payable to stockholders........... 120 --
Proceeds from sale and leaseback of fixed assets.......... -- 1,522
Distributions to stockholders............................. (5,003) (299)
------- -------
Net cash provided by financing activities............ 22,814 2,525
------- -------
Net increase (decrease) in cash............................. 25,302 (1,379)
Cash at beginning of period................................. 1,502 2,241
------- -------
Cash at end of period....................................... $26,804 $ 862
======= =======
The accompanying notes are an integral part of the unaudited interim
consolidated financial statements.
F-20
146
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
1. BASIS OF PRESENTATION
On July 15, 1998, Network Plus Corp. (the "Company") was incorporated in
the state of Delaware. The stockholders of Network Plus, Inc. contributed 100%
of their shares to the Company in return for 10,000,000 shares of the Company's
common stock. Accordingly, Network Plus, Inc. became a wholly-owned subsidiary
of the Company.
The Company was created in order to facilitate a number of corporate
objectives including obtaining financing and issuance of stock options. On July
15, 1998, the Company granted stock options for the future purchase of the
Company's common stock. As of September 30, 1998, no options to purchase shares
had vested and, consequently, none had been exercised.
On September 3, 1998, the Company issued 40,000 shares of Series A
Preferred Stock, warrants to purchase 310,000 shares of the Company's common
stock at $.01 per share, and rights to receive warrants to purchase an
additional 610,000 shares of the Company's common stock.
As of September 30, 1998, the Company's consolidated financial statements
reflect the financial position and results of operations of its wholly-owned
subsidiary, Network Plus, Inc., and amounts ascribed to the stock options,
preferred stock and warrant transactions described above and in Note 7. All
intercompany transactions are eliminated in consolidation.
The issuance of the preferred stock terminated Network Plus Corp.'s
election to be taxed under the provisions of Subchapter S of the Internal
Revenue Code. Accordingly, Network Plus Corp. will provide for and report
Federal and state income taxes, as necessary.
The accompanying Unaudited Interim Consolidated Financial Statements of the
Company have been prepared in conformity with generally accepted accounting
principles and, in the opinion of management, include all adjustments,
consisting of normal recurring accruals, necessary for a fair presentation of
the results for the interim periods. The results of operations for the interim
periods are not necessarily indicative of the results to be expected for the
year.
These unaudited interim consolidated financial statements should be read in
conjunction with the financial statements and related notes in the Network Plus,
Inc. annual audited financial statements. The balance sheet as of December 31,
1997 has been derived from the audited financial statements as of that date.
Certain amounts in the financial statements for the prior year have been
reclassified to conform with the current year presentation. Such
reclassifications had no effect on previously reported results of operations.
Accounts receivable include unbilled amounts of $7,245 and $7,594 at
September 30, 1998 and December 31, 1997.
2. RELATED PARTY TRANSACTIONS
In September 1998, one of the Company's stockholders made a loan to the
Company for $1,875. Interest on the loan accrues at the prime rate (8.25% at
September 30, 1998). Principal and interest will be payable 10 days after
redemption of the Series A Preferred Stock (see Note 8).
Office space, located in Quincy, MA, is leased from a trust, the
beneficiaries of which are stockholders of the Company. The Company makes
monthly rental payments of $36 to the trust. In each of the nine-month periods
ended September 30, 1998 and 1997, $324 was paid to the trust.
F-21
147
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
3. PROPERTY AND EQUIPMENT
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
Telecommunications equipment................................ $ 8,877 $4,004
Computer equipment.......................................... 2,847 2,756
Office furniture and equipment.............................. 1,371 1,272
Purchased software.......................................... 653 694
Motor vehicles.............................................. 201 174
Leasehold improvements...................................... 220 130
------- ------
14,169 9,030
Less accumulated depreciation and amortization.............. (3,510) (2,073)
------- ------
$10,659 $6,957
======= ======
In August 1997, upon review of the Company's experience and expectations
for upgrades and replacement of equipment and publicly available industry data
on useful lives applied by other telecommunications companies for similar
equipment, the Company changed its estimate of the useful life of its switching
equipment from 12 years to 5 years. Depreciation expense in the nine months
ended September 30, 1997 was approximately $114 less than what would have
otherwise been reported had the change been previously made.
4. ACCRUED LIABILITIES
Accrued liabilities consist of the following:
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
Accrued interest............................................ $ 63 $ 60
Accrued salaries, wages, commissions and related taxes...... 911 297
Customer deposits........................................... 166 361
Deferred income taxes....................................... 480 --
Accrued income and franchise taxes.......................... 348 766
Accrued taxes other than income and franchise............... 34 238
Accrued agency commissions.................................. 391 340
Other accrued liabilities................................... 252 183
------ ------
$2,645 $2,245
====== ======
5. REVOLVING CREDIT AGREEMENTS
The Company had a revolving line of credit with Fleet National Bank
("Fleet") for borrowings up to $23,000 (the "Former Bank Credit Facility"),
including letters of credit, which was terminated on October 7, 1998 upon
entering into the New Revolving Credit Facility, described below. At September
30, 1998, there were no borrowings under the Former Bank Credit Facility, and
letters of credit issued in the ordinary course of business totaled $1,171.
On October 7, 1998, the Company entered into a loan agreement with Goldman
Sachs Credit Partners, L.P. and Fleet for a $60,000 revolving credit facility
(the "New Revolving Credit Facility"), concurrent with the closing of which the
Company terminated the Former Bank Credit Facility. The New Revolving Credit
Facility has a term of 18 months. Under the New Revolving Credit Facility,
F-22
148
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
$30,000 of the $60,000 is available based upon a percentage of accounts
receivable. Interest is payable monthly at one percent above the prime rate. The
New Revolving Credit Facility requires the Company, among other things, to meet
minimum levels of revenues and earnings before interest, taxes, depreciation and
amortization, and not to exceed certain customer turnover levels and debt to
revenue ratios.
6. DEBT AND CAPITAL LEASE OBLIGATIONS
Debt and capital lease obligations consist of the following:
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
Note payable................................................ $ -- $4,600
Capital lease obligations................................... 4,025 4,717
------- ------
4,025 9,317
Less current portion........................................ -- (5,694)
------- ------
$ 4,025 $3,623
======= ======
The Company issued a promissory note, dated December 1, 1997, to Sprint for
repayment of $4,600 previously classified as accounts payable. On May 1, 1998,
the remaining balance of $3,700 due on the note was repaid.
The Company received a waiver from a lender for a violation at September
30, 1998 of a financial covenant of its capital leases which requires no two
consecutive quarters with net losses. The Company has classified the entire
capital lease liability as current based on the expectation that the Company
will repay the entire obligation in December 1998. The Company expects to
refinance the obligation prior to year end 1998.
7. PREFERRED STOCK ISSUANCE
On September 3, 1998, the Company issued 40,000 shares of 13.5% Series A
Cumulative Preferred Stock Due 2009, warrants to purchase, for $0.01 per share,
310,000 shares of the Company's common stock ("Initial Warrants"), and rights to
receive additional warrants to purchase 600,000 shares of the Company's common
stock at an exercise price of $.01 per share ("Contingent Warrants"), resulting
in proceeds to the Company of $37,500, net of issuance costs of $2,500. The
Contingent Warrants entitle the holders of the preferred stock to receive
annually, beginning on September 1, 1999, warrants to purchase approximately
1.36 shares of the Company's common stock for each share of preferred stock. The
warrants vest on September 1, 2000 subject to acceleration upon the occurrence
of certain events. A total value of $4,360 was ascribed to the Initial Warrants,
net of issuance costs of $290, and was accounted for as a component of
stockholders' equity. The value ascribed to the Initial Warrants was recorded as
a discount to the preferred stock, which will be accreted to the preferred stock
balance over the period from date of issuance through the date of mandatory
redemption (September 1, 2009). The value ascribed to the Contingent Warrants
was de minimis. The Company will record a dividend for an amount equal to the
fair value of the warrants based upon future vesting. Through September 3, 1998,
the Company's activities consist principally of the issuance of its preferred
stock and warrants.
F-23
149
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
8. COMMON STOCK DIVIDEND
On September 2, 1998, the Company issued a $5,000 dividend to its
stockholders. One of the stockholders loaned the Company the stockholder's
respective share of the dividend, net of estimated taxes, in the form of a
$1,875 long-term loan (see Note 2).
9. MAJOR SUPPLIER
The Company has an agreement with Sprint to provide switching and dedicated
voice and data services. At expiration or any time prior, the Company can renew
all material aspects of the agreement with Sprint. In the event that renewal
does not occur, the Company believes it will be able to negotiate equally
beneficial terms with other major telecommunications companies. Should neither
of these alternatives be possible, there could be material adverse implications
for the Company's financial position and operations. Management's experience has
been to renegotiate agreements annually to ensure receiving competitive pricing,
and management believes the Company will be able to continue to renegotiate the
agreement. The current agreement was renegotiated, effective February 1998, and
will expire in February 2000.
10. SIGNIFICANT CUSTOMER
During the nine months ended September 30, 1998, the Company had one
customer that accounted for approximately 12% of the Company's revenue. No other
customer comprised greater than 10% of total revenue.
11. NET INCOME (LOSS) PER SHARE
The computations of basic and diluted earnings per common share are based
upon the weighted average number of common shares outstanding and potentially
dilutive securities. Potentially dilutive securities include convertible
preferred stock, stock options and warrants.
Unaudited pro forma net loss per share reflecting the Company's conversion
from an S Corporation to a C Corporation is presented using estimated effective
income tax rates and excludes a $480 tax provision for deferred taxes payable
recorded in the third quarter of 1998 resulting from the conversion.
The following table sets forth the computation of basic and diluted income
(loss) per share:
THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
-------------------------- --------------------------
1998 1997 1998 1997
----------- ----------- ----------- -----------
Net income (loss) applicable to
Network Plus Corp. common
stock -- basic and diluted..... $ (2,700) $ (1,391) $ (2,702) $ 1,969
=========== =========== =========== ===========
Shares used in net income (loss)
per share -- basic and
diluted........................ 10,000,000 10,000,000 10,000,000 10,000,000
=========== =========== =========== ===========
Net income (loss) per share
applicable to common
stockholders -- basic and
diluted........................ $ (0.27) $ (0.14) $ (0.28) $ 0.20
=========== =========== =========== ===========
Stock options to purchase 741,000 shares of common stock were not included
in the 1998 computations of diluted net income (loss) per share because
inclusion of such shares would have an anti-dilutive effect on net loss per
share, as the exercise price was at or above fair market value.
F-24
150
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
Warrants for the purchase of 310,000 shares of common stock were not included in
the 1998 computations of diluted net income (loss) per share because inclusion
of such shares would have an anti-dilutive effect on net loss per share, as the
Company reported net losses in the respective 1998 periods.
12. COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income". This Statement
establishes new rules for the reporting and display of comprehensive income and
its components; however, the adoption of this statement had no impact on the
Company's net income or stockholders' equity. There were no adjustments required
to calculate comprehensive income for either the nine months ended September 30,
1998 or 1997.
13. ACCOUNTING FOR STOCK-BASED COMPENSATION ISSUED TO EMPLOYEES AND DIRECTORS
The Company accounts for its stock option plans under Accounting Principles
Board Opinion No. 25, "Accounting for Stock Issued to Employees" and, in
accordance with the recognition requirements set forth under this pronouncement,
no compensation expense was recognized for the three months ended September 30,
1998. The Company elected to adopt Statement of Financial Accounting Standards
No. 123 ("SFAS 123"), "Accounting for Stock Based Compensation" for disclosure
purposes only.
For disclosure purposes, the fair value of each stock option grant is
estimated on the date of grant using the Black-Scholes option-pricing model with
the following weighted-average assumptions used for stock options granted in
1998: no dividends or volatility, risk-free interest rate of 6.3% and expected
life of ten years for all grants. The weighted-average fair value of the stock
options granted in 1998 was $1.85.
Under the above model, the total value of stock options granted in 1998 was
$1,366, which would be amortized ratably on a pro forma basis over the four-year
option vesting period. Had the company determined compensation cost for the
stock-based compensation plans in accordance with SFAS No. 123, the Company's
pro forma net loss and loss per share would have been:
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, 1998 SEPTEMBER 30, 1998
------------------ ------------------
Pro forma net loss applicable to common
stockholders.................................. $(2,785) $(2,857)
======= =======
Pro forma net loss per share -- basic and
diluted....................................... $ (0.28) $ (0.29)
======= =======
Stock option transactions are summarized as follows:
NUMBER EXERCISE PRICE
OF SHARES RANGE
--------- --------------
Shares under option, December 31, 1997.................... -- --
Options granted........................................... 741,140 $15.00-50.00
-------
Shares under option, September 30, 1998................... 741,140 $15.00-50.00
F-25
151
NETWORK PLUS CORP.
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
The following table summarizes information about the stock options
outstanding at September 30, 1998.
OPTIONS OUTSTANDING
-------------------------------------------------------------------------
WEIGHTED-AVERAGE WEIGHTED-AVERAGE
RANGE OF NUMBER REMAINING CONTRACTUAL WEIGHTED-AVERAGE FAIR VALUE AT
EXERCISE PRICES OUTSTANDING LIFE (YEARS) EXERCISE PRICE GRANT DATE
--------------- ----------- --------------------- ---------------- ----------------
$15.00............... 195,534 9.8 $15.00 $7.01
30.00............... 283,740 9.8 30.00 --
50.00............... 261,866 9.8 50.00 --
------- --- ------ -----
741,140 9.8 $33.11 $1.85
======= === ====== =====
At September 30, 1998 no options were exercisable and the Company had an
aggregate of 758,860 shares available for future grant under its Stock Incentive
Plan and Director Stock Option Plan.
14. NEW ACCOUNTING PRONOUNCEMENTS
In 1997, Statement of Financial Accounting Standards No. 131 ("SFAS 131"),
"Disclosures about Segments of an Enterprise and Related Information", was
issued which establishes standards for segment reporting in a full set of
general purpose financial statements. Management has not yet evaluated the
effects of this change on the reporting of its results of operations. The
Company will adopt SFAS 131 for its fiscal year ending December 31, 1998.
In March 1998, 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". The Company does not believe
that this pronouncement will have a material impact on its business or results
of operations.
In June 1998, Statement of Financial Accounting Standards No. 133 ("SFAS
133"), "Accounting for Derivative Instruments and Hedging Activities", was
issued, which establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments embedded in other
contracts, and for hedging activities. This statement is effective for the
quarters in the Company's fiscal year 2000. Had the Company implemented SFAS 133
in the current period, financial position and results of operations would not
have been affected.
F-26
152
- -------------------------------------------------------
- -------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE HEREBY, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE AS OF WHICH THE INFORMATION IS GIVEN IN THIS PROSPECTUS.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------
TABLE OF CONTENTS
PAGE
----
Notice to Investors.................... i
Forward-Looking Statements............. ii
Available Information.................. ii
Summary................................ 1
Risk Factors........................... 8
Use of Proceeds........................ 20
Dividend Policy........................ 20
Capitalization......................... 21
Selected Financial Data................ 22
Management's Discussion and Analysis of
Financial Condition and Results of
Operations........................... 25
Business............................... 40
Government Regulation.................. 62
Management............................. 71
Annual Compensation.................... 73
Certain Transactions................... 74
Stock Ownership........................ 75
Description of Capital Stock........... 76
Description of Certain Indebtedness.... 77
Description of the Series A Preferred
Stock................................ 78
Description of the Warrants............ 99
Federal Income Tax Considerations...... 105
Plan of Distribution................... 113
Selling Stockholders................... 115
Validity of the Securities............. 115
Independent Accountants................ 115
Glossary............................... G-1
Index to Financial Statements.......... F-1
- -------------------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
- -------------------------------------------------------
[Network Plus Logo]
58,276 SHARES
13.5% SERIES A
CUMULATIVE PREFERRED STOCK
DUE 2009
------------------
PROSPECTUS
, 1999
------------------
- -------------------------------------------------------
- -------------------------------------------------------
153
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses, all of which will be
borne by the Registrant, in connection with the sale and distribution of the
securities being registered. All amounts shown are estimates except for the
Securities and Exchange Commission filing fee.
SEC registration fee........................................ $ 17,192
Accounting fees and expenses................................ 30,000
Legal fees and expenses..................................... 75,000
Printing and mailing expenses............................... 25,000
Miscellaneous............................................... 2,808
--------
Total............................................. $150,000
========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final action of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against the expenses (including attorneys' fees) which he or she actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Article Eighth of the Company's
Certificate of Incorporation (the "Certificate") and the Company's By-laws (the
"By-laws") provide that the Company shall indemnify each person who is or was a
director, officer or employee of the Company (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
the Company as director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted under subsections 145(a), (b), and (c) of the DGCL or any successor
statute. The indemnification provided by the Certificate and the By-laws shall
not be deemed exclusive of any other rights to which any of those seeking
II-1
154
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Expenses (including
attorneys' fees) incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company. The
Certificate further provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders, (ii) for
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) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by the
DGCL as so amended.
The By-laws provide that the Company may purchase and maintain insurance on
behalf of its directors, officers, employees and agents against any liabilities
asserted against such persons arising out of such capacities.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Set forth below in chronological order is certain information regarding
securities issued by the Registrant since inception.
1. Upon its inception in July 1998, the Registrant issued 5,000,000
shares of Common Stock to each of Robert T. Hale and Robert T. Hale, Jr.,
in exchange for all of the issued and outstanding shares of Common Stock of
Network Plus, Inc.
2. In September 1998, the Registrant issued 40,000 Units, each
consisting of one share of 13.5% Series A Cumulative Preferred Stock due
2009 and 7.75 Initial Warrants and 15 Continent Warrants, each to purchase
one share of Common Stock, for an aggregate purchase price of $40,000,000.
The initial purchasers were Goldman, Sachs & Co., Lehman Brothers Inc, and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, who received a purchase
price discount of 3.25% for acting as underwriters in connection therewith.
Since inception, the Registrant has granted stock options to employees and
a consultant to purchase an aggregate of 741,140 shares of Common Stock with
exercise prices ranging from $15.00 to $50.00 per share.
The securities issued in the foregoing transactions were offered and sold
in reliance upon exemptions set forth in Sections 3(b) and 4(2) of the
Securities Act, or regulations promulgated thereunder, relating to sales by an
issuer not involving a public offering. In the case of certain options to
purchase shares of Common Stock, such offers and sales were made in reliance
upon an exemption from registration under Rule 701 of the Securities Act. Except
as noted above, no underwriters or placement agents were involved in the
foregoing sales of securities.
II-2
155
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NO. DESCRIPTION
- ------- -----------
3.1* -- Certificate of Incorporation of the Company.
3.2* -- Certificate of Designation of the Series A Preferred Stock.
3.3* -- By-laws of the Company.
4.1* -- Exchange and Registration Rights Agreement dated as of
September 1, 1998 between the Company and the Purchasers.
4.2* -- Purchase Agreement dated as of September 1, 1998 between the
Company and the Purchasers.
5 -- Opinion of Hale and Dorr LLP.
8 -- Opinion of Hale and Dorr LLP with respect to certain tax
matters.
10.1* -- 1998 Stock Incentive Plan
10.2* -- 1998 Director Stock Option Plan
10.3+* -- Resale Solutions Switched Services Agreement dated as of
June 21, 1998 between the Company and Sprint Communications
Company L.P.
10.4+* -- Agreement for the Provision of Fiber Optic Facilities and
Services dated as of July 17, 1998 between the Company and
Northeast Optic Network, Inc.
10.5+* -- IRU Agreement dated as of July 17, 1998 between the Company
and Qwest Communications Corporation.
10.6* -- Net Lease by and between Network Plus Realty Trust,
Landlord, and Network Plus, Inc., Tenant, dated July 1,
1993.
10.7* -- Interconnection Agreement Under Sections 251 and 252 of the
Telecommunications Act of 1996, dated September 4, 1998, by
and between New England Telephone and Telegraph Company
d/b/a Bell Atlantic -- Massachusetts and Network Plus Inc.
10.8 -- Loan and Security Agreement dated October 7, 1998 by and
between Network Plus, Inc. as Borrower, Goldman Sachs Credit
Partners L.P. and Fleet National Bank as Lenders, Fleet
National Bank as Agent and Goldman Sachs Credit Partners
L.P. as Syndication and Arrangement Agent.
10.9+* -- Master Lease Agreement, dated as of August 8, 1997, between
Chase Equipment Leasing, Inc. and Network Plus, Inc., as
amended.
12 -- Ratio of Earnings to Fixed Charges.
21* -- Subsidiaries of the Registrant.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Hale and Dorr LLP (included in their opinion
filed as Exhibit 5).
24* -- Power of Attorney.
- ---------------
* Previously filed.
+ Confidential treatment requested as to certain portions.
(b) Financial Statement Schedules:
Schedule II Valuation and Qualifying Accounts
Report of Independent Accounts on Schedule II
All other schedules have been omitted because they are not applicable or
not required or the required information is included in the financial statements
or notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of registrants
pursuant to the provisions described under Item 20 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
Securities 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
II-3
156
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 court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby further 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
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.
II-4
157
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 5 to its Registration Statement on Form S-1 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Quincy, State of Massachusetts, on February 16, 1999.
NETWORK PLUS CORP.
By: /s/ JAMES J. CROWLEY
------------------------------------
JAMES J. CROWLEY
EXECUTIVE VICE PRESIDENT AND CHIEF
OPERATING OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 5 to the Registration Statement on Form S-1 has been signed
below by the following persons, in the capacities indicated, as of February 16,
1999.
NAME TITLE
---- -----
* Chairman of the Board
- ------------------------------------------------
ROBERT T. HALE
* President, Chief Executive
- ------------------------------------------------ Officer and Director (Principal
ROBERT T. HALE, JR. Executive Officer)
/s/ JAMES J. CROWLEY Executive Vice President, Chief
- ------------------------------------------------ Operating Officer and Director
JAMES J. CROWLEY
* Vice President of Finance,
- ------------------------------------------------ Chief Financial Officer and
STEVEN L. SHAPIRO Treasurer (Principal Financial
and Accounting Officer)
* Director
- ------------------------------------------------
DAVID MARTIN
* Director
- ------------------------------------------------
JOSEPH C. MCNAY
*By: /s/ JAMES J. CROWLEY
------------------------------------------
JAMES J. CROWLEY
ATTORNEY-IN-FACT
II-5
158
SCHEDULE II
NETWORK PLUS CORP.
VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
ADDITIONS
BALANCE AT CHARGES TO DEDUCTIONS BALANCE
BEGINNING COSTS AND FROM AT END
DESCRIPTION OF PERIOD EXPENSES RESERVES(1) OF PERIOD
- ----------- ---------- ---------- ----------- ---------
Allowance for doubtful accounts:
Nine Months Ended September 30, 1998
(unaudited)............................... $926 $1,264 $1,746 $444
==== ====== ====== ====
Year Ended December 31, 1997................ $850 $4,104 $4,028 $926
==== ====== ====== ====
Year Ended December 31, 1996................ $500 $1,102 $ 752 $850
==== ====== ====== ====
Year Ended December 31, 1995................ $273 $ 887 $ 660 $500
==== ====== ====== ====
- ---------------
(1) Write-off of bad debts less recoveries.
159
REPORT OF INDEPENDENT ACCOUNTANTS ON SCHEDULE II
To the Stockholders of
Network Plus, Inc.
We have audited in accordance with generally accepted auditing standards,
the financial statements of Network Plus, Inc. included in this registration
statement and have issued our report thereon dated June 24, 1998 except for the
information in Notes 12 and 15, for which the dates are July 15, 1998 and
September 3, 1998, respectively. Our audits were made for the purpose of forming
an opinion on those statements taken as a whole. The schedule listed in Item
21(b) is the responsibility of the company's management and is presented for
purposes of complying with the Securities and Exchange Commission's rules and is
not part of the basic financial statements. This schedule has been subjected to
the auditing procedures applied in the audit of the basic financial statements
and, in our opinion, fairly states in all material respects the financial data
required to be set forth therein in relation to the basic financial statements
taken as a whole.
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 24, 1998
160
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- ------- -----------
3.1* -- Certificate of Incorporation of the Company.
3.2* -- Certificate of Designation of the Series A Preferred Stock.
3.3* -- By-laws of the Company.
4.1* -- Exchange and Registration Rights Agreement dated as of
September 1, 1998 between the Company and the Purchasers.
4.2* -- Purchase Agreement dated as of September 1, 1998 between the
Company and the Purchasers.
5 -- Opinion of Hale and Dorr LLP.
8 -- Opinion of Hale and Dorr LLP with respect to certain tax
matters.
10.1* -- 1998 Stock Incentive Plan
10.2* -- 1998 Director Stock Option Plan
10.3+* -- Resale Solutions Switched Services Agreement dated as of
June 21, 1998 between the Company and Sprint Communications
Company L.P.
10.4+* -- Agreement for the Provision of Fiber Optic Facilities and
Services dated as of July 17, 1998 between the Company and
Northeast Optic Network, Inc.
10.5+* -- IRU Agreement dated as of July 17, 1998 between the Company
and Qwest Communications Corporation.
10.6* -- Net Lease by and between Network Plus Realty Trust,
Landlord, and Network Plus, Inc., Tenant, dated July 1,
1993.
10.7* -- Interconnection Agreement Under Sections 251 and 252 of the
Telecommunications Act of 1996, dated September 4, 1998, by
and between New England Telephone and Telegraph Company
d/b/a Bell Atlantic -- Massachusetts and Network Plus Inc.
10.8 -- Loan and Security Agreement dated October 7, 1998 by and
between Network Plus, Inc. as Borrower, Goldman Sachs Credit
Partners L.P. and Fleet National Bank as Lenders, Fleet
National Bank as Agent and Goldman Sachs Credit Partners
L.P. as Syndication and Arrangement Agent.
10.9+* -- Master Lease Agreement, dated as of August 8, 1997, between
Chase Equipment Leasing, Inc. and Network Plus, Inc., as
amended.
12 -- Ratio of Earnings to Fixed Charges.
21* -- Subsidiaries of the Registrant.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Hale and Dorr LLP (included in their opinion
filed as Exhibit 5).
24* -- Power of Attorney.
- ---------------
* Previously filed.
+ Confidential treatment requested as to certain portions.