<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ENTEX INFORMATION SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 5045 13-3715291
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION
NUMBER)
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
</TABLE>
SIX INTERNATIONAL DRIVE
RYE BROOK, NEW YORK 10573
(914) 935-3600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SEE TABLE OF ADDITIONAL REGISTRANTS BELOW
------------------------
LYNNE A. BURGESS, ESQ.
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
ENTEX INFORMATION SERVICES, INC.
SIX INTERNATIONAL DRIVE
RYE BROOK, NEW YORK 10573
(914) 935-3879
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
GERALD S. TANENBAUM, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 426(b) under the Securities Act, check the following 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. [ ] ------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE MAXIMUM AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT PRICE(1) REGISTRATION FEE(2)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
12 1/2% Senior Subordinated Notes due 2006... $100,000,000 100% $100,000,000 $29,500
- ---------------------------------------------------------------------------------------------------------------------------------
Guarantees of 12 1/2% Senior Subordinated
Notes due 2006............................. (3) (3) (3) (3)
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(f)(2) under the Securities Act of 1933, as amended
(the "Securities Act").
(2) Calculated pursuant to Rule 457(f)(2) under the Securities Act.
(3) Pursuant to Rule 457(n), no registration fee is required with respect to the
Guarantees.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ADDITIONAL REGISTRANTS
<TABLE>
<CAPTION>
STATE OR OTHER PRIMARY STANDARD
JURISDICTION OF INDUSTRIAL
INCORPORATION OR CLASSIFICATION CODE I.R.S. EMPLOYER
EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER ORGANIZATION NUMBER IDENTIFICATION NO.
- ---------------------------------------------------- ---------------- ------------------- ------------------
<S> <C> <C> <C>
ENTEX Information Services of Michigan, Inc. ... Michigan 5045 38-2458313
ENTEX Information Services of Colorado, Inc. ... Colorado 5045 84-0971697
ENTEX Services, Inc. ........................... Delaware 5045 13-3804572
Erlanger Land Co., Inc. ........................ Delaware 5045 13-3648035
FCP Technologies, Inc. ......................... Delaware 5045 52-1863055
</TABLE>
The address, including zip code, and telephone number, including area code,
of the principal executive offices of the additional registrants listed above
is: c/o ENTEX Information Services, Inc., Six International Drive, Rye Brook,
New York 10573, and the telephone number at that address is (914) 935-3600.
<PAGE> 3
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 TO SELL OR THE
SOLICITATION 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 SEPTEMBER 30, 1998
PROSPECTUS
ENTEX INFORMATION SERVICES, INC.
OFFER TO EXCHANGE ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006
------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1998, UNLESS EXTENDED.
------------------------
ENTEX Information Services, Inc., a Delaware corporation (the "Company"),
hereby offers, upon the terms and subject to the conditions set forth in this
Prospectus and the accompanying Letter of Transmittal (which together constitute
the "Exchange Offer"), to exchange up to $100,000,000 aggregate principal amount
of its new 12 1/2% Senior Subordinated Notes due 2006 (the "New Notes"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like principal amount of its outstanding 12 1/2% Senior
Subordinated Notes due 2006 (the "Old Notes"), which have not been so
registered. The terms of the New Notes are identical in all material respects to
the Old Notes, except for certain transfer restrictions relating to the Old
Notes. The New Notes will evidence the same indebtedness as the Old Notes and
will be issued pursuant to, and entitled to the benefits of, the same Indenture
that governs the Old Notes (the "Indenture"). As used herein, the term "Notes"
means the Old Notes and the New Notes, treated as a single class.
The Company will accept for exchange any and all Old Notes validly tendered
and not withdrawn prior to 5:00 p.m., New York City time, on ,
1998, unless extended (as, and if, so extended, the "Expiration Date"). Tenders
of Old Notes may be withdrawn at any time prior to the Expiration Date. The
Exchange Offer is not conditioned upon any minimum principal amount of Old Notes
being tendered for exchange pursuant to the Exchange Offer. The Exchange Offer
is subject to certain other customary conditions. See "The Exchange Offer."
The New Notes will bear interest from and including the date of
consummation of the Exchange Offer. Interest on the New Notes will be payable
semi-annually in arrears on each February 1 and August 1 of each year,
commencing February 1, 1999, at the rate of 12 1/2% per annum. The New Notes
will mature on August 1, 2006. Interest on the New Notes will accrue from the
last interest payment date on which interest was paid on the Old Notes
surrendered in exchange therefor or, if no interest has been paid on the Old
Notes, from the date of original issuance of the Old Notes. The Notes will be
redeemable at the option of the Company, in whole or in part, at any time on or
after August 1, 2003, at the redemption prices set forth herein plus accrued
interest to the date of redemption. In addition, upon a Change of Control (as
defined herein) on or prior to August 1, 2000, the Company, at its option, may
redeem all but not less than all of the Notes outstanding at a redemption price
equal to 112.5% of the aggregate principal amount of the Notes so redeemed plus
accrued interest to the date of redemption. The Company, at its option, may
redeem in the aggregate up to 35% of the original principal amount of the Notes
at any time or from time to time prior to August 1, 2000, at a redemption price
equal to 112.5% of the aggregate principal amount so redeemed plus accrued
interest to the date of redemption, with the Net Proceeds (as defined herein) of
one or more Public Equity Offerings (as defined herein) of the Company, provided
that at least $65.0 million of the original principal amount of the Notes
remains outstanding immediately after the occurrence of any such redemption and
that any such redemption occurs within 90 days following the closing of any such
Public Equity Offering. See "Description of the Notes -- Optional Redemption."
(Continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE 12 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY HOLDERS PRIOR TO TENDERING THEIR OLD NOTES IN THE
EXCHANGE OFFER.
------------------------
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 , 1998.
<PAGE> 4
(Continued from cover page)
Upon a Change of Control, each holder of the Notes will be entitled to
require the Company to purchase such holder's Notes at 101% of the principal
amount thereof plus accrued interest to the date of purchase. See "Description
of the Notes -- Certain Covenants -- Change of Control Offer." In addition, the
Company will be obligated in certain instances to make an offer to purchase the
Notes at a purchase price in cash equal to 100% of the principal amount thereof
plus accrued interest to the date of purchase with the net cash proceeds of
certain asset sales. See "Description of the Notes -- Certain
Covenants -- Limitation on Certain Asset Sales."
The Notes are general unsecured obligations of the Company subordinate in
right of payment to all existing and future Senior Indebtedness (as defined
herein) of the Company, senior in right of payment to all existing and future
subordinated indebtedness of the Company and pari passu in right of payment with
all future senior subordinated indebtedness of the Company. The Notes are
unconditionally guaranteed, on an unsecured senior subordinated basis, as to
payment of principal, premium, if any, and interest, jointly and severally, by
all of the existing and future domestic Restricted Subsidiaries (as defined
herein) of the Company. See "Description of the Notes -- Guarantees." As of June
28, 1998, after giving effect to the Old Notes Offering and the application of
the net proceeds therefrom, the Company would have had outstanding $353.6
million of total Indebtedness (as defined herein), $229.3 million of which was
Senior Indebtedness and $24.3 million of which was Indebtedness subordinated to
the Notes.
The holder of each Old Note accepted for exchange will receive a New Note
having a principal amount equal to that of the surrendered Old Note. Old Notes
accepted for exchange will cease to accrue interest from and after the date of
consummation of the Exchange Offer. Holders of Old Notes accepted for exchange
will not receive any payment in respect of accrued interest on such Old Notes.
Old Notes not tendered or not accepted for exchange will continue to accrue
interest from and after the date of consummation of the Exchange Offer.
The Old Notes were issued and sold on July 29, 1998 (the "Old Notes
Offering") in a transaction exempt from the registration requirements of the
Securities Act and may not be offered or sold in the United States unless so
registered or pursuant to an applicable exemption under the Securities Act. The
New Notes are being offered hereunder in order to satisfy certain obligations of
the Company contained in the Registration Rights Agreement (as defined herein).
Based on interpretations by the staff of the Securities and Exchange Commission
(the "Commission") as set forth in no-action letters issued to third parties,
the Company believes that New Notes issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered for resale, resold and otherwise
transferred by any holder thereof (other than a holder that is an "affiliate" of
the Company within the meaning of Rule 405 under the Securities Act), without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Notes are acquired in the ordinary course
of such holder's business and such holder has no arrangement or understanding
with any person to participate in a distribution of such New Notes. However, the
Company has not sought a no-action letter with respect to the Exchange Offer and
there can be no assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer. Each holder of Old Notes,
other than a broker-dealer, must acknowledge that it is not engaged in, and does
not intend to engage or participate in, a distribution of New Notes and has no
arrangement or understanding to participate in a distribution of New Notes. Each
broker-dealer that receives New Notes for its own account pursuant to the
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Notes received in
exchange for Old Notes acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period ending on the close of business on the 180th day following
the Expiration Date, it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution."
ii
<PAGE> 5
The Company will not receive any proceeds from the Exchange Offer. The
Company will pay all the expenses incident to the Exchange Offer. In the event
the Company terminates the Exchange Offer and does not accept for exchange any
Old Notes, the Company will promptly return the Old Notes to the holders
thereof. See "The Exchange Offer."
There has previously been only a limited secondary market, and no public
market, for the Old Notes. The Old Notes are eligible for trading in The Portal
Market. The Company has been advised by the Initial Purchasers (as defined
herein) that they intend to make a market for the New Notes; however, the
Initial Purchasers are not obligated to do so, and the Company does not
currently intend to list the New Notes on any securities exchange. Any
market-making may be discontinued at any time, and there is no assurance that an
active public market for the New Notes will develop or, that if such a market
develops, that it will continue. This Prospectus may be used by the Initial
Purchasers in connection with offers and sales of the New Notes which may be
made by them from time to time in market-making transactions at negotiated
prices relating to prevailing market prices at the time of sale. The Initial
Purchasers may act as principal or agent in such transaction.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING LETTER OF TRANSMITTAL, 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 OR THE ACCOMPANYING LETTER OF
TRANSMITTAL NOR ANY EXCHANGE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
MARKET DATA USED THROUGHOUT THIS PROSPECTUS WAS OBTAINED FROM CONSULTANT'S
REPORTS AND INDUSTRY PUBLICATIONS. INDUSTRY PUBLICATIONS AND CONSULTANT'S
REPORTS GENERALLY STATE THAT THE INFORMATION CONTAINED THEREIN HAS BEEN OBTAINED
FROM SOURCES BELIEVED TO BE RELIABLE, BUT THAT THE ACCURACY AND COMPLETENESS OF
SUCH INFORMATION IS NOT GUARANTEED. THE COMPANY HAS NOT INDEPENDENTLY VERIFIED
THIS MARKET DATA.
Old Notes in the aggregate principal amount of $100 million were issued
originally in global form (the "Global Old Note"). The Global Old Note was
deposited with, or on behalf of, The Depository Trust Company, as the initial
depository with respect to the Old Notes (in such capacity, the "Depository").
The Global Old Note is registered in the name of Cede & Co., as nominee of the
Depository, and the beneficial interests in the Global Old Note are shown on,
and transfers thereof are effected only through, records maintained by the
Depository and its participants. The use of the Global Old Note to represent
certain of the Old Notes permits the Depository's participants, and anyone
holding a beneficial interest in an Old Note registered in the name of such a
participant, to transfer interests in the Old Notes electronically in accordance
with the Depository's established procedures without the need to transfer a
physical certificate. Except as provided below, the New Notes will also be
issued initially as a note in global form (the "Global New Note" and, together
with the Global Old Note, the "Global Notes") and deposited with, or on behalf
of, the Depository.
iii
<PAGE> 6
AVAILABLE INFORMATION
The Company has filed with the Commission a registration statement on Form
S-4 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement" or the "Exchange Offer Registration Statement") under
the Securities Act with respect to the New Notes offered hereby. This
Prospectus, which forms a part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. For further information with respect to
the Company and the New Notes offered hereby, reference is made to the
Registration Statement and the exhibits and schedules thereto. Any statements
made in this Prospectus concerning the provisions of certain documents are not
necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement otherwise filed
with the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Registration Statement, the exhibits forming a part thereof and
such reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: New York Regional Office, Seven World Trade
Center, 13th Floor, New York, New York 10048; and Chicago Regional Office,
Citicorp Center, 500 West Madison Street, 14th Floor, Chicago, Illinois 60601.
Copies of such material can be obtained from the Public Reference Section of the
Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains an Internet Web Site at
http://www.sec.gov that contains reports and other information.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS INCLUDES "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT, 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, THE STATEMENTS UNDER
"SUMMARY," "RISK FACTORS," "MANAGEMENT'S DISCUSSIONS AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS," "BUSINESS" AND ELSEWHERE HEREIN, REGARDING
THE COMPANY OR ANY OF THE TRANSACTIONS DESCRIBED HEREIN, INCLUDING THE TIMING,
FINANCING, STRATEGIES AND EFFECTS OF SUCH TRANSACTIONS, ARE FORWARD-LOOKING
STATEMENTS. ALTHOUGH THE COMPANY BELIEVES THAT THE EXPECTATIONS REFLECTED IN
SUCH FORWARD-LOOKING STATEMENTS ARE REASONABLE, IT CAN GIVE NO ASSURANCE THAT
SUCH EXPECTATIONS WILL PROVE TO HAVE BEEN CORRECT. 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.
iv
<PAGE> 7
SUMMARY
The following summary information is qualified in its entirety by reference
to the more detailed information and financial statements (including the notes
thereto) appearing elsewhere in this Prospectus. References contained in this
Prospectus to Fiscal 1994, Fiscal 1995, Fiscal 1996, Fiscal 1997, Fiscal 1998
and Fiscal 1999 mean the fiscal years ended July 3, 1994, July 2, 1995, June 30,
1996, June 29, 1997, June 28, 1998 and June 27, 1999, respectively. Unless the
source was specifically indicated, all industry and market share data set forth
in this Prospectus are based upon estimates by ENTEX management. As used in this
Prospectus, unless the context otherwise requires, "ENTEX" or the "Company"
refers to ENTEX Information Services, Inc., a Delaware corporation, and its
subsidiaries.
THE COMPANY
ENTEX is a leading provider of integrated personal computer ("PC")
management solutions to meet the distributed information technology systems and
end-user support requirements of Fortune 1000 companies and other large
enterprises. The Company's integrated PC management solutions include PC
Acquisition Services (multi-vendor product procurement customized to meet
specific end-user requirements); Outsourcing Services (support services for the
total PC infrastructure including network management, help desk and deskside
support, and asset management); and Network, Professional and Migration Services
(consulting and implementation services for network design, integration,
migration and conversion). ENTEX provides a single source integrated service for
its customers' PC/server platforms (system design, operations support and
product procurement) which management believes can enhance the value of their
information technology investment, significantly reduce their operating expenses
and improve management control over their existing and future information
technology systems.
The proliferation of complex PC/server network systems and support
infrastructures coupled with rapidly changing technology lifecycles has
significantly increased the management requirements and cost of distributed
information technology systems. As a result, many organizations are outsourcing
the management and support of their PC and network infrastructure needs. The
Company believes that key criteria which businesses consider when evaluating PC
and network integration service providers include the provider's ability: (i) to
deliver an integrated, cost-effective solution spanning the PC and network
lifecycle; (ii) to supply multi-vendor PC and network products customized to
specific end-user demands; and (iii) to provide consistent services on a
national basis. The Company believes its size and scope of operations, its
existing base of PC outsourcing contracts and its experience in managing various
technology platforms enable it to offer best practice methodologies which are
more effective than in-house systems which could be developed by its customers
acting on their own. Management believes its integrated PC management solutions
allow its customers to reallocate resources towards their core competencies and
enhance competitiveness with access to leading edge technology.
The Company competes in two primary markets: product procurement of PC
hardware, software and peripherals and information technology services.
Dataquest, the research division of the Gartner Group, estimated the total U.S.
market for PC hardware, software and peripherals procurement at $99 billion in
1997. According to Dataquest, this market has grown at a compound annual rate of
approximately 23% from 1994 through 1997. This growth has been due in large part
to the growth of the domestic economy, the beginning of a technology migration
to the Pentium II(TM) microprocessor, migration to new desktop and network
operating systems and increased demand for products for a mobile workforce
including laptop PCs. According to Dataquest, the total U.S. market for
information technology services is estimated to have exceeded $128 billion in
1997. Management believes this market has grown at a compound annual rate of
approximately 23% from 1994 through 1997. In the information technology service
specialties of network integration and outsourcing, Dataquest reports that the
U.S. market is estimated to have exceeded $15 billion and $24 billion,
respectively, in 1997. Management believes as corporations analyze the cost of
supporting their PC and network environments, an increasing number will rely
upon third-party systems integration and outsourcing to design, build, expand
and maintain their information technology systems.
1
<PAGE> 8
ENTEX intends to use its industry leadership in outsourcing and system
migrations to capitalize upon these trends. The Company seeks to establish
long-term relationships with large corporations that are information intensive
and require more effective management of their distributed information
technology. ENTEX provides products and/or significant services to some of the
most recognized U.S. corporations, several of which are considered technology
leaders in their respective industries, including AlliedSignal, American
Express, CIGNA, Coca-Cola, GTE, Hoffmann-La Roche, Intel, Koch Industries, KPMG
Peat Marwick, Metropolitan Life, Microsoft, Motorola, Pfizer and US West. The
Company believes that its position as a supplier to leaders in certain
industries allows it to attract leaders in a variety of other industries thereby
increasing the diversification of its customer base. The 100 largest customers
accounted for approximately 63% of total net revenues during Fiscal 1998 and no
one customer accounted for more than 6% of total net revenues in this period.
From its inception, the Company has sold customized PC-based systems to
large corporate clients through its PC Acquisition Services line of business. In
Fiscal 1995, the Company made a strategic decision to accelerate the development
of service solutions complementary to its product solutions. The Company's goal
is to increase its proportion of service revenues, which are typically
characterized by higher gross margins than those obtainable from product sales.
For Fiscal 1998, product sales accounted for 81.7% of total net revenues and
65.4% of total gross profit, while services accounted for 18.3% of total net
revenues and 34.6% of total gross profit.
ENTEX offers its customers a single source for integrated PC management
solutions, including sophisticated PC infrastructure procurement and
configuration, outsourcing and desktop migration and integration services.
- - PC Acquisition Services. The Company distributes a full range of multi-vendor
PC and network products, software and peripherals, providing its customers
with a single source for all such needs. ENTEX's product procurement solutions
are based on (i) product sourcing arrangements from the largest original
equipment manufacturers ("OEMs"), (ii) customized configuration services and
(iii) build-to-order assembly to meet specific end-user requirements. In
Fiscal 1998, approximately 91% of all products sold by the Company were
purchased directly from OEMs, including Cisco, Compaq, Digital Equipment
Corporation ("DEC"), Hewlett-Packard ("HP"), IBM, Intel, Kingston, Microsoft,
NEC, 3Com and Toshiba. The Company also provides shrink-wrapped and Volume
License Agreement ("VLA") application software enabling it to provide a
complete fully integrated hardware and software solution. The Company's
state-of-the-art, ISO 9001 certified integration center (the first in the
industry to receive ISO certification) customizes an average of 25,000 units
per month. In Fiscal 1998, over 63% of all desktop PCs, 52% of all laptop PCs
and 42% of all servers shipped by ENTEX were configured by ENTEX with
additional hardware components, customer-specific software and/or proprietary
applications. Most configured systems are pre-tested on a mirror image of the
customers' operating platform to ensure seamless and virus-free delivery and
integration with the customers' existing infrastructure. In Fiscal 1998, more
than 99% of non-configured in-stock orders were shipped same day, while 95% of
in-stock configured systems were shipped within 48 hours of order placement.
ENTEX is increasing its amount of build-to-order OEM assembly partnerships to
reduce inventory while providing greater product availability and
responsiveness to customers. The Company is currently providing build-to-order
assembly for IBM, Compaq and HP products.
- - Outsourcing Services. ENTEX provides total support for PCs, servers and
related network hardware and software including network implementation,
operation and support, warranty services, help desk and deskside support and
asset management. Management believes the Company is one of the largest
providers of PC outsourcing services to large enterprise users. As of June 28,
1998, the Company had multi-year outsourcing service contracts covering more
than 605,000 PCs and servers. The Company offers on-site and centralized
maintenance and support services to its customers with approximately 4,000 of
the Company's technical professionals on-site daily at customer locations as
of June 28, 1998. ENTEX certifies its engineers and consultants in the
installation and maintenance of multi-vendor hardware and software. The
Company also provides a centralized service center operation which includes a
24-hour help desk, a call dispatch service and a network support line, which
together handle approximately 90,000 customer calls per month. The Company has
developed best practice methodologies through managing a large, diverse
2
<PAGE> 9
installed base of PCs under corporate outsourcing arrangements which it
leverages to meet unique customer requirements. ENTEX was one of the first in
the industry to establish multi-year, performance-oriented Service Level
Agreements ("SLAs") which specify measurable support levels and benchmarks
tailored to individual customer needs. As of June 28, 1998, the Company's 100
largest outsourcing service contracts ranged from 200 to 60,000 PCs and had an
average annualized contract value of over $2.7 million. As part of its
outsourcing arrangements, ENTEX generally provides significant PC Acquisition
Services to its customers. The 100 largest outsourcing service contracts in
effect as of June 28, 1998 provided for approximately $2.54 in product
revenues for every $1.00 of services; however, the customers under such
contracts are not generally committed to purchase such products. Management
expects the volume of outsourcing contracts to accelerate as an increasing
number of large enterprises evaluate the total cost of ownership and technical
capabilities of their existing systems.
- - Network, Professional and Migration Services. The Company provides customers
with network design, implementation and integration services on a project
basis, including the design, installation and upgrade of local-area, wide-area
and enterprise networks. The Company also provides a wide range of migration
services to assist customers in transitioning from one computing environment
to another, including Microsoft Windows NT(TM) and BackOffice(TM) migrations,
local-area network migrations, desktop PC operating system migrations and
messaging migrations. The Company believes it is one of the industry leaders
in system migrations, having completed such migrations on approximately
232,000 units as of June 28, 1998. Subsequent to such date, ENTEX has
contracted for migrations on an additional 15,000 units to commence during
1998. ENTEX believes it employs one of the largest group of Microsoft
certified systems engineers to perform system migrations and upgrades to
Windows-based technology. The Company has completed some of the largest system
migrations for corporations which are leaders in their respective industries,
and the Company believes it has developed core competencies that are
leveragable over its existing customer base.
BUSINESS STRATEGY
The Company's objective is to be the premier provider of integrated PC
management solutions to meet the distributed information technology systems and
end-user support requirements of Fortune 1000 and other large enterprises. Key
elements of the Company's strategy are to:
Leverage Customer Relationships to Expand Services Provided. The Company
believes that once it has begun delivering efficiency improvements and cost
savings to a customer, it has the opportunity to enhance its relationship by
selling additional services. The Company realizes higher profit margins by
leveraging its initial marketing costs and realizing economies of scale when
providing incremental services to a customer. The Company's strategy is to
leverage existing customer relationships to expand the number of services it
provides to each customer and to increase the number of affiliated operations of
such customers to which it sells services. In Fiscal 1995, the Company had 51
customers which purchased products and services totaling at least $5 million. In
Fiscal 1998, those same customers had more than doubled their aggregate
purchases of services from $57.9 million in Fiscal 1995 to $134.7 million.
Expand Customer Base by Targeting Outsourcing and Integration
Services. The Company targets the Fortune 1000 and other large enterprises with
over 1,000 installed PCs to provide its outsourcing and integration services.
Management believes many of these companies have limited information technology
resources and legacy information technology systems and are prepared to
outsource to the Company rather than perform on their own the necessary system
upgrades and migrations to new information technology platforms. Historically,
the Company used its product procurement relationships to initiate the marketing
of outsourcing and integration services. The Company augments this strategy by
capitalizing on its industry leadership in outsourcing and system migrations by
initiating customer relationships with higher margin service offerings and
following with product procurement.
Focus Marketing on System Migrations. The Microsoft Windows NT(TM), Intel
Pentium(TM) processor-based operating platform is rapidly becoming the preferred
technology system standard for larger enterprises. ENTEX has completed PC and
server migrations on approximately 232,000 units as of June 28, 1998,
3
<PAGE> 10
including a 40,000 desktop migration transitioning one customer's business to a
32-bit Windows NT(TM) environment, which management believes is one of the
largest 32-bit migrations undertaken in the United States to date. The Company's
strategy is to leverage its experience, reputation and capabilities in
outsourcing and product procurement and its relationships with major
corporations to market the design and implementation of system migrations for
PCs and servers. In addition, the Company believes its migration projects
provide opportunities to market outsourcing services to support these new
systems, as well as procurement of equipment that is typically installed in
migration projects.
Maintain Technological Leadership by Leveraging Strategic Alliances with
Vendors. The Company's position as a leading PC systems integrator enables it
to establish and maintain strategic relationships with leading OEMs and
suppliers such as Compaq, HP, IBM and Microsoft. Such alliances provide the
Company's technical staff access to the latest product and technology
developments before commercial release, allow the Company's sales and service
personnel to regularly attend manufacturers' on-site presentations and training
and enable the Company to provide its customers with cost-effective purchasing
and financing alternatives. The Company's strategy is to continue building
technological leadership through strong vendor relationships which enhance the
Company's ability to implement and/or support the latest technologies for its
customers.
Increase Build-to-Order Assembly and Enhance Inventory Management. The
Company has been shifting the focus of its product distribution strategy from
product resale to providing value-added services including configuration and
build-to-order assembly. These value-added services enhance its vendor and
customer relationships, accelerate inventory turns and modify the inventory mix
from finished goods to more cost effective component parts. Although the
Company's inventories increased from $184.0 million as of June 29, 1997 to
$192.8 million as of June 28, 1998, or 4.8%, the Company's inventory turns
improved from 10.5x for Fiscal 1997 to 11.4x for Fiscal 1998. The increase in
inventory levels was due to additional in-transit inventories. The Company's
strategy is to continue reducing its inventory investment while improving
product availability and delivery schedules by increasing build-to-order
assembly services for several of the leading computing equipment OEMs. The
Company is currently providing build-to-order assembly for IBM, Compaq and HP
products.
Reduce Costs and Enhance Customer Service Through Centralization. The
Company invests in its infrastructure, both in terms of personnel and systems,
to increase its operating efficiency while providing high levels of customer
service at lower cost for its customers. PC acquisition, distribution and
configuration services are provided from a national integration and distribution
center, and network integration and support services are provided from a
national service center. Both national centers are located near Cincinnati,
Ohio. The Company believes its integration and distribution center provides
high-quality, build-to-order assembly and configuration services with a customer
reported error free rate of 99.7%. The Company's strategy is to continue
investing in its centralized services to gain economies of scale in operations
and enhance quality control and customer service.
ENTEX was formed in August 1993 in a management-led buyout of the
information systems business of JWP Inc. ("JWPIS"). The Company's principal
stockholders are Dort A. Cameron III, Chairman of the Company's Board of
Directors, and entities controlled by Mr. Cameron. Other equity holders of the
Company include certain executives and employees of the Company, IBM and
Microsoft.
The Company's principal executive offices are located at Six International
Drive, Rye Brook, New York. The Company's telephone number is (914) 935-3600.
4
<PAGE> 11
THE EXCHANGE OFFER
Registration Agreement........ The Old Notes were sold by the Company on July
29, 1998 (the "Original Issue Date") to CIBC
Oppenheimer Corp. and Lazard Freres & Co. LLC
(the "Initial Purchasers"), who placed the Old
Notes with certain institutional investors. In
connection therewith, the Company executed and
delivered for the benefit of the holders of the
Old Notes a registration rights agreement (the
"Registration Rights Agreement") providing for,
among other things, the Exchange Offer. See
"The Exchange Offer -- Terms of the Exchange
Offer."
Terms of the Exchange Offer... New Notes are being offered in exchange for a
like principal amount of Old Notes. Old Notes
may be exchanged only in integral multiples of
$1,000. The Company will issue the New Notes to
holders promptly following the Expiration Date.
See "Risk Factors -- Consequences of Failure to
Exchange."
Expiration Date............... 5:00 p.m. New York City time on ,
1998, unless the Exchange Offer is extended, in
which case the term "Expiration Date" means the
latest date and time to which the Exchange
Offer is extended. See "The Exchange
Offer -- Terms of the Exchange Offer."
Conditions to the Exchange
Offer......................... The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Old Notes
being tendered or accepted for exchange.
However, the Exchange Offer is subject to
certain customary conditions, which may be
waived by the Company. The Company reserves the
right to terminate or amend the Exchange Offer
at any time prior to the Expiration Date upon
the occurrence of any such condition. The
Exchange Offer is also subject to the terms and
provisions of the Registration Rights
Agreement. NO VOTE OF THE COMPANY'S
SECURITYHOLDERS IS REQUIRED TO EFFECT THE
EXCHANGE OFFER AND NO SUCH VOTE (OR PROXY
THEREFOR) IS BEING SOUGHT HEREBY. See "The
Exchange Offer -- Certain Conditions to the
Exchange Offer."
Procedures for Tendering Old
Notes......................... Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a facsimile thereof,
in accordance with the instructions contained
herein and therein, and mail or otherwise
deliver such Letter of Transmittal, or such
facsimile, together with the Old Notes, or a
Book-Entry Confirmation (as defined), as the
case may be, and any other required
documentation to Marine Midland Bank, as
exchange agent (the "Exchange Agent") at the
address set forth herein. The method of
delivery of such documentation is at the
election and risk of the holder. By executing
the Letter of Transmittal, each holder will
represent to the Company, among other things,
that (i) the New Notes acquired pursuant to the
Exchange Offer by the holder and any beneficial
owners of Old Notes are being obtained in the
ordinary course of business of the person
receiving such New Notes, (ii) neither the
holder nor such beneficial owner is
participating in, intends to participate in or
has
5
<PAGE> 12
an arrangement or understanding with any person
to participate in the distribution of such New
Notes and (iii) neither the holder nor such
beneficial owner is an "affiliate," as defined
under Rule 405 of the Securities Act, of the
Company. Each broker-dealer that receives New
Notes for its own account in exchange for Old
Notes, where such Old Notes were acquired by
such broker or dealer as a result of
market-making activities or other trading
activities (other than Old Notes acquired
directly from the Company), must acknowledge in
the Letter of Transmittal that it will deliver
a prospectus in connection with any resale of
such New Notes. See "The Exchange
Offer -- Procedures for Tendering Old Notes"
and "Plan of Distribution."
Special Procedures for
Beneficial Owners............. Any beneficial owner whose Old Notes are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
and who wishes to tender should contact such
registered holder promptly and instruct such
registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes
to tender on such owner's own behalf, such
owner must, prior to completing and executing
the Letter of Transmittal and delivering his or
her Old Notes, either make appropriate
arrangements to register ownership of the Old
Notes in such owner's name or obtain a properly
completed bond power from the registered
holder. The transfer of registered ownership
may take considerable time. See "The Exchange
Offer -- Procedures for Tendering Old Notes."
Guaranteed Delivery
Procedures.................... Holders of Old Notes who wish to tender their
Old Notes and whose Old Notes are not
immediately available or who cannot deliver
their Old Notes, the Letter of Transmittal or
any other documents required by the Letter of
Transmittal to the Exchange Agent (or comply
with the procedures for book-entry transfer)
prior to the Expiration Date must tender their
Old Notes according to the guaranteed delivery
procedures set forth in "The Exchange
Offer -- Guaranteed Delivery Procedures."
Book-Entry Transfer........... Any financial institution that is a participant
in the Book-Entry Transfer Facility's (as
defined) system may make book-entry delivery of
Old Notes by causing the Book-Entry Transfer
Facility to transfer such Old Notes into the
Exchange Agent's account at the Book-Entry
Transfer Facility in accordance with such Book-
Entry Transfer Facility's procedures for
transfer. See "The Exchange Offer -- Book-Entry
Transfer."
Withdrawal Rights............. Tenders of Old Notes may be withdrawn at any
time prior to 5:00 p.m. New York City time, on
the Expiration Date. See "The Exchange
Offer -- Withdrawal of Tenders."
Acceptance of Old Notes and
Delivery of New Notes......... Upon satisfaction or waiver of all conditions
of the Exchange Offer, the Company will accept
for exchange any and all Old Notes which are
properly tendered and not withdrawn prior to
5:00 p.m., New York City time, on the
Expiration Date. The New Notes issued pursuant
to the Exchange Offer will be delivered
promptly
6
<PAGE> 13
following the Expiration Date. See "The
Exchange Offer -- Acceptance of Old Notes for
Exchange; Delivery of New Notes."
Federal Income Tax
Consequences.................. The exchange of Old Notes for New Notes by
tendering holders will not be a taxable
exchange for federal income tax purposes as a
result of such exchange. See "Certain Federal
Income Tax Consequences."
Regulatory Approvals.......... The Company does not believe that the receipt
of any material federal or state regulatory
approvals will be necessary in connection with
the Exchange Offer. See "The Exchange
Offer -- Regulatory Approvals."
Use of Proceeds............... The Company will not receive any proceeds from
the exchange pursuant to the Exchange Offer.
See "Use of Proceeds."
Exchange Agent................ Marine Midland Bank is serving as Exchange
Agent in connection with the Exchange Offer.
See "The Exchange Offer -- Exchange Agent."
Consequences of Failure
to Exchange................. The trading market for the holder's Old Notes
could be adversely affected upon completion of
the Exchange Offer if such holder does not
participate in the Exchange Offer. See "The
Exchange Offer -- Consequences of Failure to
Exchange."
Resales of the New Notes...... The New Notes are being offered hereunder in
order to satisfy certain obligations of the
Company contained in the Registration Rights
Agreement. Based on positions of the Commission
and no-action or interpretive letters issued to
third parties, the Company believes that the
New Notes issued pursuant to the Exchange Offer
to a holder in exchange for Old Notes may be
offered for resale, resold and otherwise
transferred by any holder thereof (other than
any such holder which is an "affiliate" of the
Company within the meaning of Rule 405 under
the Securities Act), without compliance with
the registration and prospectus delivery
provisions of the Securities Act, provided that
such New Notes are acquired in the ordinary
course of such holder's business and such
holder is not participating, does not intend to
participate and has no arrangement or
understanding with any person to participate in
the distribution of such New Notes. If any
holder acquires New Notes in the Exchange Offer
for the purpose of distributing or
participating in a distribution of New Notes,
such holder cannot rely on the position of the
staff of the Commission set forth in its
no-action and interpretive letters and must
comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with a secondary resale transaction,
unless an exemption from registration is
otherwise available. Each broker-dealer that
receives New Notes for its own account pursuant
to the Exchange Offer must acknowledge that (i)
Old Notes tendered by it in the Exchange Offer
were acquired in the ordinary course of its
business as a result of market-making or other
trading activities and (ii) it will deliver a
prospectus in connection with any resale of New
Notes received in the Exchange Offer. This
Prospectus, as it may be amended or
supplemented from time to time, may be used by
a
7
<PAGE> 14
broker-dealer in connection with any resale of
the New Notes received in exchange for Old
Notes where such Old Notes were acquired by
such broker-dealer as a result of market-making
or other trading activities (other than Old
Notes acquired directly from the Company). The
Company has agreed that, for a period of 180
days following the consummation of the Exchange
Offer, it will make this Prospectus available
to any broker-dealer for use in connection with
any such resale. See "The Exchange Offer --
Resales of the New Notes" and "Plan of
Distribution."
SUMMARY DESCRIPTION OF THE NEW NOTES
The Exchange Offer relates to the exchange of up to $100,000,000 aggregate
principal amount of Old Notes for an equal aggregate principal amount of New
Notes. Holders of New Notes will be entitled to the benefits of the Indenture.
The New Notes will be identical to the Old Notes, except that (i) the New Notes
will have been registered under the Securities Act and thus will not bear
restrictive legends restricting their transfer pursuant to the Securities Act
and (ii) holders of New Notes will not be entitled to registration rights that
holders of the Old Notes have under the Registration Rights Agreement except
under limited circumstances. See "Description of the Notes."
Securities Offered............ Up to $100,000,000 principal amount of 12 1/2%
Senior Subordinated Notes due 2006 (the "New
Notes").
Maturity Date................. August 1, 2006.
Interest Rate................. The New Notes will bear interest at a rate of
12 1/2% per annum.
Interest Payment Dates........ Interest will accrue on the New Notes from the
last interest payment date on which interest
was paid on the Old Notes surrendered in
exchange therefor or if no interest has been
paid on the Old Notes, from the Original Issue
Date and will be payable semi-annually on each
February 1 and August 1 of each year,
commencing February 1, 1999. Interest on the
New Notes will be paid on the basis of a
360-day year of twelve 30-day months.
Ranking....................... The New Notes will be general unsecured
obligations of the Company subordinate in right
of payment to all existing and future Senior
Indebtedness (as defined herein) of the
Company, senior in right of payment to all
existing and future subordinated indebtedness
of the Company and pari passu in right of
payment with all future senior subordinated
indebtedness of the Company. As of June 28,
1998, after giving effect to the Offering and
the application of the net proceeds therefrom,
the Company would have had outstanding $353.6
million of total Indebtedness (as defined
herein), $229.3 million of which was Senior
Indebtedness and $24.3 million of which was
Indebtedness subordinated to the Notes. See
"Description of the Notes -- Subordination."
Guarantees.................... The New Notes will be unconditionally
guaranteed, on an unsecured senior subordinated
basis, as to payment of principal, premium, if
any, and interest, jointly and severally (the
"Guarantees"), by all of the direct and
indirect domestic Restricted Subsidiaries (as
defined herein) of the Company (the
"Guarantors"). The Guarantees will be
subordinated to all Guarantor Senior
Indebtedness (as defined herein) of the
respective Guarantors.
8
<PAGE> 15
Mandatory Redemption.......... There will be no mandatory redemption
requirements with respect to the New Notes.
Optional Redemption........... The New Notes will be redeemable at the option
of the Company, in whole or in part, at any
time on or after August 1, 2003, at the
redemption prices set forth herein plus accrued
interest to the date of redemption. In
addition, upon a Change of Control (as defined
herein) on or prior to August 1, 2000, the
Company, at its option, may redeem all but not
less than all of the New Notes outstanding at a
redemption price equal to 112.5% of the
aggregate principal amount of the New Notes so
redeemed plus accrued interest to the date of
redemption. The Company, at its option, may
redeem in the aggregate up to 35% of the
original principal amount of the Notes at any
time or from time to time prior to August 1,
2000, at a redemption price equal to 112.5% of
the aggregate principal amount so redeemed plus
accrued interest to the date of redemption,
with the Net Proceeds (as defined herein) of
one or more Public Equity Offerings (as defined
herein) of the Company, provided that at least
$65.0 million of the original principal amount
of the Notes remains outstanding immediately
after the occurrence of any such redemption and
that any such redemption occurs within 90 days
following the closing of any such Public Equity
Offering.
Change of Control............. In the event of a Change of Control, the
Company will be required to make an offer to
purchase all outstanding New Notes at a
purchase price equal to 101% of the principal
amount thereof plus accrued interest to the
date of purchase. See "Description of the
Notes -- Certain Covenants -- Change of Control
Offer." There can be no assurance that the
Company will have sufficient funds or will be
contractually permitted by outstanding Senior
Indebtedness to pay the required purchase price
for all New Notes tendered by holders upon a
Change of Control.
Asset Sale Proceeds........... The Company will be obligated in certain
instances to make an offer to purchase the New
Notes at a purchase price in cash equal to 100%
of the principal amount thereof plus accrued
interest to the date of purchase with the net
cash proceeds of certain asset sales. See
"Description of the Notes -- Certain
Covenants -- Limitation on Certain Asset
Sales."
Certain Covenants............. The Indenture will contain covenants for the
benefit of the holders of the New Notes that,
among other things, restrict the ability of the
Company and its Restricted Subsidiaries to: (i)
incur additional Indebtedness; (ii) pay
dividends and make distributions; (iii) issue
stock of Restricted Subsidiaries; (iv)
repurchase stock; (v) create liens; (vi) enter
into transactions with affiliates; (vii) merge
or consolidate the Company or any of the
Guarantors; and (viii) transfer and sell
assets. These covenants are subject to a number
of important exceptions. See "Description of
the Notes -- Certain Covenants."
RISK FACTORS
Holders of the Old Notes should consider carefully the information set
forth under the caption "Risk Factors" and all other information set forth in
this Prospectus prior to tendering their Old Notes in the Exchange Offer.
9
<PAGE> 16
SUMMARY CONSOLIDATED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
The following selected consolidated financial data should be read in
conjunction with the consolidated financial statements of the Company and the
related notes thereto and Management's Discussion and Analysis of Financial
Condition and Results of Operations included elsewhere herein. The consolidated
financial data as of and for the fiscal years ended July 3, 1994, July 2, 1995,
June 30, 1996, June 29, 1997 and June 28, 1998 have been derived from
consolidated financial statements of the Company, which have been audited by
KPMG Peat Marwick LLP, independent certified public accountants. The
consolidated financial statements as of June 28, 1998 and June 27, 1997 and for
each of the years in the three year period ended June 28, 1998, and the report
thereon, are included elsewhere in this Prospectus. The information set forth
herein has been adjusted for stock dividends. See Note 7 of notes to the
Company's consolidated financial statements.
The adjusted financial data for Fiscal 1998 give effect to the Old Note
Offering and the application of substantially all of the estimated net proceeds
therefrom to repay indebtedness as if such transactions had occurred on June 29,
1997. The adjusted balance sheet data give effect to such transactions as if
they had occurred on June 28, 1998. See "Use of Proceeds."
The following information is qualified in its entirety by, and should be
read in conjunction with, "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the consolidated financial statements
of the Company (including the notes thereto) included elsewhere herein.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------------------------------------
JULY 3, JULY 2, JUNE 30, JUNE 29, JUNE 28,
1994(1) 1995 1996 1997 1998
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Net revenues:
Product revenues..................................... $1,019,010 $1,342,323 $1,940,796 $2,126,973 $2,006,161
Service revenues..................................... 75,917 130,940 207,511 353,624 450,471
---------- ---------- ---------- ---------- ----------
Total net revenues................................. 1,094,927 1,473,263 2,148,307 2,480,597 2,456,632
Cost of revenues:
Cost of products sold................................ 917,939 1,236,940 1,764,775 1,922,826 1,800,085
Cost of services provided............................ 64,300 110,349 168,957 267,554 341,612
---------- ---------- ---------- ---------- ----------
Total cost of revenues............................. 982,239 1,347,289 1,933,732 2,190,380 2,141,697
Product gross profit................................... 101,071 105,383 176,021 204,147 206,076
Service gross profit................................... 11,617 20,591 38,554 86,070 108,859
---------- ---------- ---------- ---------- ----------
Total gross profit................................. 112,688 125,974 214,575 290,217 314,935
Selling, general and administrative expenses........... 100,790 132,586 192,312 251,963 259,712
Nonrecurring stock compensation costs.................. -- -- 18,185 -- --
---------- ---------- ---------- ---------- ----------
Income (loss) from operations........................ 11,898 (6,612) 4,078 38,254 55,223
Interest expense, net.................................. 17,444 23,151 29,726 37,147 36,663
Other income........................................... -- -- -- 462 --
---------- ---------- ---------- ---------- ----------
Income (loss) before income taxes.................... (5,546) (29,763) (25,648) 1,569 18,560
Provision (benefit) for income taxes................... (2,225) (509) 28 25 417
---------- ---------- ---------- ---------- ----------
Net income (loss)...................................... $ (3,321) $ (29,254) $ (25,676) $ 1,544 $ 18,143
========== ========== ========== ========== ==========
COMMON SHARE DATA:(2)
Basic earnings (loss) per share........................ $ (.12) $ (.93) $ (.82) $ .05 .56
========== ========== ========== ========== ==========
Diluted earnings (loss) per share...................... $ (.12) $ (.93) $ (.82) $ .05 .53
========== ========== ========== ========== ==========
Basic weighted average number of shares of common stock
outstanding.......................................... 28,053,165 31,333,300 31,348,340 32,281,463 32,357,968
Diluted weighted average number of shares of common
stock outstanding.................................... 28,053,165 31,333,300 31,348,340 33,572,160 34,269,146
========== ========== ========== ========== ==========
OTHER DATA:
EBITDA(3).............................................. $ 18,897 $ 146 $ 35,903 $ 56,639 $ 78,569
Cash Flow provided by (used in) operating activities... -- (8,954) (74,670) (26,100) 54,809
Depreciation and amortization.......................... 6,999 6,758 13,640 18,385 23,346
Interest expense, net.................................. 17,444 23,151 29,726 37,147 36,663
Capital expenditures................................... 2,420 7,178 19,205 21,737 19,655
Ratio of earnings to fixed charges(4).................. -- -- -- 1.0x 1.5x
</TABLE>
10
<PAGE> 17
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED
JUNE 28, 1998
-------------
<S> <C>
ADJUSTED FINANCIAL DATA:
EBITDA...................................................... $78,569
Interest expense (inclusive of interest accrued on asset
based financing)(5)....................................... 38,207
EBITDA/interest expense (inclusive of interest accrued on
asset based financing)(5)................................. 2.06x
Total debt (exclusive of asset based financing)/EBITDA...... 1.75x
Total debt/EBITDA........................................... 4.50x
</TABLE>
<TABLE>
<CAPTION>
AS OF JUNE 28, 1998
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
<S> <C> <C>
BALANCE SHEET DATA:
Cash........................................................ $ 14,265 $ 14,265
Working capital (deficit) (exclusive of cash)............... (84,204) (10,300)
Total assets................................................ 736,419 741,119
Asset based financing (6)................................... 290,328 216,424
Total debt (exclusive of asset based financing)(6).......... 58,592 137,196
Total stockholders' equity (deficit)........................ (19,145) (19,145)
</TABLE>
- ---------------
(1) The statement of operations data for Fiscal 1994 present the results of
operations from August 6, 1993, the date the Company acquired the net assets
of JWPIS.
(2) See Note 1 to the Company's consolidated financial statements for an
explanation of the calculation of weighted average number of shares
outstanding.
(3) Represents income (loss) from operations plus depreciation and amortization
and, in Fiscal 1996, nonrecurring stock compensation costs. The Company has
included information concerning EBITDA in this Offering Memorandum because
it is used by certain investors as a measure of a company's ability to
service its debt obligations. EBITDA is not intended to represent cash flow
from operations as defined by generally accepted accounting principles and
should not be used as an alternative to net income as an indicator of
operating performance or to cash flows as a measure of liquidity.
(4) For purposes of computing the ratio of earnings to fixed charges, fixed
charges consist of interest (including the interest component of rental
expenses) and amortization of debt expense. Earnings consist of earnings
from continuing operations before taxes, plus fixed charges. For Fiscal
1994, Fiscal 1995 and Fiscal 1996, earnings were insufficient to cover fixed
charges by $5.5 million, $29.8 million and $25.6 million, respectively.
(5) Interest expense is adjusted to reflect amortization on a straight-line
basis of the deferred financing fees of $3.6 million related to the Old Note
Offering over a period of eight years and of the deferred financing fees of
$1.1 million related to the IBMCC Working Capital Line of Credit
restructuring over a period of three years.
(6) Excludes certain non-interest bearing amounts ($176.1 million as of June 28,
1998) owed to IBMCC and FINOVA (as defined herein) which are classified as
accounts payable on the Company's consolidated balance sheet. See
"Description of Other Indebtedness" and Note 5 to the Company's consolidated
financial statements.
11
<PAGE> 18
RISK FACTORS
In addition to the other information in this Prospectus, holders of the Old
Notes should carefully consider the following factors prior to exchanging Old
Notes for the New Notes offered hereby. In addition, this document contains
certain forward-looking statements and trend analysis based on current
expectations. Actual results may differ materially due to a number of factors,
including those set forth below.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Old Notes who do not exchange their Old Notes for New Notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of such Old Notes, as set forth in the legend thereon, as a
consequence of the issuance of the Old Notes pursuant to exemptions from, or in
transactions not subject to, the registration requirements of the Securities Act
and applicable state securities laws. In general, the Old Notes may not be
offered or sold, unless registered under the Securities Act, except pursuant to
an exemption from, or in a transaction not subject to, the Securities Act and
applicable state securities laws. The Company does not currently anticipate that
it will register the Old Notes under the Securities Act. Based on
interpretations by the staff of the Commission set forth in no-action letters
issued to third parties, the Company believes that the New Notes issued pursuant
to the Exchange Offer to a holder in exchange for Old Notes may be offered for
resale, resold or otherwise transferred by any holder thereof (other than any
such holder which is an "affiliate" of the Company within the meaning of Rule
405 under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such New
Notes are acquired in the ordinary course of such holder's business and such
holder is not participating, does not intend to participate and has no
arrangement or understanding with any person to participate in the distribution
of such New Notes. Each broker-dealer that receives New Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with any resale of New Notes received in exchange for Old Notes where such Old
Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities (other than Old Notes acquired directly
from the Company). The Company has agreed that, for a period of 180 days
following the consummation of the Exchange Offer, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale.
However, the ability of any holder to resell the New Notes is subject to
applicable state securities laws as described in "-- Blue Sky Restrictions on
Resale of New Notes" below. To the extent that Old Notes are tendered and
accepted in the Exchange Offer, the trading market, if any, for the Old Notes
not so tendered could be adversely affected. See "The Exchange Offer" and "Plan
of Distribution."
FAILURE TO COMPLY WITH EXCHANGE OFFER PROCEDURES
To participate in the Exchange Offer and avoid the restrictions on transfer
of the Old Notes, holders of Old Notes must transmit a properly completed Letter
of Transmittal, including all other documents required by such Letter of
Transmittal, to the Exchange Agent at one of the addresses set forth below under
"The Exchange Offer-Exchange Agent" on or prior to the Expiration Date. In
addition, either (i) certificates for such Old Notes must be received by the
Exchange Agent along with the Letter of Transmittal, (ii) a timely confirmation
of a book-entry transfer of such Old Notes, if such procedure is available, into
the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the
procedure for book-entry transfer described herein must be received by the
Exchange Agent prior to the Expiration Date or (iii) the holder must comply with
the guaranteed delivery procedures described herein and in the Letter of
Transmittal. The method of delivery of the Old Notes and the Letter of
Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the holder. See "The Exchange Offer."
12
<PAGE> 19
HIGH DEGREE OF LEVERAGE; DEPENDENCE ON IBMCC; FUTURE CAPITAL NEEDS
To meet its substantial working capital requirements and to finance its
business and expansion, the Company relies on several credit facilities. As of
June 28, 1998, after giving effect to the Old Note Offering and the application
of the net proceeds therefrom, the Company would have had outstanding
indebtedness of approximately $353.6 million. This substantial leverage may have
several important consequences for the Company, including, but not limited to,
the following: (i) the Company's ability to obtain additional financing in the
future for working capital, acquisitions, capital expenditures, general
corporate or other requirements may be limited or impaired; (ii) a substantial
portion of the Company's cash flow from operations will be dedicated to
servicing its indebtedness; and (iii) the Company's ability to withstand
competitive pressures or adverse economic conditions, and to take advantage of
future business opportunities that may arise, may be negatively affected. The
Company's inability to service its indebtedness or obtain additional financing,
as needed, on favorable terms would have a material adverse effect on the
Company's business, operating results and financial condition.
A substantial portion of the Company's working capital is financed under a
revolving line of credit of up to $525 million (the "IBMCC Working Capital Line
of Credit") with IBMCC. The IBMCC Working Capital Line of Credit is subject to
annual renewal. The IBMCC Working Capital Line of Credit can be terminated by
IBMCC upon 60 days' prior notice. There can be no assurance that IBMCC will not
terminate the IBMCC Working Capital Line of Credit. The Company maintains a
vendor relationship with IBM, of which IBMCC is an affiliate. There can be no
assurance that any deterioration in the vendor-customer relationship between the
Company and IBM will not adversely affect the Company's relationship with IBMCC.
In addition, from time to time, the Company has failed to comply with certain
financial covenants under the IBMCC Working Capital Line of Credit. In the past,
IBMCC has waived such defaults. However, there can be no assurance that IBMCC
will waive future breaches.
Since a substantial portion of the Company's indebtedness bears interest at
floating rates, an increase in interest rates could adversely affect, among
other things, the ability of the Company to meet its debt service obligations.
The Company is currently not a party to any financial arrangement to mitigate
its exposure to an increase in interest rates.
RESTRICTIVE DEBT COVENANTS
The IBMCC Working Capital Line of Credit, the FINOVA Inventory Line of
Credit (as defined herein) and the Notes offered hereby contain or incorporate
by reference through cross-default provisions a number of significant covenants
that, among other things, restrict the ability of the Company to (i) declare
dividends or redeem or repurchase capital stock, (ii) prepay, redeem or purchase
debt, including the Notes, (iii) incur liens and engage in sale-leaseback
transactions, (iv) make loans and investments, (v) incur additional
indebtedness, (vi) amend or otherwise alter debt and other material agreements,
(vii) make capital expenditures, (viii) engage in mergers, acquisitions and
asset sales, (ix) enter into transactions with affiliates and (x) alter the
business it conducts. The indebtedness outstanding under the IBMCC Working
Capital Line of Credit is guaranteed by three of the Company's domestic
subsidiaries and is secured by a first priority lien on the inventory and
accounts receivable (excluding inventory pledged to FINOVA Capital Corporation
("FINOVA") and inventory subject to a purchase money security interest in favor
of HP on which IBMCC has a second priority lien) and certain intellectual
property of the Company and such guarantor subsidiaries. The Notes are
guaranteed by the Company's domestic subsidiaries. In addition, under the IBMCC
Working Capital Line of Credit, the Company is also required to comply with
financial covenants with respect to (i) ratio of current assets to current
liabilities, (ii) ratio of total liabilities minus aggregate outstanding
principal amount of subordinated debt to tangible net worth, (iii) ratio of
EBITDA for the immediately preceding four fiscal quarters to interest expense
for such period, (iv) minimum consolidated net income for each fiscal year and
(v) minimum working capital. If the Company were unable to borrow under the
IBMCC Working Capital Line of Credit due to a default or failure to meet certain
specified borrowing base prerequisites for borrowing, it could be left without
sufficient liquidity.
13
<PAGE> 20
DECLINING GROSS MARGINS FOR PRODUCT SALES
Approximately 81.7% of the Company's total net revenues in Fiscal 1998 were
generated through sales of PC hardware, software and related products. The
Company believes that competitive conditions will continue to place pressures on
its product gross margins. Furthermore, the original purchase price of products
is often offset by favorable vendor allowances and negotiated price protection
agreements against price decreases on inventory carried by the Company. There
can be no assurance that vendors will continue to offer such vendor allowances
or price protection at the current levels. OEMs have indicated that current
market development funds ("MDF") programs will be altered. A reduction or
elimination of such vendor programs could significantly decrease the Company's
product gross margins. In addition, such vendor allowances and refunds for price
decreases are not automatic and must be tracked and collected by the Company.
The Company's failure to effectively manage such vendor receivables may further
decrease product gross margins. From 1994 to 1996, the Company experienced
certain accounting difficulties resulting from incorrect estimates and
assumptions made in calculating the gross margin of its PC Acquisition business.
Although the Company was entitled to receive vendor allowances with respect to
computer hardware purchases, the Company failed to collect a significant
percentage of such allowances. Further declines in the Company's product gross
margins or failure to collect on vendor allowances may have a material adverse
effect on the Company's business, operating results and financial condition.
FLUCTUATIONS IN OPERATING RESULTS
The Company's operating results have varied in the past, and the Company
expects its operating results, particularly its quarterly results, to continue
to fluctuate. The Company's net revenues may fluctuate due to a variety of
factors, including the level of expenditures by large enterprises for PC
hardware, software and related products and services in general, demand for the
Company's products and services in particular, the timing of orders for the
Company's products and services, product supply constraints, the Company's
build-to-order programs and customer demand driven by the introduction and
adoption of new products. Due to its narrow product gross margins, the Company's
operating results may be especially sensitive to changes in the mix of product
and service revenues, the margin mix of products sold, the margin mix of
services sold and the level of its operating expenses. The Company's operating
expenses may fluctuate as a result of numerous factors, including the timing and
rate of new employee hiring, the amount and timing of vendor-provided
allowances, the utilization rate of service personnel, competitive conditions
and the impact of acquisitions. The Company's costs are largely fixed in the
near term, and the Company may be unable to adjust spending in a timely manner
to compensate for an unexpected revenue shortfall. As a result, revenue
shortfalls may have an immediate and disproportionate adverse effect on
operating results. In addition, if the Company spends to build its capabilities
to support higher revenue levels, the Company's near term operating results will
suffer until it achieves its revenue goals. Due to the Company's recent growth,
it is difficult to discern seasonal trends. However, the Company believes that
first and third fiscal quarter revenues may be negatively affected due to
generally lower computing equipment purchases during the summer months, which
coincide with the first fiscal quarter and in January, which falls within the
third fiscal quarter. Due to all of these factors, the Company believes that its
operating results are likely to vary, in particular on a quarterly basis. As a
result, period-to-period comparisons of its operating results are not
necessarily meaningful, and quarterly results may not be indicative of results
to be expected for a full year.
INTENSE COMPETITION
The computer products and services industry is intensely competitive, and
management believes competition will intensify in the future. As an independent
PC systems integrator, ENTEX competes with companies which can provide a
combination of product procurement and services such as PC system integrators
and high-end systems integrators, as well as companies which provide either
products or services such as PC resellers and distributors, specialty service
providers and direct marketers. In addition, there is increased competition from
manufacturers such as Compaq, DEC, HP, IBM and Unisys who sell direct to the
Company's customer base. PC system integrators include CompuCom Systems, DEC, GE
Capital Information Technology Solutions, Inacom, Vanstar and Wang. High-end
system integrators have traditionally been
14
<PAGE> 21
mainframe-oriented service providers and include Andersen Consulting, Computer
Sciences Corporation, IBM Global Services and SHL Systemhouse, a division of MCI
Communications. PC resellers and distributors include Inacom, Tech Data and
MicroAge. Specialty service providers are firms which have focused their
business exclusively on providing PC and network related services and include
DecisionOne and Technology Service Solutions. Direct marketers include Dell,
Gateway, Micron and Unisys. In addition to these large national companies, ENTEX
also competes against numerous regional and local companies, many of which have
long-standing customer relationships. Some of the Company's competitors have
greater financial, technical and marketing resources at a lower cost structure
than the Company. As a result, such companies may be able to respond more
quickly to new or emerging technologies and changes in customer needs, devote
more resources to the development, promotion and sales of their services or
deliver products at a lower price than the Company. In addition, competition
could result in price decreases and depress gross margins in the industry.
Further declines in the Company's gross margins may exacerbate the impact of
fluctuating net revenues and operating costs on the Company's operating results
and have a material adverse effect on the Company's business, operating results
and financial condition.
INCREASED COMPETITION FROM DIRECT MARKETERS
The Company competes with several manufacturers in meeting the distributed
information needs of large enterprises. Notably, direct marketers such as Dell
compete with the Company by selling directly to Fortune 1000 companies and other
large enterprises. The expansion of the direct selling model has increased the
competitive risks in an already highly competitive market. To combat the
additional competition, the Company has enhanced its System Builder program to
provide for final assembly services and has joined with certain vendors to
provide products to customers on a build-to-order basis. However, there can be
no assurance that ENTEX will be able to successfully transition from its current
systems, which utilize high levels of inventory, to managing a more streamlined
product fulfillment process. In addition, there can be no assurance that the
Company's vendors can supply components on a "just-in-time" basis to allow
successful management of a build-to-order program. The Company's failure to
successfully transition to the build-to-order process could have a material
adverse effect on the Company's business, operating results and financial
condition. See "-- Intense Competition."
INCREASED EMPHASIS ON SERVICE OFFERINGS
The Company's service operations are characterized by higher gross margins
than those attainable in product sales. During Fiscal 1998, compared to Fiscal
1997, service revenues grew 27.4% to $450.5 million, while product revenues
declined 5.7% to $2,006.2 million. The Company's success in increasing its
service revenues will depend primarily on the continued need for the Company's
services and the continued acceptance by large companies of outsourcing and
system migrations as solutions to their PC management needs. In addition, the
Company must have the ability to identify opportunities where its service
solutions are appropriate, sell such service solutions at attractive margins,
successfully implement such solutions and maintain the quality of its service
offerings. To the extent that the Company does not successfully increase the
proportion of revenues attributable to its service business, the Company's
operating margins may be adversely affected. In order to expand its service
operations, the Company will need to recruit, train and retain a significant
number of qualified technical personnel and integrate them into the Company.
There can be no assurance that the Company will do so successfully. The expense
of these efforts and the costs associated with the hiring of additional service
personnel and expansion of the Company's service infrastructure will be incurred
prior to increases in service revenues. If service revenues do not increase
sufficiently or the Company fails to accurately price its services, the
Company's business, operating results and financial condition would be
materially adversely affected.
NEED TO RECRUIT AND RETAIN MANAGEMENT, TECHNICAL AND SALES PERSONNEL
The Company believes that its future success depends, to a large extent,
upon the efforts and abilities of its executive officers, managers, technical
and sales personnel. The Company's expansion of its service operations requires
the recruiting and training of a significant number of additional qualified
technical
15
<PAGE> 22
personnel, including project managers and network integration specialists.
Frequently, the Company must rapidly hire a significant number of technical
personnel to staff projects at customer sites. The Company's inability to hire
such personnel within the time schedule agreed to with the customer could damage
customer relationships and result in lost revenues. Competition for qualified
technical and sales personnel is intense. The Company competes with other
service providers as well as with its own customers, including those at whose
locations ENTEX employees work. Failure by the Company to attract and train
skilled managers, technical and sales personnel on a timely basis, or the
inability of the Company to retain such personnel, could materially adversely
affect the Company's business, operating results and financial condition. The
Company's employee turnover for Fiscal 1998 was 30.8%. In 1983, Mr. Cameron, the
Chairman of the Board of Directors and a co-founder of the Company, was
diagnosed with multiple sclerosis.
CONTRACT PRICING POLICY
The Company has begun implementing and intends to expand the use of new
pricing policies for its service offerings. Such new pricing policies include
pricing on a fixed fee or per end-user basis and on a service and support
performance metrics basis rather than on a time and materials basis. As a
result, the Company must accurately assess the scope of work of each project and
estimate the resources required to complete the project and to meet any service
and support performance metrics. Failure by the Company to accurately estimate
the scope of a project or support expenses or to meet service and support
performance metrics could have a material adverse effect on the Company's
business, operating results and financial condition. In addition, the Company
has certain warranty service commitments for which the Company seeks
reimbursement from manufacturers. A reduction by manufacturers in the scope or
duration of their reimbursements for warranties which the Company cannot
contractually pass on to its customers or the failure of the Company to properly
track and collect such reimbursements could have a material adverse effect on
the Company's business, operating results and financial condition.
DEPENDENCE ON VENDORS
A significant portion of the Company's revenues are derived from sales of
PC hardware, software and related products. Approximately 64.4% of such product
revenues in Fiscal 1998 were attributable to sales of products manufactured by
Compaq, HP and IBM. The Company's agreements with these manufacturers do not
provide for long-term supply commitments and can be terminated with 15 to 90
days' notice. From time to time, the PC industry has experienced product
constraints, with vendors allocating product based on criteria beyond the
buyer's control. In the event the Company is not able to obtain sufficient
quantities of products from its vendors or sufficient component parts for use in
its build-to-order programs, the Company's business, operating results and
financial condition could be materially adversely affected. The Company works
closely with its key manufacturers. Many manufacturers provide vendor allowances
in the form of MDF, which reduce the cost of products sold and which the Company
uses to subsidize a variety of activities including many of its employee and
customer training programs. In Fiscal 1998, the Company recorded $63.6 million
in connection with MDF. In addition to MDF, the Company's major manufacturers
offer special pricing which the Company passes on directly to its customers.
Many manufacturers also provide ENTEX with early previews of new products and
technology and instruction and training for ENTEX technical and support
personnel on the use of these new products. There can be no assurance that these
arrangements will continue in the future. In the event that these arrangements
were discontinued or industry practices were to change, commercial terms with
vendors were to change generally or the Company were to otherwise lose vendor
support, the Company's business, operating results and financial condition could
be materially adversely affected. See "-- Declining Gross Margins for Product
Sales."
RISKS ASSOCIATED WITH INVENTORY MANAGEMENT
In order to offer rapid delivery and efficient support and service to its
customers, the Company maintains relatively high levels of products and parts
inventory. The Company attempts to protect itself from inventory obsolescence
and inventory price reductions by negotiating price protection and stock
balancing arrangements with its vendors and enforcing a limited return policy
with its customers. These arrangements entitle the
16
<PAGE> 23
Company to receive refunds from manufacturers equal to price decreases on
inventory carried by ENTEX and provide ENTEX the ability to return, subject to
certain conditions including restocking fees, slow moving products. Such price
protection and stock balancing provisions provided through the Company's supply
agreements or particular manufacturers' sales policies may provide only limited
protection against inventory risks. The Company's suppliers have been decreasing
the level of price protection and return privileges offered, and there can be no
assurance that such suppliers will not continue to further decrease or eliminate
such protection in the future. Manufacturers experiencing financial difficulties
may also be unable or unwilling to honor their price protection and stock
balancing commitments. Further, the Company regularly disposes of excess and
obsolete inventory at discounts to the Company's original purchase price.
Although the Company sets up reserves for losses associated with the disposal of
excess and obsolete items and records inventories net of these reserves, there
can be no assurance that such reserves will be adequate. Changes in industry
practices which increase the risks associated with maintaining high levels of
inventory, the Company's inability to effectively manage its current and future
inventory or significant adjustments to the value of its inventory could
materially adversely affect the Company's business, operating results and
financial condition. See "-- Increased Competition from Direct Marketers."
RAPID TECHNOLOGICAL CHANGE
The PC products and services industry is subject to rapid technological
change, evolving industry standards and frequent new product and service
introductions. The Company must, on a timely and cost-effective basis,
continuously respond to new product introductions. It must source such new
products, develop and introduce new services which keep pace with technological
developments and increasingly sophisticated network systems and train its
employees to provide the necessary services to support new products and systems.
There can be no assurance that the Company will be able to source new products
to meet customer demand, respond to technological developments in a timely
manner, if at all, or that its service offerings will adequately meet the
changing requirements of its customers and achieve market acceptance. Further,
suppliers may restrict the Company's access to new products. The Company's
failure to successfully source new products or develop and introduce new
services which meet evolving customer needs could have a material adverse effect
on the Company's business, operating results and financial condition.
MANAGEMENT OF GROWTH
The Company has experienced significant growth since its inception. This
rapid growth has placed, and is expected to continue to place, a significant
strain on the Company's management, financial, sales, technical and support
systems and personnel. The Company's ability to manage its growth effectively
will require it to continue to develop and improve its operational, financial
and other internal systems and train, manage and motivate its employees. The
Company has in the past evaluated and will continue in the future to evaluate
the acquisition of businesses that complement or expand the Company's technical
skills, service offerings or geographical presence. Integrating newly acquired
companies could be costly and may result in the loss of customers and key
personnel and may disrupt operations. Additionally, integrating newly acquired
businesses may divert significant management resources and attention from
day-to-day operations.
DEPENDENCE ON INTEGRATION CENTER, FREIGHT DELIVERY PROVIDER AND NATIONAL SERVICE
CENTER
All of the Company's product configuration, build-to-order and distribution
activities are conducted at the Company's Integration Center in Erlanger,
Kentucky. Disruption of operations at its Integration Center for any reason,
including power or telecommunications failures, natural disasters such as fires,
tornadoes or floods, or work stoppages, would have a material adverse effect on
the Company's business, operating results and financial condition. In addition,
the Company relies almost entirely on Skyway Freight Systems, Inc. ("Skyway"),
an independent shipping company, for the delivery of its products. The failure
or inability of Skyway to deliver products to the Company's customers on a
timely basis, whether as a result of a work stoppage or slow-down, or the
unanticipated termination of the Company's arrangement with Skyway, could have a
material adverse effect on the Company's business, operating results and
financial condition.
17
<PAGE> 24
A number of the Company's service offerings depend on central service and
sales support or dispatch coordination from its National Service Center ("NSC")
in Mason, Ohio. Disruption of operations at the Mason facility, including power
or telecommunications failures, natural disasters such as fires, tornadoes or
floods, or work stoppages, would have a material adverse effect on the Company's
service operations and could affect customer relationships.
YEAR 2000 COMPLIANCE
The Company uses a significant number of computer software programs and
operating systems in its internal operations, including applications used in
financial business systems and various administration functions. As the Year
2000 approaches, each of these computer systems will be affected in some way by
the rollover of the two-digit year value to 00. If these systems are unable to
properly recognize date sensitive information when the year changes to 2000,
they could generate erroneous data or cause a system to fail. The Company is
utilizing both internal and external resources to identify, correct or reprogram
and test the systems for Year 2000 compliance. The Company completed an
inventory of its information technology ("IT") systems in December 1997. The
Company is now in the renovation or validation phases of its IT systems and
currently intends to implement these systems by June 1999. The Company is
currently implementing the R3(TM) Enterprise Resource Planning System from SAP
at an estimated cost of $30 million over the twelve months ending March 1999.
The Company's inventory and assessment of its non-IT systems (facilities and
warehouse-based, including scanners, conveyers and security systems) is expected
to be completed by December 31, 1998, followed by any required renovation. All
validation and implementation of these non-IT systems is expected to be
completed by June 1999. The company expects to spend approximately $2 million to
$5 million in addition to the SAP implementation to complete its Year 2000
project upgrade. In addition to upgrading its own systems, the Company has
contacted certain significant customers and suppliers to determine their Year
2000 compliance profile. To date, the Company has not received any information
which would indicate that the Year 2000 will result in any significant
disruption from them. The Company currently intends to complete joint testing of
Year 2000 date data with its Electronic Data Interchange ("EDI") customers and
suppliers by June 1999.
All potential risks and uncertainties associated with the Year 2000 issue
cannot be fully and accurately quantified. A contingency plan has been developed
to renovate existing systems if the planned implementation of the SAP
replacement system fails to adequately deal with the Year 2000 issue. Other
contingency plans will be developed if third party data interchange partners
fail compliance testing or if the replacement or renovation of other existing
systems is not on schedule. Although the Company does not believe that any
additional costs or potential loss in revenue will have a material adverse
effect on the Company's business, operating results or financial condition, the
Company is still analyzing its computer systems, and, to the extent they are not
fully Year 2000 compliant, there can be no assurance that the costs necessary to
update software or potential systems interruptions would not have a material
adverse effect on the Company's business, operating results and financial
condition. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
CONTROL BY PRINCIPAL STOCKHOLDERS
The directors and executive officers of the Company beneficially own
substantially in excess of a majority of the outstanding shares of the common
stock of the Company (the "Common Stock"). As a result, the directors and
executive officers of the Company are able to control the election of members of
the Company's Board of Directors and generally exercise control over the
Company's corporate actions. In particular, Mr. Cameron and his affiliates
exercise a high degree of control over the Company's actions. In addition, the
majority of the outstanding shares of Common Stock owned by certain employees
and former employees, other than Mr. Cameron and his affiliates, is subject to a
Stockholders' Agreement dated as of December 10, 1993 (as amended, the
"Stockholders' Agreement"). See "Management" and "Principal Stockholders."
18
<PAGE> 25
SUBORDINATION
The Notes will be unsecured and subordinated to the prior payment in full
of all Senior Indebtedness whether existing upon the consummation of the Old
Notes Offering or thereafter incurred. As of June 28, 1998, after giving effect
to the application of the net proceeds of the Old Notes Offering, the aggregate
outstanding principal amount of all Senior Indebtedness was approximately $229.3
million. In the event of a bankruptcy, liquidation or reorganization of the
Company, the assets of the Company will be available to pay obligations on the
Notes only after all Senior Indebtedness has been paid in full, and there may
not be sufficient assets remaining to pay amounts due on any or all of the
Notes. In addition, the Company may not pay principal or premium, if any, or
interest on the Notes if any Designated Senior Indebtedness (as defined herein)
is not paid when due or any other default on any Designated Senior Indebtedness
occurs and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms, unless, in either case, such amount has been paid in
full or the default has been cured or waived and such acceleration has been
rescinded. In addition, if any default occurs with respect to Designated Senior
Indebtedness and certain other conditions are satisfied, the Company may not
make any payments on the Notes for a designated period of time. Finally, if any
judicial proceeding is pending with respect to any such default in payment of
any Designated Senior Indebtedness, or other default with respect to certain
Designated Senior Indebtedness, or if the maturity of the Notes is accelerated
because of a default under the Indenture and such default constitutes a default
with respect to any Designated Senior Indebtedness, the Company may not make any
payment on the Notes.
FRAUDULENT CONVEYANCE CONSIDERATIONS
Under applicable provisions of the U.S. bankruptcy law or comparable
provisions of state fraudulent transfer laws, if any Guarantor, at the time it
incurs a Guarantee, (a)(i) was or is insolvent or rendered insolvent by reason
of such occurrence, (ii) was or is engaged in a business or transaction for
which the assets remaining with such Guarantor constituted unreasonably small
capital or (iii) intended or intends to incur, or believed or believes that it
would incur, debts beyond its ability to pay such debts as they mature and (b)
received or receives less than reasonably equivalent value or fair
consideration, the obligations of such Guarantor under its Guarantee could be
avoided or claims in respect of such Guarantee could be subordinated to all
other debts of such Guarantor. Among other things, a legal challenge of a
Guarantee on fraudulent conveyance grounds may focus on the value of the
benefits, if any, realized by such Guarantor as a result of the issuance by the
Company of the Notes. To the extent that any Guarantee was a fraudulent
conveyance or held unenforceable for any other reason, the holders of the Notes
would cease to have any claim in respect of such Guarantor and would solely be
creditors of the Company and any other Guarantors whose Guarantee were not void
or held unenforceable.
Each Guarantor will agree, jointly and severally with the other Guarantors,
to contribute to the obligation of any Guarantor under a Guarantee of the Notes.
Further, the Guarantee of each Guarantor will provide that it is limited to an
amount that would not render the Guarantor thereunder insolvent. The Company
believes that none of the Guarantors will be, at the time or as a result of the
issuance of the Guarantees, insolvent, that none of the Guarantors is or will be
engaged in a business or transaction for which its remaining assets constitute
unreasonably small capital and that none of the Guarantors will have intended or
will intend to incur debts beyond its ability to pay such debts as they mature.
Since each of the components of the question whether a Guarantee is a fraudulent
conveyance is inherently fact-based and fact-specific, there can be no assurance
that a court rendering a decision on such questions would agree with the Company
BLUE SKY RESTRICTIONS ON RESALE OF NEW NOTES
In order to comply with the securities laws of certain jurisdictions, the
New Notes may not be offered or resold by any holder unless they have been
registered or qualified for sale in such jurisdictions or any exemption from
registration or qualifications is available and the requirements of such
exemption have been satisfied. The Company does not currently intend to register
or qualify the resale of the New Notes in any such jurisdictions. However, an
exemption is generally available for sales to registered broker-dealers and
certain institutional buyers. Other exemptions under applicable state securities
laws may also be available.
19
<PAGE> 26
ABSENCE OF PUBLIC MARKET FOR THE NEW NOTES
There has previously been only a limited secondary market, and no public
market, for the Old Notes. The New Notes are a new issue of securities, have no
established trading market, and may not be widely distributed. The Company does
not intend to list the New Notes on any national securities exchange or the
Nasdaq Stock Market or to seek the admission thereof to trading on any automated
quotation system. No assurance can be given that an active public or other
market will develop for the New Notes or as to the liquidity of or the trading
market for the New Notes. If a trading market does not develop or is not
maintained, holders of the New Notes may experience difficulty in reselling the
New Notes or may be unable to sell them at all. If a market for the New Notes
develops, any such market may be discontinued at any time. If a public trading
market develops for the New Notes, future trading prices of the New Notes will
depend on many factors, including, among other things, prevailing interest
rates, the Company's results of operations and the market for similar
securities, and the price at which the holders of New Notes will be able to sell
such New Notes is not assured and the New Notes could trade at a premium or
discount to their purchase price or face value. Depending on prevailing interest
rates, the market for similar securities and other factors, including the
financial condition of the Company, the New Notes may trade at a discount from
their principal amount.
20
<PAGE> 27
CAPITALIZATION
The following table sets forth (a) the cash, (b) the asset based financing,
other notes payable and current installments of long-term debt and (c) the
consolidated capitalization of the Company as of June 28, 1998, (i) on an actual
basis and (ii) as adjusted to give effect to the Old Notes Offering and the use
of the net proceeds therefrom. This table should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the Company's consolidated financial statements (including the
notes thereto) included elsewhere herein.
<TABLE>
<CAPTION>
AS OF JUNE 28, 1998
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Cash........................................................ $ 14,265 $ 14,265
======== ========
Asset based financing, other notes payable and current
installments of long-term debt(1):
Asset based financing (IBMCC Working Capital Line of
Credit)................................................ $280,328 $216,424
Asset based financing (IBMCC Special Working Capital
Advance)............................................... 10,000 --
Junior Subordinated Debentures............................ 3,750 3,750
Other debt................................................ 1,603 1,603
-------- --------
Total asset based financing, other notes payable
and current installments of long-term debt...... $295,681 $221,777
======== ========
Long-term debt (excluding current installments):
IBMCC Random Access Note.................................. $ 17,250 $ --
Senior Subordinated Notes due 2006........................ -- 100,000
Junior Subordinated Debentures(2)......................... 20,545 20,545
Other debt................................................ 15,444 11,298
-------- --------
Total long-term debt (excluding current
installments)................................... $ 53,239 $131,843
======== ========
Stockholders' equity (deficit).............................. $(19,145) $(19,145)
-------- --------
Total capitalization.............................. $ 34,094 $112,698
======== ========
</TABLE>
- ---------------
(1) In addition to the amounts shown above, as of June 28, 1998, an additional
$89.7 million and $86.4 million were owed to IBMCC and FINOVA, respectively,
under the IBMCC Working Capital Line of Credit and the FINOVA Inventory Line
of Credit, which amounts were non-interest bearing and were classified as
accounts payable on the Company's consolidated balance sheet. See
"Description of Other Indebtedness -- IBM Credit Corporation" and "-- FINOVA
Capital Corporation."
(2) Net of unamortized discount of $18.2 million. See "Description of Other
Indebtedness -- Other Indebtedness."
21
<PAGE> 28
SELECTED CONSOLIDATED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
The following selected consolidated financial data should be read in
conjunction with the consolidated financial statements of the Company and the
related notes thereto and Management's Discussion and Analysis of Financial
Condition and Results of Operations included elsewhere herein. The consolidated
financial data as of and for the fiscal years ended July 3, 1994, July 2, 1995,
June 30, 1996, June 29, 1997 and June 28, 1998 have been derived from
consolidated financial statements of the Company, which have been audited by
KPMG Peat Marwick LLP, independent certified public accountants. The
consolidated financial statements as of June 28, 1998 and June 27, 1997 and for
each of the years in the three year period ended June 28, 1998, and the report
thereon, are included elsewhere in this Prospectus. The information set forth
herein has been adjusted for stock dividends. See Note 7 of notes to the
Company's consolidated financial statements.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
------------------------------------------------------------------
JULY 3, JULY 2, JUNE 30, JUNE 29, JUNE 28,
1994(1) 1995 1996 1997 1998
---------- ---------- ---------- ---------- --------------
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Net revenues:
Product revenues.......................... $1,019,010 $1,342,323 $1,940,796 $2,126,973 $2,006,161
Service revenues.......................... 75,917 130,940 207,511 353,624 450,471
---------- ---------- ---------- ---------- ----------
Total net revenues................. 1,094,927 1,473,263 2,148,307 2,480,597 2,456,632
Cost of revenues:
Cost of products sold..................... 917,939 1,236,940 1,764,775 1,922,826 1,800,085
Cost of services provided................. 64,300 110,349 168,957 267,554 341,612
---------- ---------- ---------- ---------- ----------
Total cost of revenues............. 982,239 1,347,289 1,933,732 2,190,380 2,141,697
Product gross profit........................ 101,071 105,383 176,021 204,147 206,076
Service gross profit........................ 11,617 20,591 38,554 86,070 108,859
---------- ---------- ---------- ---------- ----------
Total gross profit................. 112,688 125,974 214,575 290,217 314,935
Selling, general and administrative
expenses.................................. 100,790 132,586 192,312 251,963 259,712
Nonrecurring stock compensation costs....... -- -- 18,185 -- --
---------- ---------- ---------- ---------- ----------
Income (loss) from operations...... 11,898 (6,612) 4,078 38,254 55,223
Interest expense, net....................... 17,444 23,151 29,726 37,147 36,663
Other income................................ -- -- -- 462 --
---------- ---------- ---------- ---------- ----------
Income (loss) before income taxes......... (5,546) (29,763) (25,648) 1,569 18,560
Provision (benefit) for income taxes........ (2,225) (509) 28 25 417
---------- ---------- ---------- ---------- ----------
Net income (loss)........................... $ (3,321) $ (29,254) $ (25,676) $ 1,544 $ 18,143
========== ========== ========== ========== ==========
COMMON SHARE DATA: (2)
Basic earnings (loss) per share............. $ (.12) $ (.93) $ (.82) $ .05 .56
========== ========== ========== ========== ==========
Diluted earnings (loss) per share........... $ (.12) $ (.93) $ (.82) $ .05 .53
========== ========== ========== ========== ==========
Basic weighted average number of shares of
common stock outstanding.................. 28,053,165 31,333,300 31,348,340 32,281,463 32,357,968
Diluted weighted average number of shares of
common stock outstanding.................. 28,053,165 31,333,300 31,348,340 33,572,160 34,269,146
========== ========== ========== ========== ==========
OTHER DATA:
EBITDA(3)................................... $ 18,897 $ 146 $ 35,903 $ 56,639 $ 78,569
Cash flow provided by (used in) operating
activities................................ -- (8,954) (74,670) (26,100) 54,809
Depreciation and amortization............... 6,999 6,758 13,640 18,385 23,346
Interest expense, net....................... 17,444 23,151 29,726 37,147 36,663
Capital expenditures........................ 2,420 7,178 19,205 21,737 19,655
Ratio of earnings to fixed charges (4)...... -- -- -- 1.0x 1.5x
</TABLE>
22
<PAGE> 29
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
------------------------------------------------------------------
JULY 3, JULY 2, JUNE 30, JUNE 29, JUNE 28,
1994(1) 1995 1996 1997 1998
---------- ---------- ---------- ---------- --------------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT PERIOD END):
Cash........................................ $ 11,192 $ 12,081 $ 12,603 $ 15,838 $ 14,265
Working capital (deficit) (exclusive of
cash)..................................... (11,338) (49,059) (81,456) (106,666) (84,204)
Total assets................................ 351,777 415,170 590,588 683,590 736,419
Asset based financing (5)................... 134,038 150,975 263,025 338,005 290,328
Total debt (exclusive of asset based
financing)(5)............................. 67,182 66,012 58,911 58,486 58,592
Total stockholders' equity (deficit)........ (2,623) (31,305) (39,515) (37,732) (19,145)
</TABLE>
- ---------------
(1) The statement of operations data for Fiscal 1994 present the results of
operations from August 6, 1993, the date the Company acquired the net assets
of JWPIS.
(2) See Note 1 to the Company's consolidated financial statements for an
explanation of the calculation of weighted average number of shares
outstanding.
(3) Represents income (loss) from operations plus depreciation and amortization
and, in Fiscal 1996, nonrecurring stock compensation costs. The Company has
included information concerning EBITDA in this Offering Memorandum because
it is used by certain investors as a measure of a company's ability to
service its debt obligations. EBITDA is not intended to represent cash flow
from operations as defined by generally accepted accounting principles and
should not be used as an alternative to net income as an indicator of
operating performance or to cash flows as a measure of liquidity.
(4) For purposes of computing the ratio of earnings to fixed charges, fixed
charges consist of interest (including the interest component of rental
expenses) and amortization of debt expense. Earnings consist of earnings
from continuing operations before taxes, plus fixed charges. For Fiscal
1994, Fiscal 1995 and Fiscal 1996 earnings were insufficient to cover fixed
charges by $5.5 million, $29.8 million and $25.6 million, respectively.
(5) Excludes certain non-interest bearing amounts owed to IBMCC and FINOVA which
are classified as accounts payable on the Company's consolidated balance
sheet. See "Description of Other Indebtedness" and Note 5 to the Company's
consolidated financial statements.
23
<PAGE> 30
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This section contains trend analysis and other forward looking statements
based on current expectations. Actual results may differ materially due to a
number of factors, including those set forth in "Risk Factors."
OVERVIEW
ENTEX is a leading provider of integrated PC solutions to meet the
distributed information technology systems and end-user support requirements of
Fortune 1000 companies and other large enterprises. ENTEX offers its customers a
single source for integrated PC management solutions, including sophisticated PC
infrastructure procurement and configuration, outsourcing and desktop migration
and integration services.
During Fiscal 1996 and 1997, the Company completed several acquisitions to
improve its ability to meet customer demands for expanded service offerings,
including (i) Random Access, Inc. ("Random Access"), a provider of information
technology solutions through the sale of microcomputers and technical services
to corporate and institutional clients in the western United States, and (ii)
FCP Technologies, Inc. ("FCP"), a systems integrator specializing in network
integration, migration and consulting services. Each acquisition was accounted
for as a purchase and the results of each have been included in the consolidated
financial statements since the date of the each acquisition. See Note 2 of notes
to the Company's consolidated financial statements.
From its inception, the Company has sold customized PC-based systems to
large corporate clients through its PC Acquisition Services line of business. In
Fiscal 1995, the Company made a strategic decision to accelerate the development
of service solutions complementary to its product solutions. The Company's goal
is to increase its proportion of service revenues, which are typically
characterized by higher gross margins than those obtainable from product sales.
For Fiscal 1998, 1997 and 1996, product sales accounted for 81.7%, 85.7% and
90.3% of total net revenues and 65.4%, 70.3% and 82.0% of total gross profit,
respectively, while services accounted for 18.3%, 14.3% and 9.7% of total net
revenues and 34.6%, 29.7% and 18.0% of total gross profit, respectively.
RESULTS OF OPERATIONS
The following table sets forth the percentage of total net revenues
represented by the items in the Company's statements of operations for the
period indicated:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------
JUNE 30, JUNE 29, JUNE 28,
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Net revenues:
Product revenues...................................... 90.3% 85.7% 81.7%
Service revenues...................................... 9.7 14.3 18.3
----- ----- -----
Total net revenues............................ 100.0 100.0 100.0
Cost of revenues........................................ 90.0 88.3 87.2
----- ----- -----
Gross margin(1)......................................... 10.0 11.7 12.8
Selling, general and administrative expenses............ 9.0 10.2 10.6
Nonrecurring stock compensation costs................... 0.8 -- --
----- ----- -----
Income from operations.................................. 0.2 1.5 2.2
Interest expense, net................................... 1.4 1.4 1.5
Income (loss) before income taxes....................... (1.2) 0.1 0.7
Provision (benefit) for income taxes.................... -- -- --
----- ----- -----
Net income (loss)....................................... (1.2)% 0.1% 0.7%
</TABLE>
- ---------------
(1) Product gross margin as a percentage of product revenues and service gross
margin as a percentage of service revenue for each period was as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------
JUNE 30, JUNE 29, JUNE 28,
1996 1997 1998
-------- -------- --------
<S> <C> <C> <C>
Product gross margin............................... 9.1% 9.6% 10.3%
Services gross margin.............................. 18.6% 24.3% 24.2%
</TABLE>
24
<PAGE> 31
Fiscal 1998 Compared to Fiscal 1997
The Company's net income improved in Fiscal 1998 to $18.1 million compared
to net income of $1.5 million in Fiscal 1997. The improvement was primarily a
result of growth in the services business.
Product revenues. Product revenues were $2,006.2 million in Fiscal 1998 as
compared to $2,127.0 million in Fiscal 1997, a decrease of $120.8 million or
5.7%. While the Company experienced overall unit growth in sales of desktops,
laptops and server units during Fiscal 1998, the revenue decline reflects lower
average sales prices due to manufacturers' price reductions.
Service revenues. Service revenues were $450.5 million for Fiscal 1998 as
compared to $353.6 million for Fiscal 1997, an increase of $96.9 million or
27.4%. Service revenues as a percentage of total net revenues increased to 18.3%
for Fiscal 1998 as compared to 14.3% in Fiscal 1997. These increases reflect
increase in demand from existing customers and the addition of new large
accounts. The Company is focused on continuing to increase service revenue.
Gross margins. Total gross margins increased to 12.8% in Fiscal 1998 as
compared to 11.7% in Fiscal 1997. Product gross margin as a percentage of
product revenues increased to 10.3% or $206.1 million in Fiscal 1998 as compared
to 9.6% or $204.1 million in Fiscal 1997. These increases reflect the Company's
efforts to improve product margins through improved controls over price
protection arrangements and vendor allowances and the Company's participation in
certain manufacturers' programs designed to increase sales of specific products.
Future product margins may be adversely influenced by manufacturers' pricing
strategies and increased competition. Service margin percentage remained
essentially flat at 24.2% in Fiscal 1998 and 24.3% in Fiscal 1997.
Selling, general and administrative expenses. Selling, general and
administrative expenses increased slightly to $259.7 million in Fiscal 1998 as
compared to $252.0 million in Fiscal 1997. Selling, general, and administrative
expenses as a percentage of total revenues increased to 10.6% in Fiscal 1998
from 10.2% in Fiscal 1997, reflecting increased investments in enterprise
training and field operations to support service revenue growth.
Income from operations. Income from operations was $55.2 million in Fiscal
1998 as compared to $38.3 million in Fiscal 1997, an increase of $17.0 million.
The increase reflects growth in the higher margin service business and
improvements in product gross margins, while containing selling, general and
administrative expenses to support the service business expansion.
Interest expense, net. Net interest expense decreased slightly to $36.7
million in Fiscal 1998 from $37.1 million in Fiscal 1997, a decrease of $484
thousand or 1.3%. The decrease was driven by reductions in debt levels.
Provisions for income taxes. The Company utilized net operating loss
carryforwards to offset federal income tax requirements in Fiscal 1998. While
the Company considered the improved operations over the course of Fiscal 1997
and 1998, the Company did not believe that it had sufficient reason to conclude
that it was more likely than not that the deferred tax asset would be realized
given softness in the product business. The Company will reevaluate the
foregoing premise in connection with future periods.
Net income. As a result of the factors mentioned above, net income in
Fiscal 1998 was $18.1 million as compared to net income of $1.5 million in
Fiscal 1997.
Fiscal 1997 Compared to Fiscal 1996
The Company's net income improved in Fiscal 1997 to $1.5 million compared
to a net loss of $25.7 million in Fiscal 1996. The improvement resulted from an
increase in product gross margins attributable to improved controls over vendor
programs, an increased percentage of higher margin services in the revenue base
and the effect of a non-recurring stock compensation charge in Fiscal 1996.
Product revenues. Product revenues were $2,127.0 billion in Fiscal 1997 as
compared to $1,940.8 billion in Fiscal 1996, an increase of $186.2 million or
9.6%. The increase was primarily due to an increase of $159 million in equipment
sales and a $27 million increase in software sales. The increase in equipment
sales
25
<PAGE> 32
reflected the sale of more desktops, laptops and server units to existing
customers as well as new customers, although at a lower average sales price due
to manufacturers' price reductions.
Service revenues. Service revenues were $353.6 million in Fiscal 1997 as
compared to $207.5 million in Fiscal 1996, an increase of $146.1 million or
70.4%. The increase was due to higher professional service and outsourcing
revenues which were favorably affected by the acquisition of FCP, increased
sales to existing customers and the addition of new customers. An increase in
unit volume of products sold, such as desktops and laptops, also contributed to
the growth in service revenues which the Company believes will continue to
create demand for services such as configuration and installation. The Company's
emphasis on growing service revenues was reflected in the growth of service
revenues as a percentage of total net revenues from 9.7% in Fiscal 1996 to 14.3%
in Fiscal 1997.
Gross margins. Total gross margins increased to 11.7% in Fiscal 1997 from
10.0% in Fiscal 1996, primarily due to the increased product and service
revenues, improved cost controls and increased service revenues in the mix of
products sold. Product gross margins were 9.6% in Fiscal 1997 as compared to
9.1% in Fiscal 1996. The increase in product gross margins was primarily due to
the Company's efforts to improve controls over price protection arrangements and
vendor allowances and to a lesser extent the Company's involvement in certain
manufacturers' programs designed to increase sales of specific products. The
increase was partially offset by competitive pricing strategies. Service gross
margins increased to 24.3% in Fiscal 1997 from 18.6% in Fiscal 1996 as a result
of pricing changes, a greater mix of higher margin professional services and the
Company's ability to improve utilization of its service personnel.
Selling, general and administrative expenses. Selling, general and
administrative expenses were $252.0 million in Fiscal 1997 as compared to $192.3
million in Fiscal 1996, an increase of $59.7 million or 31.1%. The increase was
in support of the Company's growth in services including investments in
enterprise-wide technology infrastructure to support operations.
Income from Operations. Income from operations was $38.3 million in Fiscal
1997 as compared to $4.1 million in Fiscal 1996, an increase of $34.2 million.
This increase was due to overall improved profit margins and the effect of
nonrecurring stock compensation costs of $18.2 million which were recorded in
Fiscal 1996.
Interest expense, net. Net interest expense was $37.1 million in Fiscal
1997 as compared to $29.7 million in Fiscal 1996, an increase of $7.4 million or
25.0%. The increase was due to increased interest rates charged to the Company
by lenders and increased financing to support revenue growth.
Provisions for income taxes. The Company utilized net operating loss
carryforwards to offset federal income tax requirements for Fiscal 1997 and
1996. Although the Company recognized net income for Fiscal 1997, based on the
history of negative pretax earnings, the Company determined that it was more
likely than not that the deferred tax asset would not be realized.
Net income. As a result of the factors mentioned above, net income was
$1.5 million in Fiscal 1997 as compared to a net loss of $25.7 million in Fiscal
1996.
26
<PAGE> 33
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth certain unaudited quarterly statements of
operations data for the eight quarters ended June 28, 1998, as well as such data
expressed as a percentage of total net revenues. The unaudited data has been
prepared on the same basis as the audited financial statements appearing
elsewhere herein, and include all adjustments, consisting only of normal
recurring adjustments, necessary for a fair presentation of such information for
the periods presented. Such statement of operations data should be read in
conjunction with the consolidated financial statements of the Company and the
related notes thereto appearing elsewhere herein. The operating results for any
quarter are not indicative of the operating results for any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------------------------------
SEPTEMBER 29, DECEMBER 29, MARCH 30, JUNE 29,
1996 1996 1997 1997
------------- ------------ --------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C> <C>
Net revenues:
Product revenues........ $525,962 $552,609 $506,370 $542,032
Service revenues........ 71,674 84,770 92,824 104,356
-------- -------- -------- --------
Total net revenue..... 597,636 637,379 599,194 646,388
-------- -------- -------- --------
Cost of revenues:
Cost of products sold... 482,716 501,181 456,088 482,841
Cost of services
provided.............. 54,039 63,510 71,161 78,844
-------- -------- -------- --------
Cost of revenues........ 536,755 564,691 527,249 561,685
-------- -------- -------- --------
Product gross margin...... 43,246 51,428 50,282 59,191
Services gross margin..... 17,635 21,260 21,663 25,512
-------- -------- -------- --------
Total gross margin...... 60,881 72,688 71,945 84,703
Selling, general and
administrative
expenses................ 58,547 66,907 61,811 64,698
-------- -------- -------- --------
Income from operations.... 2,334 5,781 10,134 20,005
Interest expense, net..... 8,132 9,758 9,418 9,839
Other income.............. -- -- -- 462
-------- -------- -------- --------
Income (loss) before
income taxes.......... (5,798) (3,977) 716 10,628
Provision for income
taxes................... 10 5 9 1
-------- -------- -------- --------
Net income (loss)....... $ (5,808) $ (3,982) $ 707 $ 10,627
======== ======== ======== ========
Basic earnings (loss) per
share................... $ (.18) $ (.12) $ .02 $ .33
======== ======== ======== ========
Diluted earnings (loss)
per share............... $ (.18) $ (.12) $ .02 $ .33
======== ======== ======== ========
<CAPTION>
THREE MONTHS ENDED
---------------------------------------------------
SEPTEMBER 28, DECEMBER 28, MARCH 29, JUNE 28,
1997 1997 1998 1998
------------- ------------ --------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C> <C>
Net revenues:
Product revenues........ $500,938 $543,758 $479,267 $482,198
Service revenues........ 105,901 110,622 114,567 119,381
-------- -------- -------- --------
Total net revenue..... 606,839 654,380 593,834 601,579
-------- -------- -------- --------
Cost of revenues:
Cost of products sold... 450,781 486,318 428,968 434,018
Cost of services
provided.............. 79,872 86,953 87,299 87,488
-------- -------- -------- --------
Cost of revenues........ 530,653 573,271 516,267 521,506
-------- -------- -------- --------
Product gross margin...... 50,157 57,440 50,299 48,180
Services gross margin..... 26,029 23,669 27,268 31,893
-------- -------- -------- --------
Total gross margin...... 76,186 81,109 77,567 80,073
Selling, general and
administrative
expenses................ 61,815 63,323 63,995 70,579
-------- -------- -------- --------
Income from operations.... 14,371 17,786 13,572 9,494
Interest expense, net..... 9,669 9,327 8,702 8,965
Other income.............. -- -- -- --
-------- -------- -------- --------
Income (loss) before
income taxes.......... 4,702 8,459 4,870 529
Provision for income
taxes................... 2 6 4 405
-------- -------- -------- --------
Net income (loss)....... $ 4,700 $ 8,453 $ 4,866 $ 124
======== ======== ======== ========
Basic earnings (loss) per
share................... $ .15 $ .26 $ .15 $ --
======== ======== ======== ========
Diluted earnings (loss)
per share............... $ .14 $ .25 $ .14 $ --
======== ======== ======== ========
</TABLE>
27
<PAGE> 34
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------------------------------------------------------------
SEPTEMBER 29, DECEMBER 29, MARCH 30, JUNE 29, SEPTEMBER 28, DECEMBER 28,
1996 1996 1997 1997 1997 1997
------------- ------------ --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Net revenues:
Product revenues........ 88.0% 86.7% 84.5% 83.9% 82.5% 83.1%
Service revenues........ 12.0 13.3 15.5 16.1 17.5 16.9
-------- -------- -------- -------- -------- --------
Total net revenues.... 100.0 100.0 100.0 100.0 100.0 100.0
Cost of revenues.......... 89.8 88.6 88.0 86.9 87.4 87.6
-------- -------- -------- -------- -------- --------
Gross margin(1)........... 10.2 11.4 12.0 13.1 12.6 12.4
Selling, general and
administrative
expenses................ 9.8 10.5 10.3 10.0 10.2 9.7
-------- -------- -------- -------- -------- --------
Income from operations.... 0.4 0.9 1.7 3.1 2.4 2.7
Interest expense, net..... 1.4 1.5 1.6 1.5 1.6 1.4
Other income.............. -- -- -- -- -- --
-------- -------- -------- -------- -------- --------
Income (loss) before
income taxes............ (1.0) (0.6) 0.1 1.6 0.8 1.3
Provision (benefit) for
income taxes............ -- -- -- -- -- --
-------- -------- -------- -------- -------- --------
Net income (loss)......... (1.0)% (0.6)% 0.1% 1.6% 0.8% 1.3%
======== ======== ======== ======== ======== ========
<CAPTION>
THREE MONTHS ENDED
--------------------
MARCH 29, JUNE 28,
1998 1998
--------- --------
<S> <C> <C>
Net revenues:
Product revenues........ 80.7% 80.2%
Service revenues........ 19.3 19.8
-------- --------
Total net revenues.... 100.0 100.0
Cost of revenues.......... 86.9 86.7
-------- --------
Gross margin(1)........... 13.1 13.3
Selling, general and
administrative
expenses................ 10.8 11.7
-------- --------
Income from operations.... 2.3 1.6
Interest expense, net..... 1.5 1.6
Other income.............. -- --
-------- --------
Income (loss) before
income taxes............ 0.8 --
Provision (benefit) for
income taxes............ -- --
-------- --------
Net income (loss)......... 0.8% --%
======== ========
</TABLE>
- ---------------
(1) Product gross margin as a percentage of product revenues and services gross
margin as a percentage of service revenue for each period were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------------------------------------------------------------
SEPTEMBER 29, DECEMBER 29, MARCH 30, JUNE 29, SEPTEMBER 28, DECEMBER 28,
1996 1996 1997 1997 1997 1997
------------- ------------ --------- -------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Product gross
margin............. 8.2% 9.3% 9.9% 10.9% 10.0% 10.6%
Services gross
margin............. 24.6% 25.1% 23.3% 24.4% 24.6% 21.4%
<CAPTION>
THREE MONTHS ENDED
--------------------
MARCH 29, JUNE 28,
1998 1998
--------- --------
<S> <C> <C>
Product gross
margin............. 10.5% 10.0%
Services gross
margin............. 23.8% 26.7%
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically financed its operations with borrowings under
various credit lines. Cash provided by (used in) operating activities was $54.8
million, $(26.1) million and $(74.7) million in fiscal years 1998, 1997 and
1996, respectively. Cash provided by operations during fiscal 1998 resulted
primarily from net income of $18.1 million, depreciation and other non-cash
charges to income, and from changes in operating assets and liabilities. Cash
used in operations in fiscal years 1997 and 1996, respectively, increased due to
greater working capital requirements resulting from higher revenues.
Cash used in investing activities was $19.7 million, $27.8 million and
$33.1 million in fiscal years 1998, 1997 and 1996, respectively. Cash was used
during these periods for capital expenditures and for acquisitions.
Cash provided from (used in) financing activities was $(36.7) million,
$57.2 million and $108.3 million in fiscal years 1998, 1997 and 1996,
respectively. The fluctuations in cash from financing activities during these
periods resulted primarily from changes in the Company's borrowings to support
the business growth and availability of cash from operations.
As of June 28, 1998, the Company's primary source of liquidity consisted of
various financing provided by IBMCC and an asset based financing facility with
FINOVA Capital Corporation. The IBMCC Financing Agreement provides for
borrowings under the IBMCC Working Capital Line of Credit of $525 million, the
interest bearing portion of which was $290.3 million as of June 28, 1998. The
amount of available borrowings under the IBMCC Financing Agreement may be
increased for higher seasonal purchasing requirements, and may be reduced or
terminated by IBMCC upon 60 days prior written notice. Amounts outstanding under
the IBMCC Working Capital Line of Credit bear interest at the prime rate plus
.50% (9.0% at June 28, 1998). Borrowings under the IBMCC Financing Agreement are
secured by the Company's assets, including certain
28
<PAGE> 35
accounts receivable, certain inventories and other assets. The agreement is
subject to annual renewal. As of July 29, 1998, the Company renegotiated this
agreement. This new agreement resulted in a significant reduction in the
financing rate from prime plus 0.50% (9.0% at June 28, 1998) to LIBOR plus 2.10%
(7.75% at July 29, 1998).
In connection with the Company's acquisition of Random Access in September
1995, the IBMCC Financing Agreement was amended to provide for the IBMCC
Long-Term Loan in the original principal amount of $20 million. The IBMCC
Financing Agreement was further amended in December 1996 and July 1997 to
provide for the Short-Term Loan in the original principal amount of $55 million
and the Special Working Capital Advance in the original principal amount of $20
million. The Short-Term Loan was repaid in full during Fiscal 1998. In addition,
$10.0 million of the $20.0 million Special Working Capital Advance has been paid
down. Amounts outstanding under the IBMCC Long-Term Loan and Special Working
Capital Advance bear interest at the prime rate plus 2.50% (11.0% at June 28,
1998). At June 28, 1998, $17.3 million of principal was outstanding under the
IBMCC Long-Term Loan, and $10.0 million of principal was outstanding under the
Special Working Capital Advance.
As of June 28, 1998, the Company had $110 million available for borrowing
under its inventory line of credit with FINOVA. The line of credit is secured by
the Company's inventory financed by FINOVA. At June 28, 1998, the principal
amount outstanding under this line of credit was $86.4 million. Under the terms
of the agreement with FINOVA, the Company pays no interest on this borrowing.
The IBMCC Financing Agreement provides that if Dort A. Cameron III ceases
to own and/or control at least 35% of the issued and outstanding capital stock
of the Company, the Company will be deemed to be in default under the IBMCC
Financing Agreement. In addition, the IBMCC Financing Agreement contains
restrictive covenants which require the Company to, among other things, (i)
maintain a ratio of current assets to current liabilities of at least 0.83 to
1.00; (ii) maintain the total liabilities minus the aggregate outstanding
principal amount of certain indebtedness during each fiscal year at an amount no
greater than $800 million; (iii) not permit the sum of tangible net worth plus
the aggregate outstanding principal amount of certain indebtedness to be less
than $60 million for the fiscal quarter ended December 1997, $48.2 million for
the fiscal quarter ended March 1998 and $38.7 million for all periods
thereafter; (iv) not permit the ratio of EBIT for interest expense for the
period of two consecutive fiscal quarters then ended to be less than 1.40 to
1.00 for the fiscal quarter ended December 1997, 1.60 to 1.00 for the fiscal
quarter ended March 1998 and 1.70 to 1.00 for each fiscal quarter thereafter;
(v) not permit the consolidated net income for the fiscal quarter ended December
1997 to be less than 0.70% of sales for such fiscal quarter and for any fiscal
quarter thereafter to be less than 1.00% of sales for such fiscal quarter; (vi)
not permit the aggregate amount of capital expenditures made in any fiscal year
to exceed $30 million net of dispositions related to such capital expenditures;
and (vii) maintain working capital deficit of no more than ($100.5) million for
the fiscal quarter ended December 1997, ($92.3) million for the fiscal quarter
ended March 1998 and at least ($83.8) million for periods thereafter. As of June
28, 1998, the Company is in compliance with these restrictive covenants except
for (iv) and (v) for which IBMCC has waived compliance.
In addition, the IBMCC Financing Agreement prohibits the Company from
paying cash dividends on Common Stock.
On July 29, 1998, the Company completed the Old Note Offering (see Note 10
of the notes to the Company's consolidated financial statements).
Capital expenditures totaled $19.7 million during fiscal year ended June
28, 1998 and approximately $5 million was committed under existing purchase
orders as of June 28, 1998. The Company believes its current cash balances and
its available credit facilities will be sufficient to meet its anticipated cash
needs for capital expenditures for the next 12 months. The Company intends to
continue to finance a significant portion of its working capital needs through
credit facilities. The Company believes that it may seek to raise additional
funds through public or private equity or debt financing or from other sources
to support the future growth of the business. However, there can be no assurance
that the Company will be able to raise such additional funding.
29
<PAGE> 36
Year 2000 Compliance
The Company uses a significant number of computer software programs and
operating systems in its internal operations, including applications used in
financial business systems and various administration functions. As the Year
2000 approaches, each of these computer systems will be affected in some way by
the rollover of the two-digit year value to 00. If these systems are unable to
properly recognize date sensitive information when the year changes to 2000,
they could generate erroneous data or cause a system to fail. The Company is
utilizing both internal and external resources to identify, correct or reprogram
and test the systems for Year 2000 compliance.
ENTEX classifies its Year 2000 project into five phases: inventory,
assessment, renovation, validation and implementation. Inventory is the process
in which all electronic/computer components are defined for all systems (IT and
non-IT). Assessment is the process in which all components are classified as
either compliant or non-compliant. Renovation is the process in which a system
is upgraded, replaced or retired. Validation is the process in which compliant
systems are tested within the Company's infrastructure to validate that either
the initial compliant assessment is correct or the upgrade or replacement from
the renovation phase is compliant within the Company's infrastructure.
Implementation is the process in which a compliant system is installed into the
Company's production environment and is utilized to support business operations.
The Company completed an inventory of its IT systems in December 1997. More
than 30 systems were identified, prioritized according to criticality to
business operations, and assessed for current compliance status. Based on the
status, the Company has scheduled each system for either renovation or
validation. The Company is now in the renovation or validation phases of its IT
systems and currently intends to implement these systems by June 1999. The
Company is currently implementing the R3(TM) Enterprise Resource Planning System
from SAP at an estimated cost of $30 million over the twelve months ending March
1999. As of June 28, 1998, the Company has spent approximately $8 million. The
Company's inventory and assessment of its non-IT systems (facilities and
warehouse-based, including scanners, conveyers and security systems) is expected
to be completed by December 31, 1998, followed by any required renovation. All
validation and implementation of these non-IT systems is expected to be
completed by June 1999. The Company expects to spend approximately $2 million to
$5 million in addition to the SAP implementation to complete its Year 2000
project upgrade.
In addition to upgrading its own systems, the Company has contacted certain
significant customers and suppliers to determine their Year 2000 compliance
profile. To date, the Company has not received any information which would
indicate that the Year 2000 will result in any significant disruption from them.
The Company currently intends to complete joint testing of Year 2000 date data
with its EDI customers and suppliers by June 1999.
All potential risks and uncertainties associated with the Year 2000 issue
can not be fully and accurately quantified. A contingency plan has been
developed to renovate existing systems if the planned implementation of the SAP
replacement system fails to adequately deal with the Year 2000 issue. Other
contingency plans will be developed if third party data interchange partners
fail compliance testing or if the replacement or renovation of other existing
systems is not on schedule. Although the Company does not believe that any
additional costs or potential loss in revenue will have a material adverse
effect on the Company's business, operating results or financial condition, the
Company is still analyzing its computer systems, and, to the extent they are not
fully Year 2000 compliant, there can be no assurance that the costs necessary to
update software or potential systems interruptions would not have a material
adverse effect on the Company's business, operating results and financial
condition.
30
<PAGE> 37
BUSINESS
THE COMPANY
ENTEX Information Services, Inc. is a leading provider of integrated PC
management solutions to meet the distributed information technology systems and
end-user support requirements of Fortune 1000 companies and other large
enterprises. The Company's integrated PC management solutions include PC
Acquisition Services (multi-vendor product procurement customized to meet
specific end-user requirements); Outsourcing Services (support services for the
total PC infrastructure including network management, help desk and deskside
support, and asset management); and Network, Professional and Migration Services
(consulting and implementation services for network design, integration,
migration and conversion). ENTEX provides a single source integrated service for
its customers' PC/server platforms (system design, operations support and
product procurement) which management believes can enhance the value of their
information technology investment, significantly reduce their operating expenses
and improve management control over their existing and future information
technology systems.
The proliferation of complex PC/server network systems and support
infrastructures coupled with rapidly changing technology lifecycles has
significantly increased the management requirements and cost of distributed
information technology systems. As a result, many organizations are outsourcing
the management and support of their PC and network infrastructure needs. The
Company believes that key criteria which businesses consider when evaluating PC
and network integration service providers include the provider's ability: (i) to
deliver an integrated, cost-effective solution spanning the PC and network
lifecycle; (ii) to supply multi-vendor PC and network products customized to
specific end-user demands; and (iii) to provide consistent services on a
national basis. The Company believes its size and scope of operations, its
existing base of PC outsourcing contracts and its experience in managing various
technology platforms enable it to offer best practice methodologies which are
more effective than in-house systems which could be developed by its customers
acting on their own. Management believes its integrated PC management solutions
allow its customers to reallocate resources towards their core competencies and
enhance competitiveness with access to leading edge technology.
ENTEX was formed in August 1993 in a management-led buyout of the
information systems business of JWPIS. The Company's principal stockholders are
Dort A. Cameron III, Chairman of the Company's Board of Directors, and entities
controlled by Mr. Cameron. Other equity holders of the Company include certain
executives and employees of the Company, IBM and Microsoft. At June 28, 1998,
ENTEX employed over 8,200 personnel, including temporary employees, providing
national coverage from 48 branch offices covering all major U.S. cities. Of the
more than 8,200 employees, approximately 3,900 were dedicated on-site technical
professionals at customer locations. In addition to ENTEX's North American
operations, in 1994 the Company formed a global alliance with several leading
international PC systems integrators and leading international hardware and
software vendors to provide multi-national corporations with a single point of
contact to manage worldwide information technology product and service
requirements. This alliance covered 35 countries in June 1998.
BUSINESS STRATEGY
The Company's objective is to be the premier provider of integrated
PC-management solutions to meet the distributed information technology systems
and end-user support requirements of Fortune 1000 and other large enterprises.
Key elements of the Company's strategy are to:
Leverage Customer Relationships to Expand Services Provided. The Company
believes that once it has begun delivering efficiency improvements and cost
savings to a customer, it has the opportunity to enhance its relationship by
selling additional services. The Company realizes higher profit margins by
leveraging its initial marketing costs and realizing economies of scale when
providing incremental services to a customer. The Company's strategy is to
leverage existing customer relationships to expand the number of services it
provides to each customer and to increase the number of affiliated operations of
such customers to which it sells services. In Fiscal 1995, the Company had 51
customers which purchased products and services totaling at least $5 million. In
Fiscal 1998, those same customers had more than doubled their aggregate
purchases of services from $57.9 million in Fiscal 1995 to $134.7 million.
31
<PAGE> 38
Expand Customer Base by Targeting Outsourcing and Integration
Services. The Company targets the Fortune 1000 and other large enterprises with
over 1,000 installed PCs to provide its outsourcing and integration services.
Management believes many of these companies have limited information technology
resources and legacy information technology systems and are prepared to
outsource to the Company rather than perform on their own the necessary system
upgrades and migrations to new information technology platforms. Historically,
the Company used its product procurement relationships to initiate the marketing
of outsourcing and integration services. The Company augments this strategy by
capitalizing on its industry leadership in outsourcing and system migrations by
initiating customer relationships with higher margin service offerings and
following with product procurement.
Focus Marketing on System Migrations. The Microsoft Windows NT(TM), Intel
Pentium(TM) processor-based operating platform is rapidly becoming the preferred
technology system standard for larger enterprises. ENTEX has completed PC and
server migrations on approximately 232,000 units as of June 28, 1998, including
a 40,000 desktop migration transitioning one customer's business to a 32-bit
Windows NT(TM) environment, which management believes is one of the largest
32-bit migrations undertaken in the United States to date. The Company's
strategy is to leverage its experience, reputation and capabilities in
outsourcing and product procurement and its relationships with major
corporations to market the design and implementation of system migrations for
PCs and servers. In addition, the Company believes its migration projects
provide opportunities to market outsourcing services to support these new
systems, as well as procurement of equipment that is typically installed in
migration projects.
Maintain Technological Leadership by Leveraging Strategic Alliances with
Vendors. The Company's position as a leading PC systems integrator enables it
to establish and maintain strategic relationships with leading OEMs and
suppliers such as Compaq, HP, IBM and Microsoft. Such alliances provide the
Company's technical staff access to the latest product and technology
developments before commercial release, allow the Company's sales and service
personnel to regularly attend manufacturers' on-site presentations and training
and enable the Company to provide its customers with cost-effective purchasing
and financing alternatives. The Company's strategy is to continue building
technological leadership through strong vendor relationships which enhance the
Company's ability to implement and/or support the latest technologies for its
customers.
Increase Build-to-Order Assembly and Enhance Inventory Management. The
Company has been shifting the focus of its product distribution strategy from
product resale to providing value-added services including configuration and
build-to-order assembly. These value-added services enhance its vendor and
customer relationships, accelerate inventory turns and modify the inventory mix
from finished goods to more cost effective component parts. Although the
Company's inventories increased from $184.0 million as of June 29, 1997 to
$192.8 million as of June 28, 1998, or 4.8%, the Company's inventory turns
improved from 10.5x for Fiscal 1997 to 11.4x for Fiscal 1998. The increase in
inventory levels was due to additional in-transit inventories. The Company's
strategy is to continue reducing its inventory investment while improving
product availability and delivery schedules by increasing build-to-order
assembly services for several of the leading computing equipment OEMs. The
Company is currently providing build-to-order assembly for IBM, Compaq and HP
products.
Reduce Costs and Enhance Customer Service Through Centralization. The
Company invests in its infrastructure, both in terms of personnel and systems,
to increase its operating efficiency while providing high levels of customer
service at lower cost for its customers. PC acquisition, distribution and
configuration services are provided from a national integration and distribution
center, and network integration and support services are provided from a
national service center. Both national centers are located near Cincinnati,
Ohio. The Company believes its integration and distribution center provides
high-quality, build-to-order assembly and configuration services with a customer
reported error free rate of 99.7%. The Company's strategy is to continue
investing in its centralized services to gain economies of scale in operations
and enhance quality control and customer service.
32
<PAGE> 39
INDUSTRY BACKGROUND
The information technology industry is undergoing significant changes. The
mainstays of computing since the mid 1980's were mainframes and decentralized PC
networks. However, with computer chips doubling in capacity every 18 months and
with the advent of Internet and Intranet network connectivity, technology users
are increasingly focusing on: (i) dealing with legacy systems as enterprises
migrate to new architectures and platforms; (ii) accelerated technology
obsolescence; (iii) the installation of advanced technology and implementation
of network computing; (iv) the selection of packaged applications and network
infrastructures; and (v) network bandwidth requirements. While the rate of
change in information technology is accelerating, the dependence upon existing
systems for mission critical applications within large corporations is even
greater. Nearly all major large corporations deploy mission critical enterprise
applications over PC/server networks connecting thousands of desktop PCs with
hundreds of servers linked to mainframe hosts and interconnected over multiple
domestic and international sites. Many of these networks consist of a variety of
different computers, running different operating systems and applications. The
Company believes the challenge for companies of managing in this climate of
constant technological change, in which replacement cycles for products are
shortening and technical demands on legacy systems are increasing, all of which
is compounded by a shortage of qualified technical professionals, is placing
strain on many companies' existing resources.
Product Sales. According to a proprietary study developed by Dataquest for
ENTEX, domestic users purchased approximately $99 billion in 1997 in information
technology products. Of the total products purchased in 1997, approximately 74%,
8% and 18% were spent on PC hardware, software and peripherals, respectively.
Information technology product expenditures are forecast by Dataquest to
continue growing at a compound annual growth rate of 6% through 2001, exceeding
$127 billion in annual product sales, due primarily to upgrades to open
architecture platforms such as Windows NT(TM), which is quickly emerging as the
preferred 32-bit operating system in corporate enterprise computing.
Services. According to Dataquest, the information technology services
market represents a high growth market within the information technology
industry and comprises a large complement of vendors and service providers,
providing end-users with competitive selections. The information technology
services market includes maintenance and non-maintenance types of services for
the information technology market. The core service segments include: business
management services, consulting, development and integration, education and
training, hardware maintenance and support, information technology management
services, and software maintenance and support. According to an October 1997
report by Dataquest, the U.S. information services market exceeded $128 billion
in 1997 and is forecast to grow at a compound annual rate of 14% through 2001.
In the information technology submarkets of network integration and outsourcing
services, Dataquest estimates the total U.S. market exceeded $15 billion and $24
billion, respectively, for 1997. Dataquest estimates the markets for network
integration services and outsourcing services to each grow at compound annual
rates of over 15% through 2001.
Management believes that the decision-making process that businesses face
when designing, selecting and deploying information technology solutions is
becoming more costly and complex. Businesses must select from an expanding
number of product options with shortening lifecycles. Businesses seeking to
implement enterprise-wide information management solutions often must integrate
diverse and incompatible hardware and software environments which have
independently evolved within their organizations. Such integration typically
requires the design of a new network, the upgrade of existing hardware and
software, and the migration to new systems. In addition, a shortage of qualified
information technology personnel has limited the ability of many businesses to
capitalize on the latest technologies. Many businesses find it increasingly
difficult and costly to maintain the internal infrastructure needed to support
their networks.
A study published in January 1998 conducted by the Gartner Group, a leading
information technology industry research organization, concluded the cost of
desktop and network capital is less than 30% of the annual technology cost, with
the balance spent on technical support, administration and end user operations.
According to the Gartner Group, the annual cost of a Windows 95 networked PC is
approximately $10,000, resulting in a total cost of ownership as high as $50,000
during its five-year lifetime. As corporations quantify
33
<PAGE> 40
the cost components of supporting their PC and network environments, ENTEX
management believes an increasing number will rely upon third party system
integration and outsourcing to design, build, expand and maintain their
information technology systems.
COMPETITION
The computer product and services industry is intensely competitive and
management believes competition will intensify in the future. As an independent
PC systems integrator, ENTEX competes with companies which can provide a
combination of product procurement and services such as PC systems integrators
and high-end systems integrators, as well as, companies who provide either
products or services such as PC resellers and distributors, specialty service
providers and direct marketers. The Company believes that the key criteria which
businesses consider when evaluating PC network integration service providers
include the provider's ability: (i) to deliver one integrated solution spanning
the PC network lifecycle; (ii) to supply multi-vendor network products
customized to specific end-user demands; and (iii) to provide services on a
national and international basis.
The Company believes mainframe focused traditional systems integrators,
computer resellers and distributors and specialty service suppliers generally
offer limited service capabilities and cannot deliver the total integrated PC
service solutions necessary to increase end-user satisfaction and reduce the
cost of computing for many of these large corporate enterprises. Management
believes these suppliers have been largely unable to meet the demand from large
enterprises for single source sophisticated PC infrastructure services,
outsourcing, and network migration and integration services. The Company
believes independent service providers, such as the Company, are taking market
share from the major OEM service providers faster than the OEMs are contracting
new business. The Company believes this is happening for several reasons
including: (i) customers are looking for single-source providers who support
multiple computer hardware and software platforms; (ii) independent service
providers are viewed as being unbiased toward computer purchase decisions; and
(iii) OEMs are increasingly outsourcing customer maintenance service (including
warranty and post-warranty services) and technical customer support such as help
desk services to independents in order to focus on their core design, technology
and marketing competencies.
PC systems integrators include CompuCom, DEC, GE Capital Information
Technology Solutions, Inacom, Vanstar and Wang. High-end systems integrators
have traditionally been mainframe-oriented service providers who in response to
the proliferation of PC/server systems began offering service and support for
PC-based, distributed computing environments. High-end systems integrators
include Andersen Consulting, Computer Sciences Corporation, IBM Global Services
and SHL Systemhouse, a division of MCI Communications. PC distributors and
resellers, including Inacom, MicroAge and Tech Data, have continued to increase
their level of services and to provide more comprehensive desktop support.
Specialty service providers are firms who have focused their business
exclusively on providing PC and network related services and include DecisionOne
and Technology Service Solutions. Direct marketers include Dell, Gateway, Micron
and Unisys. In addition to these large national companies, ENTEX also competes
against numerous regional and local companies, many of which have long-standing
customer relationships. The principal competitive factors in the Company's
industry include the breadth and quality of product and service offerings,
product availability, pricing, and expertise and size of technical workforce.
The Company believes that it competes favorably with respect to each of these
factors.
Some of the Company's competitors have greater financial, technical and
marketing resources. As a result, such companies may be able to respond more
quickly to new or emerging technologies and changes in customer needs or devote
more resources to the development, promotion and sales of their services than
the Company. In addition, competition could result in price decreases and
depress gross profit margins in the industry. Further declines in the Company's
gross margins may exacerbate the impact of fluctuating net revenues and
operating costs on the Company's operating results and have a material adverse
effect on the Company's business, operating results and financial condition.
34
<PAGE> 41
PRODUCTS AND SERVICES
ENTEX offers its customers a single source for integrated PC management
solutions which encompass the design, configuration, integration and on-going
management of an enterprise's distributed computing systems. Through its
research and extensive experience, the Company has identified and quantified the
cost components of supporting the PC and network computing environment. ENTEX
works closely with its customers to identify opportunities for reducing total
costs while improving end-user support by developing and implementing an
integrated services solution. Management believes that tangible cost and
productivity benefits of ENTEX's integrated approach are: (i) better product
sourcing; (ii) rapid, consistent and high quality configuration and delivery;
(iii) efficient multi-location project roll-out; (iv) enhanced asset management;
(v) improved network design and operation; (vi) higher system and network
availability; (vii) faster resolution of help desk inquiries; (viii) faster
response and settlement of repair requests; and (ix) accurate performance
metrics and systems monitoring capability. ENTEX's value-based solutions are
intended to lead to higher end-user satisfaction, easier PC and network
management and reduced computing costs.
ENTEX delivers total technology management solutions to its customers at
the desktop, network and enterprise level. These services encompass three
primary areas of expertise including PC Acquisition Services; Outsourcing
Services; and Network, Professional and Migration Services.
PC Acquisition Services. The Company sells and distributes a full range of
multiple vendor personal computer and network products, software and
peripherals, providing its customers with a single source for all their product
needs. To ensure product availability, the Company maintains a large inventory
(which was approximately $192.8 million as of June 28, 1998) at its ISO 9001
certified Integration Center located in Erlanger, Kentucky, which is adjacent to
the Greater Cincinnati Metropolitan International Airport. At June 28, 1998,
this inventory consisted of over 11,000 SKUs.
Customers use the Company for product procurement because ENTEX provides
high product availability, rapid system configuration, and accurate and reliable
product shipment. The Company's customers improve their purchasing decisions by
leveraging the Company's extensive experience in evaluating products for
performance, reliability, ease of use and compatibility with other hardware and
software products. Customers also benefit from the Company's logistics
management services, which involve the coordination of product delivery, receipt
and installation. ENTEX provides the customer with extensive support ranging
from product information to delivery estimated time of arrivals to ordering and
billing support through its centralized Corporate Account Center (with over 270
dedicated support professionals) located in Mason, Ohio.
The Company charges separately for configuration services. The Company's
configuration processes load and configure operating systems, applications and
proprietary software to customer specifications. Through vendor build-to-order
programs, ENTEX receives system components from OEMs and completes the
manufacturing process to a customer's specific requirements. In Fiscal 1998,
configuration services accounted for approximately $14.1 million of total net
revenues. In Fiscal 1998, more than 99% of non-configured in-stock orders were
shipped same day, while 95% of in-stock configured systems were shipped within
48 hours of order placement. Using the Company's inventory management systems,
the Company is able to track inventory on a real-time basis from point of
receipt through shipment. The Company's inbound product tracking, expediting and
second sourcing techniques further enhance ENTEX's ability to provide high
product availability while improving its inventory turns.
OEMs typically build to forecast rather than to order. To enhance product
availability, OEMs are contracting with third party assemblers to assemble
components into open bays and mass customize per customer specifications.
ENTEX's model for product delivery is based on mass customization, rather than
mass production. ENTEX was a pilot member of IBM's Joint Manufacturing Agreement
Program, which is now the Authorized Assembler Program ("AAP"). The Company also
recently commenced final assembly under HP's channel assembly program and
Compaq's final assembly program. These programs have provided ENTEX with the
essential ingredients to increase its mass customization efforts through a
"build-to-order" final assembly approach.
35
<PAGE> 42
In Fiscal 1998, over 63% of all desktop PCs, 52% of all laptop PCs and 42%
of all servers shipped by ENTEX were configured with additional hardware
components, customer specific software and proprietary applications. The Company
customizes an average of 25,000 units every month. Most configured systems are
then pre-tested on a mirror-image of the customer's operating environment to
ensure seamless and virus-free delivery and integration with the customer's
information technology infrastructure. The Company's system configuration
operations are located in an environmentally controlled and electrostatic
discharge free area of the Company's integration center that supports staging,
bench-testing, asset tagging and warranty labeling for customer-specific
configuration of CPUs, application and customer proprietary software, memory,
network cards and other peripherals.
The Company sources products from over 2,400 manufacturers including Cisco,
Compaq, DEC, HP, IBM, Intel, Kingston, Microsoft, NEC, 3Com and Toshiba. Working
through direct relationships with 149 of the largest computer related
manufacturers in the world, ENTEX has formed strategic relationships with these
manufacturers, in addition to carrying the products of over 2,300 additional
manufacturers. In addition, through second sourcing arrangements with some of
the largest wholesale distributors in the country including Ingram Micro and
Tech Data, ENTEX can provide virtually any PC-related product which a customer
requires.
Through ENTEX, customers may purchase application software either in
separate "shrink-wrapped" units or on a VLA basis. In Fiscal 1998, over 70.7% of
the application software purchased from ENTEX was on a VLA basis. Under VLAs, a
customer receives discounts for site licenses based on the number of sites. The
Company also provides related software management services which reduce the
administrative costs associated with ensuring compliance with site licenses.
Customers may also provide the Company with their proprietary software for
installation. The Company's System Builder is an automated system which loads
and configures operating system, application and proprietary software to
customer specifications. Utilizing its System Builder electronic configuration,
ENTEX downloads two terabytes of customer software every day. Unlike traditional
configuration methods which require the copying of software from one hard disk
to another, System Builder utilizes a 100 megabit per second Ethernet-based
asynchonous transfer mode system infrastructure which can rapidly download
software from ENTEX's servers to multiple PCs simultaneously. The Company has
over 600 ports to load software onto PCs at any one time. Management believes
its system loading process is one of the most advanced in the industry.
Outsourcing Services. Outsourcing -- or hiring outside experts to help
manage information technology functions -- is becoming more common among
enterprises worldwide. Management believes companies have many reasons to
outsource, but the most common are: (i) outsourcing is a logical extension of
the propensity among companies to shed non-core components of their businesses
(e.g. claims processing, payroll or facility maintenance) and turn them over to
vendor specialists; (ii) outsourcing is viewed as another tool to help them stay
competitive, often by acquiring access to leading-edge technology; and (iii)
program development is shifting away from expensive in-house proprietary
applications to outsourced programming incorporating flexible enterprise
applications.
While some outsourcing contracts are all encompassing, most deals involve
the responsibility for one or more information technology functions such as the
help desk, deskside support, network support and asset management. Then as
circumstances dictate, customers may target additional information technology
areas for outsourcing. ENTEX's customers may choose from a variety of
outsourcing options and/or create a customized solution by contracting for
discrete services or bundling services to form an integrated approach. The
Company provides customers with outsourcing services under long term contracts
(approximately 45% of the 100 largest contracts as of June 28, 1998 had terms of
two years or more) and short term contracts (terms of less than twelve months),
although many of these contracts are terminable, some upon short notice.
Outsourcing services are typically provided through a mixture of on-site and
centrally managed resources. All outsourcing contracts have an on-site element.
As of June 28, 1998, the Company's 100 largest contracts had values for the life
of the respective contract ranging up to $67 million, although many of these
contracts have been substantially performed and/or may be terminable upon short
notice. The Company may incur significant initial capital investments consisting
of both personnel costs and capital expenditures, which are then recovered over
the life of the contract.
36
<PAGE> 43
ENTEX is one of the leaders in PC outsourcing in the U.S. As of June 28,
1998, the Company had multi-year system outsourcing service contracts covering
more than 605,000 PCs and servers. The Company believes it will continue its
leadership position in PC outsourcing services due to its best practice
methodology, diverse installed base, SLA approach and centralized operations.
As part of its outsourcing capabilities, the Company offers a variety of
core support services including PC and network operation and support services;
maintenance and repair; warranty services; and system management and upgrades.
Desktop support services include installation, moves, adds, and changes to
desktop computing devices. In addition, deskside services include on-going
support of PCs from an end-user perspective, including application enablement,
optimization and connectivity.
The Company provides on-site help desk services at customers' locations, as
well as centrally through the Company's SolutionLine service. Help desk services
provide support for end-user hardware and software inquiries and support leading
hardware, software and network products. On-site help desk support is provided
by the Company's highly trained personnel 24 hours per day, seven days per week.
By outsourcing help desk services, customers are able to reduce training and
system costs, benefit from the Company's extensive knowledge and experience,
reduce the time for problem resolution and increase closure rates. The Company
believes that its help desk services create new sales opportunities for other
Company services.
The Company has recently emphasized its SolutionLine service for
centralized help desk operations. SolutionLine is located in the National
Service Center ("NSC") and is staffed by 161 technical support engineers.
SolutionLine supports every leading manufacturer's PC and network hardware
products, as well as over 70 software products, including certain customer
proprietary products. The Company utilizes automatic call dispatch equipment and
knowledge bases to ensure high quality, responsive service. Customers benefit
from the broader technical expertise of the larger group of engineers who staff
SolutionLine and experience faster response times than may be possible with an
on-site operation that provides limited help desk support. In addition, the
Company believes that by increasing its centralized help desk operations, it
will be able to monitor more carefully help desk activity, including response
times and call closure rates. A central operation also improves the Company's
ability to gauge product performance, enabling it to communicate product defects
to vendors more effectively and to make more valuable purchasing recommendations
to its customers.
Installation, maintenance and repair services are available 24 hours per
day, seven days per week, by dedicated, on-site personnel or the Company's field
technicians. The Company has established strict performance standards for its
service technicians which require them to respond within established time limits
and has in place escalation procedures built into service contracts to ensure
timely response. Customers benefit from the Company's extensive installation
experience and investment in technical training and certification. Each ENTEX
service technician is manufacturer-certified. The Company believes that its
installation and integration services, as well as its maintenance and repair
capabilities, reduce downtime and increase the stability of its customers'
systems and prolong the useful lives of its customers' technology assets.
An integral part of the Company's core support services is ServiceLine, the
Company's centralized national dispatch center. Customers may call ServiceLine
on an around the clock basis. Service requests are automatically logged and
dispatched to field engineers via cellular text-based devices or radio-frequency
laptop computers. In addition to the service request, warranty information and
special customer requirements are transmitted to the engineer. Using these
communications devices, service technicians have on-line access to the Company's
products and spare parts information. The Company has also closely integrated
ServiceLine into its SolutionLine help desk services. Calls into SolutionLine
which cannot be resolved over the phone can be escalated to ServiceLine for
dispatch of a field technician. ServiceLine representatives track the service
job and compile reports submitted by the field engineer. ServiceLine ensures
that customers requiring assistance have a dedicated point of contact and that
service technicians are able to respond swiftly.
The Company provides a range of extended warranty programs on all products
that it is authorized to service, passing existing manufacturer warranties on to
clients. By contracting for the Company's warranty services, customers can
simplify warranty claims procedures by standardizing service warranties across
different hardware platforms and contacting a single source for all service
requests and obtaining on-site assistance.
37
<PAGE> 44
The Company provides network management services for local-area, wide-area
and enterprise networks. The Company's day-to-day network management operations
assist customers in stabilizing and administering more effectively their
distributed systems. The Company also offers remote management and
administration and support for network managers and administrators through its
centralized enterprise SupportLine services. The Company conducts both on-site
and remote network monitoring. By closely monitoring file server status, disk
statistics and server response times, the Company can recommend ongoing
preventive maintenance measures designed to maximize network availability.
Network, Professional and Migration Services. The Company provides
customers with network design, implementation and integration services on a
project basis. The consulting services which the Company provides include
design, installation and upgrade of local-area, wide-area and enterprise
networks. The Company also assists customers in the implementation of messaging
and Internet/Intranet technologies, provides comprehensive support to network
managers and administrators and helps customers with their network operating
systems, network-based applications and connectivity. The Company has expanded
its capabilities to perform remote network management and systems administration
and centralized enterprise support services from its NSC. Customers benefit from
the Company's extensive experience in designing sophisticated enterprise-level
networks and its ability to deploy networks rapidly and cost-effectively. With
the acquisition of FCP in July 1996, the Company further strengthened its
capabilities in this area by adding experienced skills in enterprise-level
network consulting, design and implementation.
The Company also provides a wide range of PC and server migration services
to assist customers in transitioning from one computing environment to another,
including Windows NT(TM) and BackOffice(TM) upgrades and migrations, local-area
network migrations, desktop operating system migrations and messaging
migrations. Customers purchase these services from the Company to optimize their
use of information technology and reduce their costs and disruption of changing
technology platforms. Windows NT(TM) is emerging as the preferred 32-bit
operating system in corporate enterprise computing. Of the approximately 210
million installed PCs worldwide, one industry analyst estimates that
approximately one half are based on 486/386 technology and will have to be
replaced in order to effectively run new 32-bit operating systems such as
Windows NT(TM). ENTEX has completed PC and server migrations on approximately
232,000 units as of June 28, 1998, the majority of which were to the Windows
platform. Subsequent to such date, ENTEX has contracted for migrations on an
additional 15,000 units to commence during 1998. ENTEX believes it is among the
leaders in system migrations and that it employs one of the largest groups of
Microsoft certified systems engineers to perform such migrations to Windows
based technology. The Company has performed a 40,000 desktop migration which
management believes to be one of the largest 32-bit migrations undertake in the
United States to date. In several of the Company's migration projects, the
Company also provides the hardware, software and peripherals.
OPERATIONS
The Company's sales and service structure combines the benefits of a
flexible, nationwide network of field offices with the efficiencies of
centralized back office functions and personnel, including help desk services,
remote network management, national dispatch services and product acquisition
specialists, designed to support the Company's field personnel. The Company has
48 branch offices located in 30 states. Of these branch offices, five also serve
as area offices to support the Company's five operating regions (East, Midwest,
South, Central and West). The area offices are located in or near Boston,
Massachusetts; Chicago, Illinois; Atlanta, Georgia; Denver, Colorado; and
Sacramento, California. These area offices are charged with the additional
responsibility of supporting and coordinating the sales and support activities
of the branch offices located within each of the five areas and are supported by
senior management personnel at each branch office.
The Company's branch offices employ over 5,600 technical and over 450 sales
personnel. This provides the Company with national sales coverage and the
ability to respond rapidly to any service request. With respect to sales
activities, branch offices are typically responsible for developing and managing
customer relationships, including initial sales-generating activities, proposal
drafting and the pricing of product and service offerings, as well as on-going
account management. General managers and, in the case of larger accounts, senior
level managers at the Company's headquarters, generally supervise and assist
branch offices in these activities. Once the Company has contracted to provide
services, the general managers ensure that
38
<PAGE> 45
proper resources are allocated to provide and manage such services. When on-hand
technical personnel are unavailable to staff projects, the general manager may
be required to hire additional full-time or temporary personnel, or coordinate
with other area managers to relocate existing resources from other projects.
Approximately 3,900 Company employees work full-time at customer sites
nationwide and are fully integrated into a customer's information services
departments, providing such customers with hands-on end-user support and network
management. The Company is currently staffing on-site operations for over 100
customers, many of which include multiple locations. On-site activities consist
primarily of staffing help desk lines, providing core services, such as
maintenance and repair, network management, acquisition advisory services and
coordinating asset management activities. On-site technicians receive support
from the Company's NSC.
The NSC is located in an approximately 155,000 square foot facility in
Mason, Ohio and is the focal point of ENTEX's nationwide service operations. The
NSC houses the Company's Corporate Account Center, SolutionLine, ServiceLine,
the Network Operations Center and ENTEX University. Over 600 employees work at
the NSC. By centralizing all service and support functions in one facility, the
Company is able to leverage the depth and breadth of technical experience to
more effectively support its field technicians. The Company is also expanding
its research and development laboratories at its NSC to develop, among other
things, advanced remote network management.
In Fiscal 1996, the Company expanded its Corporate Account Center ("CAC").
The CAC operates out of the NSC in Mason, Ohio and provides customers with a
single point of contact for sales support, the receipt and processing of product
orders and inquiries regarding product information and recommendations and order
tracking and delivery. CAC personnel are also responsible for ongoing tracking
of industry pricing, communicating changes in vendor prices or policies and
product compatibility information. At June 28, 1998, the CAC was staffed by over
270 personnel, each knowledgeable about the Company's product offerings. By
centralizing order fulfillment functions, the CAC removes time consuming,
clerical responsibilities from its field sales force, resulting in a more
focused sales effort and reduced response time for product orders and inquiries.
The CAC typically receives 117,000 calls per month.
The Company provides its customers with several electronic commerce
options. Order Access-Web is an inter/intranet-based order placement tool with
customized product catalogs, order/invoice information and shipment tracking.
The Company has over 70 customers using the Web based product and is currently
transitioning an additional 110 customers to Order Access-Web from its
predecessor, Order Access. The Company is emphasizing the use of Order
Access-Web by its customers to reduce both the Company's cost of processing an
order and the customer's cost of its procurement process. In addition to Order
Access-Web, ENTEX offers an EDI capability to help its customers automate order
processing and administration, providing reduced costs and higher productivity
for both the Company and the customer. EDI is used by 45 of the Company's
largest customers.
ENTEX's state-of-the-art Integration Center is located in Erlanger,
Kentucky, less than five miles from the Greater Cincinnati Metropolitan
International Airport. During Fiscal 1998, more than 99% of the orders for
non-configured in-stock products which were received by 8 p.m. Eastern Standard
Time were shipped that night and could be received the next day in the
continental United States, while 95% of in-stock configured systems were shipped
within 48 hours of order placement. The facility is 255,000 square feet and is
ISO 9001 certified, the first such facility ISO certified in the industry. The
Company conducts all system configurations and build-to-order final systems
assembly in an environmentally controlled and electrostatic discharge free
section of the Integration Center. The Company utilizes a paperless,
radio-frequency controlled warehouse management system which tracks inventory
from receipt to shipment, provides real-time information on product availability
and ensures accurate order fulfillment.
ENTEX utilizes Skyway as its primary transportation agent, sorting and
consolidating multi-box orders and performing tracking of all outbound
shipments. Skyway is a recognized expert in information technology
transportation acting as the primary shipping agent for Compaq, HP and IBM,
among others. The Company intends to expand its relationship with Skyway to
fully integrate its inventory management system with Skyway's freight management
system to enhance online visibility and decision making along the entire supply
39
<PAGE> 46
chain from vendor to shipping docks, including in-transit merges, reroutes, drop
ship or bypass. Online integration is scheduled to be completed during the
second half of 1998.
The Company has made significant systems investments to develop systems
which enable the Company to provide a better quality of service and reduce costs
for customers. Order Access and Order Access-Web, in conjunction with Catalog
Builder, allow customers to electronically order products and services by
consulting on-line product catalogs. Service Access is used by the Company to
dispatch and communicate with its field technical personnel. PowerHelp manages
incoming service calls and provides on-site help desk personnel with customer
files while managing the escalation process and tracking problem resolution.
AssetPro is the tool which the Company uses to manage customers' computing
assets. Computer Systems Group Information Systems ("CSGIS") is the centralized
order processing and financial accounting and reporting system which allows the
Company to track customer orders and reduce processing time, and the Company's
warehouse management system is used to manage inventory in order to provide
ENTEX customers with high product availability.
Maintaining a consistently high level of technical training across all
branch offices is a fundamental priority for ENTEX. The Company's training
includes certification programs by individual hardware and software vendors, as
well as internally developed courses. ENTEX University, located in the NSC,
regularly schedules and coordinates service training and determines that branch
certification levels are maintained. The Company has adopted a company-wide
review process which ensures that employees at each of its branch offices
achieve training objectives.
PRICING OF SERVICES
Outsourcing services are generally provided to customers pursuant to
service contracts which typically have a minimum term of twelve months and are
renewable annually. Outsourcing contracts can be terminated by the customer for
failure to perform specified services or at the option of the holder upon at
least 30 days notice. Although from time to time certain of the Company's
outsourcing contracts have been terminated, in the aggregate, such early
terminations have not been material. Such contracts provide for pricing on
either a time and materials basis, a fixed price, per seat basis (used primarily
for billing the Company's employees who are assigned to customer locations), or
a performance-oriented SLA. The Company was one of the first in the industry to
price service offerings on other than a time and materials basis. Under the
Company's SLAs, fees for a specific suite of services are tied contractually to
pre-defined performance metrics or are determined on a "per seat" basis. Using
this pricing structure, customers may forecast their costs with greater
predictability, evaluate the effectiveness of ENTEX's solutions based on the
attainment of the predetermined performance metrics in the SLAs, and are more
likely to attain these performance goals. This pricing methodology also provides
incentive to the Company to continuously improve the efficiency and quality of
the services it delivers. To date, revenues derived under performance-oriented
SLAs have accounted for a minority of the Company's revenues but the Company has
recently begun offering these arrangements to a broader range of its customers.
At June 28, 1998, performance metrics are incorporated into approximately 52% of
the Company's 100 largest outsourcing contracts, of which 33% have penalties for
failure to meet the required performance levels.
Network, professional and migration services are generally provided to
customers under consulting contracts with varying terms depending upon the scope
of the engagement but which are typically less than one year. Most of these
contracts provide for payment on a periodic basis, or upon the attainment of
milestones. In a limited number of cases, network, professional and migration
service contracts provide for payment on a time and materials basis. In each
case, revenue is billed in accordance with the terms of the contract.
SALES AND MARKETING
The Company targets its marketing efforts primarily at senior level
executive, financial and information management personnel at Fortune 1000
companies and other large enterprises. ENTEX markets its products and services
through its national sales force of over 450 employees operating from 48 branch
offices. The Company leverages its regional structure by empowering its local
branch offices to initiate, establish and manage accounts in their local area
and tailor service solutions to meet customer needs. On more complex or
40
<PAGE> 47
larger projects, the field offices are supported by the significant additional
available technical expertise at the regional, national or corporate levels.
Although most of the field offices support multiple accounts, several of the
Company's field offices were established to service a single, large account. For
certain national account relationships, either regional or national account
managers are designated specific account coverage. Bid preparation and/or
negotiation is coordinated with senior executives depending upon potential
contract size. In addition to the support from regional, national or corporate
levels, the Company enhances its sales force's technical skills with consistent
training and education, much of which is jointly sponsored by the OEMs.
Management believes by broadening the general skill base of its sales force, it
increases the likelihood of cross selling multiple products and services. The
Company's sales personnel have a sales commission program which is designed to
constitute a substantial portion of the employee's overall compensation. While
sales orders may be placed with the field offices, the Company's CAC is assuming
a greater role in the product order process. Approximately 82% of product orders
in the three months ended June 28, 1998 were placed through the CAC.
Since 1994, the Company has pursued a strategy of building alliances with
large, international systems integrators and service providers in order to serve
large, multi-national customers through a single point of contact and to
increase the Company's market presence abroad. In November 1994, the Company
entered into an arrangement with InfoProducts Europe, a division of N.V.
Koninklijke KNP BT based in The Netherlands, with offices in 17 European
countries ("Info Products"). In December 1995, the Company entered into an
arrangement with Otsuka Shokai in Japan ("Otsuka Shokai"). The Company also has
an arrangement with Migesa in Mexico, Transmarco in Singapore and Senteq in
Australia, as well as others. Collectively, this global alliance has more than
320 international offices located in 35 countries and had total revenues in 1998
in excess of $8.5 billion, with approximately 20,000 employees. In August 1998,
the Company, Info Products and Otsuka Shokai formed a limited liability company
formalizing the global alliance among such companies and providing a mechanism
for other global alliance participants to become formal co-venturers.
In Fiscal 1998, none of the Company's customers accounted for more than 6%
of the Company's total net revenues. In Fiscal 1998, the Company had either sold
product or provided services to approximately one-half of the Fortune 200 U.S.
based companies. The table below lists the names of selected customers of the
Company which purchased products and services in excess of $5.0 million in
Fiscal 1998 and their respective industries.
Banking
ABN AMRO Bank N.V.
Banc One
Bank of Boston
State Street Bank and Trust
Wachovia Bank
Consumer Products
Anheuser Busch
Cola-Cola
Gillette
Mead
Warner Brothers
Information Services
First Data
Lexis-Nexis
M&I Data Services
Pitney Bowes
Simon & Schuster
Manufacturing
AlliedSignal
Union Carbide
Transportation
Toyota
Technology
Hewlett-Packard
Intel
International Business Machines
Microsoft
Motorola
Tivoli Systems
Telecommunications
AT&T
GTE
Pacific Bell
U.S. West
Energy, Petroleum and Chemicals
Florida Power & Light
Koch Industries
Shell Oil
Texaco
Healthcare
Hoffmann-La Roche
Memorial Sloan Kettering
Cancer Center
Schering-Plough
Smithkline Beecham
Warner Lambert
Insurance
Allstate
American Reinsurance
Blue Cross Blue Shield
CIGNA
Firemans Fund Insurance
The Hartford
Metropolitan Life Insurance
Mutual of Omaha
Financial Services
American Express
Bear Stearns
Morgan Stanley
Putnam Investments
Government
State of California
Professional Services
Deloitte & Touche
Jacobs Engineering
KPMG Peat Marwick
41
<PAGE> 48
VENDOR RELATIONSHIPS
The Company's position as a leading PC systems integrator enables it to
establish and maintain strategic relationships with leading manufacturers and
suppliers. Such relationships provide the Company's technical staff access to
the latest product and technology developments before commercial release, allow
the Company's sales and service personnel to regularly attend manufacturers'
on-site presentations and training, and enable the Company to provide its
customers with cost-effective purchasing and financing alternatives.
The Company purchases products directly from more than 2,400 hardware,
software and peripheral manufacturers, generally on a nonexclusive basis. In
Fiscal 1998, the ten largest vendor relationships accounted for 76.7% of product
revenues and 92.2% of MDF, respectively. The following table lists examples of
many of the Company's key vendors:
<TABLE>
<S> <C> <C> <C>
3Com Compaq Madge SCO
Acer Connect McAfee Seagate
Adaptec Corel Megahertz Shiva
Adobe Cornerstone Microcom Sony
APC Digi Microsoft Sun
Apple DEC Mitsubishi Symantec
Ascend Extended Systems Multitech Tech Data
ASI(AssetPro) FTP NEC Tektronix
AST Hayes Netscape Texas Instruments
AT&T HP Nokia Toshiba
Attachmate Hitachi Novell US Robotics
Banyan IBM Okidata WRQ
Bay Networks Ingram Micro Olicom Xerox
Cheyenne Intel Oracle Xircom
Cisco Kingston Panasonic Xylogics
Citrix Lexmark Procom
Claris Lotus Quarterdeck
</TABLE>
The Company's strategy is to reduce its inventory investment while
improving product availability and delivery schedules by increasing
build-to-order assembly services for products from several of the leading
computing equipment OEMs. The Company is certified as a final assembler in the
build-to-order assembly programs for Compaq, HP and IBM. In Fiscal 1998, ENTEX
performed final assembly services for approximately 44% of the IBM desktop PCs
shipped by the Company. The Company has also established relationships with
Microsoft and Compaq to deliver Windows NT(TM) solutions and with Novell to
enhance its engineers' technical skills and capabilities with respect to network
migrations. The Company intends to continue to maintain such relationships and
create new alliances.
The ENTEX/Microsoft Initiative ("EMI") is a dedicated ENTEX business unit
focused on the implementation of Microsoft products and solutions for ENTEX's
large account customers. With the backing of Microsoft, EMI offers ENTEX
customers a highly trained and certified workforce, fully integrated into
ENTEX's total PC management capabilities and nationwide structure. In addition,
the EMI business unit works hand-in-hand with local Microsoft branches to
deliver consistent service and unique service methodologies. Utilizing ENTEX's
national size and scale, customers benefit from a diversity of expertise and
integrated solutions at the point of business. EMI was established in June 1996
and as of June 28, 1998 had approximately 150 ENTEX systems engineers and
consultants, delivering comprehensive support and implementation for Microsoft
products across a broad spectrum of platforms. Each EMI professional team member
receives 360 hours of initial training and 100 hours of training each year
thereafter. EMI's current activities consist primarily of product migrations of
desktop PCs and servers from legacy systems to the Windows NT(TM) operating
system. Management believes larger corporations are increasingly adopting the
Windows NT(TM) system as their preferred operating platform.
The ENTEX/Lotus/IBM Team ("ELITeam") is a strategic partnership with
focused resources for the purpose of establishing an IBM/Lotus line of business
within the ENTEX field organization. The key objectives of the ELITeam are to
create a profitable IBM/Lotus services unit within ENTEX to drive installations
and conversions, build IBM/Lotus skills to industry leading expertise, and
expand IBM/Lotus
42
<PAGE> 49
software revenue and market share. With the backing of IBM and Lotus, the
ELITeam offers ENTEX customers implementation and support expertise for
mission-critical solutions using Lotus Notes(TM) and Domino(TM), as well as
IBM's web-enabled middleware, groupware, and systems management software
products in Windows NT(TM) environments. ELITeam was established in April 1997
and as of June 28, 1998 had over 90 ENTEX technical professionals, delivering
comprehensive support and implementation for IBM/Lotus products in
multi-platform environments, including Windows NT(TM). The ELITeam, fully
integrated into ENTEX's Total PC Management capabilities and nationwide
structure, is one of the largest nationwide teams of IBM/Lotus product
implementation and support experts outside of IBM itself.
PURCHASING AND REBATES
The Company receives volume incentives and rebates from certain
manufacturers related to sales and purchases of certain products which are
recorded as a reduction of cost of products sold when earned. Other incentives
may require specific incremental action on the part of the Company such as
training, advertising or other pre-approved market development activities and
are recognized as an offset to the related costs when the required action is
performed.
Vendors sometimes provide MDF incentive programs to the Company. The MDF
available under these programs are principally determined based on the quarterly
volume of sales or net purchases of the vendor's product. The Company recognizes
the incentives related to volume purchases as purchase discounts which reduce
the cost of products sold when earned. The aggregate MDF paid to a large
solution provider such as ENTEX can be significant. In Fiscal 1998, the total
MDF was $63.6 million. See "Risk Factors -- Dependence on Vendors."
The Company's vendor agreements are believed to be in the form customarily
used by each manufacturer and typically contain provisions which allow
termination by either party upon 30-90 days' notice. Generally, the Company's
vendor agreements do not require it to sell a specified quantity of products or
restrict the Company from selling similar products manufactured by competitors.
Consequently, the Company has the flexibility to terminate or curtail sales of
one product line in favor of another product line as a result of technological
change, pricing considerations, product availability, customer demand and vendor
distribution policies.
The Company attempts to protect itself from inventory obsolescence and
inventory price reductions by negotiating price protection and stock balancing
arrangements with its vendors and enforcing a limited return policy with its
customers. Subject to certain conditions, these arrangements entitle the Company
to receive refunds from manufacturers equal to price decreases on inventory
carried by the Company and provide the Company the ability to return, subject to
certain conditions, including restocking fees, slow moving or obsolete products.
The Company receives price changes from vendors on a daily basis; the changes
generally take effect immediately. The Company takes the position that, due to
its volume and order frequency, in-transit goods are price protected. In
addition, under most vendor agreements, subject to certain conditions, the
Company has the right to return for credit or exchange for other products a
portion of those inventory items purchased, within a designated period of time.
A vendor who elects to terminate a distribution agreement generally will
repurchase from the Company the vendor's products carried in the Company's
inventory.
EMPLOYEES
As of June 28, 1998, the Company had over 8,200 full-time and full-time
equivalent employees, including over 450 in sales, approximately 5,600 in the
Company's field technical service and support operations, and over 460 in
distribution and configuration operations. Approximately 3,900 Company employees
work full-time at customer sites nationwide. None of the Company's employees is
subject to a collective bargaining agreement. The Company has never experienced
a work stoppage and considers its employee relations to be good.
The Company's expanding services business requires the recruiting and
training of a significant number of additional qualified technical personnel,
including project managers and network integration specialists. Frequently, the
Company must rapidly hire a significant number of technical personnel, to staff
projects at customer sites. Competition for qualified technical and sales
personnel is intense, as the Company competes with other service providers, as
well as with its own customers, including those at whose locations ENTEX
43
<PAGE> 50
employees work. The growth of the systems integration industry has created a
premium for a skilled workforce; a survey from the Saratoga Institute estimated
voluntary industry turnover at approximately 17.2% for 1997. In particular, the
Company believes there is a general shortage of trained system engineers, and,
as such, estimates wage inflation of approximately 9% annually for these
positions.
The Company believes that attracting and retaining strong technical, sales
and support staff is essential to meeting the needs of its customers. The
Company believes that its best source of recruiting is through existing employee
referrals. The Company estimates that approximately 39% of its hiring in Fiscal
1998 was through referrals and also believes that there is generally less
turnover among these hires. In addition, the Company employs approximately 60
recruiters to scout qualified technical personnel nationwide and plans to add to
its network of recruiters to assist in expanding its technical employee base.
When the Company is unable to fill positions through either of these methods, it
frequently employs temporary workers (of the Company's existing workforce,
approximately 10% is temporary). Due to the demand for employees in the
industry, the Company estimates that the incremental cost of hiring a temporary
worker is approximately 40% higher than the fully loaded (including benefits)
cost of a full-time employee.
The Company's voluntary employee turnover for Fiscal 1998 was 30.8%. As
demand for the Company's services has grown, the Company has used temporary
workers to fill many jobs and as a result has experienced greater turnover.
The Company's goal is to reduce the employee turnover ratio to
approximately 23% by 2000 through the implementation of new retention measures,
and by focusing on long-term career development initiatives. The Company
believes that developing a career path for individuals includes providing
necessary and cutting edge training and education, providing adequate job
mobility and providing comprehensive and easy to use benefits. Through ENTEX
University, the Company has an annual event which provides additional training
for sales people and technicians. Also, the Company has implemented just-in-time
training by providing access (24 hours a day, seven days a week) to course
offerings via the Internet. The Company believes it can help stagger the
experience levels within the organization while at the same time, offer young
professionals the opportunity to build a solid career path.
FACILITIES
The Company's headquarters are located in Rye Brook, New York, where the
Company leases approximately 31,200 square feet of office space under a lease
which expires on May 30, 2002, approximately 12,100 square feet under a lease
which expires December 31, 1998 and approximately 3,800 square feet under a
lease which expires April 29, 2000. In addition, the Company owns a 255,000
square foot facility in Erlanger, Kentucky which serves as the Company's
Integration Center. The Company also leases approximately 150,000 square feet of
office space in Mason, Ohio, which houses the Company's NSC, including the CAC,
SolutionLine, dispatch services and training centers. The lease for such
property expires on July 17, 2005. The Company leases approximately 19,200
square feet of office space in Canton, Massachusetts to accommodate the
Company's data processing and credit and collections departments under a lease
which expires June 30, 2003.
The Company leases additional office space for sales, services and support
staff in various states. The Company believes that alternate office space is
available on comparable terms in each location.
LITIGATION AND LEGAL PROCEEDINGS
The Company is engaged in legal actions arising in the ordinary course of
business but is not currently a party to any legal actions which could have a
material adverse effect on its business, financial conditions or results of
operations.
44
<PAGE> 51
MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS AND OTHER KEY EMPLOYEES
The executive officers, directors and other key employees of the Company,
and their ages and positions as of June 28, 1998 are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Dort A. Cameron III.................. 53 Chairman of the Board of Directors
John A. McKenna, Jr.................. 43 President, Chief Executive Officer and Director
Kenneth A. Ghazey.................... 42 Executive Vice President, Finance and
Administration, Chief Financial Officer and
Director
Dale H. Allardyce.................... 48 Executive Vice President, Operations
David J. Csira (1)................... 41 Executive Vice President, Field Operations
Michael G. Archambault............... 46 Senior Vice President, Treasurer
Richard P. Bannon.................... 52 Senior Vice President, Controller
Lynne A. Burgess..................... 49 Senior Vice President, General Counsel
John F. Lyons........................ 45 Senior Vice President, Sales and Marketing
Mark G. Mindell...................... 47 Senior Vice President, Human Resources
Richard Nathanson.................... 41 Senior Vice President, Services
William K. Todd...................... 53 Senior Vice President, Manufacturing and
Distribution
R. Randolph Devening (2)............. 56 Director
Linwood A. (Chip) Lacy, Jr. (2) ..... 53 Director
Frank W. Miller (2).................. 53 Director
</TABLE>
- ---------------
(1) Mr. Csira resigned in May 1998.
(2) Member of the Audit and Compensation Committees.
Mr. Cameron co-founded the Company in August 1993, and has served as a
director and Chairman of the Board of the Company since its formation. From
October 1988 to the present, Mr. Cameron has served as the managing general
partner of EBD, L.P., the general partner of The Airlie Group, L.P., a private
investment limited partnership; from June 1984 to the present, as the general
partner of BMA, the general partner of Investment Limited Partnership, a private
investment limited partnership; and from December 1995 to the present as
managing member of Airlie Enterprises LLC, a private consulting company. Mr.
Cameron is currently serving as a Director of TLC Beatrice Company. See "Risk
Factors -- Need to Recruit and Retain Management, Technical and Sales
Personnel."
Mr. McKenna co-founded the Company in August 1993, and has served as a
Director and as President of the Company since its inception and as Chief
Executive Officer since April 1996. From March 1989 to March 1993, Mr. McKenna
held various positions with JWPIS, including Executive Vice President of Sales
and Marketing, President of the Integration Services Division, and most recently
as Senior Executive Vice President. Mr. McKenna held various sales and
management positions at IBM from 1978 through 1987.
Mr. Ghazey joined the Company as Executive Vice President, Finance and
Administration, Chief Financial Officer and Director in January 1997. Mr. Ghazey
served as President, Chief Operating Officer and a Director for Darling
International, a publicly-owned food waste recycler, from 1993 to December 1996,
and as Executive Vice President, Chief Financial Officer and Treasurer of
Darling International from 1990 to 1992.
Mr. Allardyce joined the Company in February 1995 as Executive Vice
President, Operations. From January 1993 to February 1995, Mr. Allardyce served
as Senior Vice President of the TSI Business Unit at THORN Americas, Inc., a
consumer rental company. From March 1982 to December 1992, Mr. Allardyce
45
<PAGE> 52
was employed by The Southland Corporation, an operator of convenience stores,
most recently as Vice President of Distribution, Manufacturing and Procurement.
Mr. Archambault joined the Company in May 1997 as Vice President and
Treasurer and has served as Senior Vice President, Treasurer since March 1998.
From September 1989 to 1997, Mr. Archambault served as Vice President of Finance
and Investor Relations for Symbol Technologies, Inc., a manufacturer of bar code
data capture systems worldwide. From 1988 to September 1989, Mr. Archambault was
Vice President of Finance at American Savings Bank. From 1980 to 1988, Mr.
Archambault held various Accounting and Treasury positions with Combustion
Engineering, Inc., most recently as Director of Investor Relations.
Mr. Bannon joined the Company in December 1996 as Vice President and
Controller and has served as Senior Vice President and Controller since January
1998. From January 1968 to December 1996, Mr. Bannon held various accounting and
finance positions at IBM. Most recently, Mr. Bannon served as Director of
Accounting Services. While at IBM, Mr. Bannon held the positions of Director,
External Financial Reporting; Controller, Storage Systems Division; Controller,
Data Systems Division and Functional Manager Positions in Corporate
Consolidation Accounting and Financial Planning.
Ms. Burgess joined the Company in May 1994 as Vice President and General
Counsel and has served as Senior Vice President and General Counsel since
January 1998. From October 1992 to May 1994, Ms. Burgess was Of Counsel at the
law firm of Collier, Shannon, Rill and Scott, specializing in commercial and
antitrust matters. From August 1978 to October 1991, Ms. Burgess was legal
counsel for various business units within American National Can Company and
served as Assistant General Counsel at American National Can Company from
January 1987 to October 1991.
Mr. Lyons joined the Company in April 1994 as Vice President, Marketing and
has served as Senior Vice President, Sales and Marketing since October 1996.
From August 1993 until March 1994, Mr. Lyons was Vice President, Sales and
Marketing for Carrabassett Spring Water. From July 1976 to July 1993, Mr. Lyons
held various sales and marketing management positions at IBM.
Dr. Mindell joined the Company in March 1998 as Senior Vice President,
Human Resources. Immediately prior to joining the Company, he served as Vice
President & CIO, Organization Networking for Wonderware Corporation, a plant
floor automation software development company. From 1991 to 1996, Dr. Mindell
held the positions of Director, Information Services & Business Reengineering
and Director, Organization Planning & Development for Siemens Corporation, and,
from 1985 to 1991, was President and CEO of Orecon Associates, a human
resources, systems development and business reengineering consulting
corporation.
Mr. Nathanson joined the Company in July 1996 as Senior Vice President,
Network and Professional Services in connection with the Company's acquisition
of FCP, a network integration and professional services consulting firm and has
served as Senior Vice President, Services since April 1997. From February 1984
to July 1996, Mr. Nathanson served as President and Chief Executive Officer of
FCP.
Mr. Todd joined the Company as Director of Distribution in August 1993 in
connection with the acquisition of JWPIS. Mr. Todd served as Vice President of
Logistics from July 1995 to January 1998, and since January 1998, has served as
Senior Vice President of Manufacturing and Distribution at the Company's
Integration Center in Erlanger, Kentucky. From September 1992 to August 1993,
Mr. Todd was Director of Distribution for JWPIS. From September 1982 to August
1992, Mr. Todd held various positions at Wang Laboratories, most recently as
Director of Manufacturing, including two years in Limerick, Ireland.
Mr. Devening has served as a Director of the Company since June 1996. Since
August 1994, Mr. Devening has served as Chairman, President and Chief Executive
Officer of Foodbrands America, Inc., a diversified food manufacturing company.
From April 1993 to July 1994, Mr. Devening served as Vice Chairman and Chief
Financial Officer of Fleming Companies, Inc., a food distribution and marketing
company. From July 1989 to March 1993, Mr. Devening served as Executive Vice
President and Chief Financial Officer at Fleming Companies, Inc. Mr. Devening
serves as a director of Hancock Fabrics Inc., and Hussman Corporation, and is a
director nominee of Factory Mutual Insurance Company.
46
<PAGE> 53
Mr. Lacy has served as a Director of the Company since June 1996. From July
1985 until May 1996, Mr. Lacy served as the Chief Executive Officer and Chairman
of Ingram Micro Inc. and its predecessor company Micro D Inc., a distributor of
microcomputer products. From December 1993 to January 1996, Mr. Lacy served as
President of Ingram Industries, the holding company of Ingram Micro Inc. From
June 1995 to April 1996, he served as the Chief Executive Officer of Ingram
Industries. From October 1996 to October 1997, Mr. Lacy served as President and
Chief Executive Officer of MicroWarehouse, a direct marketer of computer
products. Mr. Lacy serves as a director of Earthlink Network, Inc.
Mr. Miller has served as a Director of the Company since September 1993.
Since January 1995, Mr. Miller has served as President of Miller Associates,
Inc., a management consulting firm. From February 1990 to December 1994, Mr.
Miller served as the Vice Chairman and Chief Executive Officer of Darling
International, a publicly owned food waste recycling company. Mr. Miller serves
on the boards of directors of several private companies. Mr. Miller served as a
director of Sound Advice, Inc. which sought bankruptcy protection under Chapter
11 of the Bankruptcy Code in Fiscal 1998.
The Company currently has six directors. All directors serve on the Board
of Directors of the Company until their successors are elected and qualified.
There are no family relationships among any of the directors or executive
officers of the Company. The Company's executive officers serve at the
discretion of the Board of Directors.
In June 1996, the Board of Directors established an Audit Committee and a
Compensation Committee. The Audit Committee is currently comprised of Messrs.
Devening, Lacy and Miller and is chaired by Mr. Miller. The Audit Committee
oversees the activities of the Company's independent auditors and reviews with
the independent auditors the Company's internal accounting procedures and
controls. The Compensation Committee is currently comprised of Messrs. Devening,
Lacy and Miller and is chaired by Mr. Devening. The Compensation Committee makes
recommendations to the Board of Directors with respect to general compensation
and benefit levels and other related matters, reviews and approves the
compensation and benefits for the Company's executive officers, administers the
Company's stock purchase and stock option plans and makes recommendations to the
Board of Directors regarding such matters.
47
<PAGE> 54
EXECUTIVE COMPENSATION
The following table sets forth information concerning the compensation paid
by the Company during Fiscal 1998 and Fiscal 1997 to the Company's Chief
Executive Officer and each of the Company's five other most highly compensated
executive officers (collectively, the "Named Officers"):
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
---------------
AWARDS
---------------
ANNUAL COMPENSATION SECURITIES ALL OTHER
FISCAL --------------------- UNDERLYING COMPENSATION
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) OPTIONS (#)(1) ($)
--------------------------- ------ --------- -------- --------------- ------------
<S> <C> <C> <C> <C> <C>
John A. McKenna, Jr. .............. 1998 373,461 127,750 30,000 17,533
President and Chief Executive
Officer 1997 350,000 150,171 -- 21,333
Kenneth Ghazey (2)................. 1998 298,462 100,375 -- 12,299
Executive Vice President, Finance 1997 126,923 -- 880,000 5,195
and Administration, and Chief
Financial Officer
Dale H. Allardyce.................. 1998 260,769 107,035 75,000 2,396
Executive Vice President,
Operations 1997 224,423 155,371 -- 5,462
David J. Csira (3)................. 1998 230,000 118,844 -- 52,032(4)
Executive Vice President, Field 1997 222,846 116,877 66,665 4,752
Operations
John F. Lyons...................... 1998 199,520 88,750 25,000 2,933
Senior Vice President, Sales and 1997 174,462 101,516 -- 4,175
Marketing
Richard Nathanson.................. 1998 193,800 117,910 -- 344
Senior Vice President, Services 1997 258,048 193,787(5) 187,395 2,041
</TABLE>
- ---------------
(1) The stock options listed in the table represent options to purchase shares
of Common Stock under the Company's 1996 Performance Incentive Plan ("PIP")
or the Company's 1996 Stock Option Plan (the "EIS Plan") and have been
adjusted for dividends.
(2) Mr. Ghazey was appointed Executive Vice President, Finance and
Administration and Chief Financial Officer in January 1997.
(3) Mr. Csira resigned in May 1998.
(4) Includes $49,232 paid to Mr. Csira pursuant to a Severance and Release
Agreement, including payment for 120 hours of accrued vacation time.
(5) Includes $120,787 bonus payable by FCP at the time of its acquisition and
paid by the Company.
48
<PAGE> 55
OPTION GRANTS IN LAST FISCAL YEAR
The following table sets forth for each of the Named Officers who received
options granted during Fiscal 1998 certain information concerning such grants.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
--------------------------------------------------------
NUMBER PERCENT OF POTENTIAL REALIZABLE VALUE
OF TOTAL OF ASSUMED ANNUAL RATES OF
SECURITIES OPTIONS EXERCISE STOCK PRICE APPRECIATION FOR
UNDERLYING GRANTED TO PRICE OPTION TERM (3)
OPTIONS EMPLOYEES PER EXPIRATION -----------------------------
NAME GRANTED IN FISCAL 1998 SHARE(1) DATE (2) 5% 10%
- ---- ---------- -------------- -------- ---------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
John A. McKenna, Jr............. 30,000(4) 1.52% $6.64 02/09/08 $125,276 $317,473
Dale H. Allardyce............... 75,000(5) 3.79% $6.64 02/09/08 $313,190 $793,684
John F. Lyons................... 25,000(6) 1.26% $4.63 09/10/07 $141,770 $275,669
</TABLE>
- ---------------
(1) In determining the fair market value of the Company's Common Stock, the
Board of Directors considered various factors, including the Company's
financial condition and business prospects, its operating results, the
absence of a market for its Common Stock, the risks normally associated with
investments in companies engaged in similar businesses and the market prices
of securities of certain competitors. The exercise price for options granted
under the PIP may be paid in any form as shall be permitted by the Company's
Compensation Committee of the Board of Directors, including without
limitation cash, shares of the Company's Common Stock, other awards granted
or other property, including promissory notes. The exercise price for
options granted under the EIS Plan may be paid in cash or other property
including promissory notes, shares of the Company's Common Stock, or any
form of "cashless" exercise, including by net exercise, as shall be
permitted by the Company's Compensation Committee of the Board of Directors.
(2) Options may terminate before their expiration dates if the optionee's status
as an employee or consultant is terminated or upon the optionee's death or
disability. Options must generally be exercised within 30 days of the
termination of the optionee's status as an employee or consultant of the
Company, or within 12 months after such optionee's death or disability. If,
however, an optionee is terminated for cause, all vested options shall be
canceled on the date of grant.
(3) The 5% and 10% assumed annual rates of compounded stock price appreciation
are mandated by rules of the Securities and Exchange Commission and do not
represent the Company's estimate or projection of the Company's future
Common Stock prices.
(4) Represents 30,000 shares of the Company's Common Stock subject to a
non-qualified stock option. All options were granted pursuant to the
Company's PIP and vested immediately upon grant.
(5) Represents 45,000 shares of the Company's Common Stock subject to an
incentive stock option and 30,000 shares of the Company's Common Stock
subject to a non-qualified stock option. All options were granted pursuant
to the Company's PIP. One-third of such options vested immediately upon
grant and an additional one-third of such options shall vest after each
anniversary of February 9, 1998.
(6) Represents 25,000 shares of the Company's Common stock subject to an
incentive stock option. All options were granted pursuant to the Company's
PIP. Twenty percent (20%) of such options vested on September 10, 1998, and
an additional twenty percent (20%) of such options shall vest after each
anniversary of September 10, 1998.
49
<PAGE> 56
FISCAL YEAR-END OPTION VALUES
The following table sets forth the value of outstanding options held by the
Named Officers as of June 28, 1998 and has been adjusted for stock dividends.
<TABLE>
<CAPTION>
NUMBER OF SECURITIES UNDERLYING
UNEXERCISED OPTIONS AT FISCAL VALUE OF UNEXERCISED IN-THE-MONEY
YEAR-END (#) OPTIONS AT FISCAL YEAR-END (1)
-------------------------------- ----------------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---- ----------- ------------- ------------ --------------
<S> <C> <C> <C> <C>
John A. McKenna, Jr........... 877,560 847,560 $1,703,596 $1,703,596
Kenneth Ghazey................ 333,330 546,670 $1,533,318 $2,514,682
Dale H. Allardyce............. 25,000 50,000 -- --
David J. Csira................ 71,665 -- $ 316,709 --
John F. Lyons................. 5,000 20,000 $ 10,050 $ 40,200
Richard Nathanson............. 93,697 93,698 $ 431,006 $ 431,011
</TABLE>
- ---------------
(1) Calculated on the basis of the fair market value of the Common Stock at June
28, 1998, $6.64 per share (as determined by the Company's Board of
Directors), less the exercise price payable for such shares, multiplied by
the number of shares underlying the option.
DIRECTOR COMPENSATION
The Company does not pay cash compensation to its directors. However, under
the Company's 1996 Non-Employee Director Stock Plan, each non-employee director
receives an annual retainer and fees for each Board or committee meeting in the
form of shares of the Company's Common Stock. In addition, the Company
reimburses directors for expenses incurred in attending board and committee
meetings. During Fiscal 1998, the Company issued an aggregate 59,126 shares of
the Company's Common Stock to its non-employee directors pursuant to the
Company's 1996 Non-Employee Director Share Plan. During Fiscal 1996 and Fiscal
1997, Mr. Devening and Mr. Lacy were each granted an aggregate of 37,500 options
to purchase shares of the Company's Common Stock in consideration for services
rendered as a director of the Company.
Since inception, the Company has paid Mr. Cameron a salary for services
rendered in his capacity as Chairman of the Board. During Fiscal 1998, his
annual salary was $400,000. On July 1, 1998, the Company entered into an
employment agreement with Mr. Cameron. See "-- Employment Agreements."
EMPLOYMENT AGREEMENTS
The Company has entered into agreements with certain of the Company's
executive officers, including John A. McKenna, Jr., the Company's President and
Chief Executive Officer, Kenneth A. Ghazey, the Company's Executive Vice
President, Finance and Administration, and Chief Financial Officer, Dale H.
Allardyce, the Company's Executive Vice President, Operations, John F. Lyons,
the Company's Senior Vice President, Sales and Marketing, Richard Nathanson, the
Company's Senior Vice President, Services and Dort A. Cameron III, Chairman of
the Board of Directors.
Mr. McKenna's severance agreement provides that upon a Severance Event (as
defined below), he will be entitled to a payment equal to 12 times his monthly
compensation as of the date of termination (including his bonus or any variable
compensation at 100% of target). In addition, if a Severance Event occurs or Mr.
McKenna's employment is terminated prior to a public offering or change of
control (as defined below) and the Company elects to repurchase his shares of
Common Stock pursuant to the Stockholders' Agreement, Mr. McKenna shall be
entitled to receive (i) the difference between the book value as of the end of
the most recent fiscal year and the Share Value (as defined below) and (ii) a
tax gross-up for the difference between ordinary income tax treatment and
capital gains tax treatment resulting from such repurchase, computed to put Mr.
McKenna in the same position he would have been in if he had timely made an
Internal Revenue Code of 1986, as amended, Section 83(b) election. A "Severance
Event" is defined as (i) a termination for any reason other than cause or as a
result of his death, disability or voluntary resignation or (ii) a change of
control which results in a reduction of his base compensation, a reduction in
the level of authority or scope of
50
<PAGE> 57
responsibilities or relocation. The agreement provides for the acceleration of
the vesting period pertaining to stock options granted to him in addition to
extending his exercise period to two years after termination in the event of a
Severance Event. Mr. McKenna's severance agreement terminates on August 6, 2000.
Mr. Ghazey's at-will employment agreement provides for an initial annual
base salary of $275,000 and participation in the ENTEX Management Incentive Plan
at a target bonus of 50% of his base salary for 100% achievement of established
goals. In addition, Mr. Ghazey's employment agreement provides that upon (i) the
termination of his employment by the Company for other than cause or as a result
of death, disability or voluntary resignation, (ii) a change of control (as
defined below) or (iii) a unilateral decrease in his aggregate compensation,
benefits and incentive package which is not uniformly applied to all other
senior executive officers, he will be entitled to one year's base salary at the
then current rate and all incentive compensation earned but not paid and under
the Management Incentive Plan then in effect.
Mr. Allardyce's and Mr. Lyon's agreements are effective until 24 months
following a change of control (as defined below) or until November 30, 1998 if
no change of control has occurred by such date. Mr. Allardyce's and Mr. Lyon's
retention agreements provide that upon a change of control followed by (i) a
termination for other than cause or as a result of his death, disability or
voluntary resignation, (ii) a reduction in his compensation, (iii) a reduction
in the level of authority or scope of responsibilities or (iv) a relocation, he
will be entitled to 12 times his monthly compensation as of the date of
termination (including his bonus at 100% of target).
Mr. Nathanson's employment agreement provides for an initial monthly base
salary of $18,333, participation in the ENTEX Management Incentive Plan at a
target bonus of not less than 50% of his base salary and $1,000 per month for
mortgage expenses. In addition, Mr. Nathanson's employment agreement provides
that upon termination without cause, he will be entitled to severance payments
equal to 12 times his monthly compensation as of the date of termination plus
bonus at 100% of target. Mr. Nathanson is subject to a covenant not to compete
until the later of July 1999 or one year after his employment with the Company
is terminated.
Mr. Cameron's employment agreement is effective until July 1, 2001. Mr.
Cameron's employment agreement provides for an initial annual base salary of
$400,000 and participation in the Company's existing and future long term
incentive plans at a level determined by the Board of Directors. The Company has
agreed to provide hospitalization, medical, dental and health coverage to Mr.
Cameron and his spouse following the termination of Mr. Cameron's employment
agreement for the remainder of their lives or until comparable coverage is
obtained from another employer or until comparable coverage can be obtained at
commercially reasonable rates, up to a maximum actual cost to the Company of
$1.5 million. In addition, Mr. Cameron's employment agreement provides that upon
(i) death, (ii) disability or (iii) termination of his employment by the Company
without cause or termination by Mr. Cameron for Good Reason (as defined below),
he will be entitled to receive the base salary at the then current rate for the
longer of (x) the remainder of the term of the agreement (without regard to the
earlier termination) and (y) one year. Mr. Cameron is subject to a covenant not
to compete until three years following the termination of his employment.
A "change of control" for purposes of Mr. McKenna's agreement is defined as
an event in which Mr. Cameron and entities controlled by Mr. Cameron (the
"Cameron Affiliates") no longer own voting securities of the Company entitled to
cast a majority of votes for election of the Board of Directors of the Company.
A "change of control" for purposes of Mr. Allardyce's, Mr. Lyon's and Mr.
Ghazey's agreements is defined as a transfer of ownership or control of more
than 50% of all of the assets or shares of the Company. For purposes of Mr.
Cameron's employment agreement, for "Good Reason" means a termination of Mr.
Cameron's employment agreement by Mr. Cameron following a reduction in his
annual base salary, a material alteration in his authorities or
responsibilities, the failure to elect or continue Mr. Cameron as Chairman of
the Board of Directors, the failure to maintain directors and officers liability
insurance covering Mr. Cameron or a material breach of the agreement by the
Company.
51
<PAGE> 58
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Share Ownership
As of July 29, 1998, Dort A. Cameron III, the Company's Chairman, owned of
record 2,669,653 shares of the Company's Common Stock. In addition, as of such
date, ENTEX Associates, L.P., a Delaware limited partnership ("ENTEX
Associates"), owned 21,407,739 shares of the Company's Common Stock. Mr. Cameron
is the sole stockholder of The Putnam Group, Inc., the general partner of ENTEX
Associates, L.P. (the "Putnam Group"). Two of the limited partners of ENTEX
Associates, L.P., Airlie Associates and Airlie Associates II, are general
partnerships consisting of Mr. Cameron's relatives. The other limited partners
of ENTEX Associates, L.P. are business associates of Mr. Cameron. Mr. Cameron
has voting and dispositive power over the shares of the Company's Common Stock
held by ENTEX Associates and, accordingly, may be deemed to have beneficial
ownership with respect to these shares. In connection with the restructuring of
indebtedness under the IBMCC Financing Agreement in December 1996, Mr. Cameron
and ENTEX Associates, along with Mr. McKenna, have pledged the Common Stock held
by each to IBMCC as additional collateral. See "-- IBMCC Financing." The pledges
of Mr. Cameron, ENTEX Associates and Mr. McKenna were released in 1998 in
connection with the Old Notes Offering.
Indebtedness Between the Company and Certain Affiliates
In July 1993, Mr. Cameron, Airlie Associates and Airlie Associates II
loaned $3.13 million, $340,000 and $780,000, respectively, to ENTEX Holdings. In
addition, in December 1993 Mr. Cameron loaned ENTEX Holdings $312,500. These
loans are evidenced by promissory notes (the "1993 Notes"). The 1993 Notes have
been assumed by the Company and $415,925 principal amount repaid in connection
with the merger of ENTEX Holdings with and into the Company on June 28, 1996
(the "Holdings Merger"). The remaining balance on the 1993 Notes, approximately
$4.1 million, was repaid with the proceeds of the Old Notes Offering. On August
6, 1993, the Company borrowed $5.3 million from Citibank N.A. to partially
finance the acquisition of JWPIS. Mr. Cameron personally guaranteed the
repayment of this loan. In connection with the Holdings Merger, the outstanding
balance of this loan, approximately $4.1 million, was repaid.
Payments to Affiliates
From December 1993 to December 1995, ENTEX Holdings paid to the Putnam
Group a monthly overhead allocation fee of $15,000 for a total of $360,000. Such
monthly fee was paid by ENTEX Holdings to Airlie Enterprises from January 1996
to June 1996, and by the Company to Airlie Enterprises from July 1996 to the
present. In addition, in October 1995, ENTEX Holdings paid a consulting fee to
Airlie Enterprises in the amount of $500,000.
Transfer of Entex Holdings Investments; Assets
During fiscal years 1994, 1995 and 1996, ENTEX Holdings invested $335,000
in National Teacher Academy, Inc. in exchange for promissory notes and shares
representing 51% of the outstanding capital stock of National Teacher Academy,
Inc. In connection with the Holdings Merger, ENTEX Holdings transferred to Mr.
Cameron the promissory notes and stock of National Teacher Academy, Inc. in
exchange for a $335,000 reduction in the amounts outstanding under the 1993
Notes. In July 1994, ENTEX Holdings invested $50,000 in Russian Investors, L.P.
in exchange for shares representing approximately 10% of the profit of Russian
Investors, L.P. In connection with the Holdings Merger, ENTEX Holdings
transferred to Mr. Cameron the partnership interest of Russian Investors, L.P.
in exchange for a $50,000 reduction in the amounts outstanding under the 1993
Notes. In June 1995, ENTEX Holdings loaned a consultant to the Company $30,925.
In connection with the Holdings Merger, Mr. Cameron acquired the loan in
exchange for a $30,925 reduction in Mr. Cameron's 1993 Notes. In April 1996, the
Company sold to Knowledge Alliance Holdings, Inc. ("KAH"), a corporation
controlled by the Cameron Affiliates, the PC training business which the Company
had previously acquired in connection with the merger of Random Access. The book
value of such business was $1.1 million at the time of the transfer to KAH. In
consideration for this transfer, the Company received shares of KAH representing
25% of its then outstanding capital stock. The Company also entered into an
52
<PAGE> 59
agreement with KAH to market these training services. The agreement granted the
Company an option to purchase up to an additional 2,500 shares of common stock
of KAH depending on the level of sales of such training services by the Company.
KAH was granted the option to purchase the assets of the training business
conducted by the Company in Minneapolis, Minnesota for book value of such assets
on the date of acquisition. This option was exercised on August 1, 1996. For
Fiscal 1999, the Company has outsourced substantially all of its training
activities to KAH. Mr. McKenna is serving as a Director of KAH.
Stockholders' Agreement
On December 10, 1993, ENTEX Holdings, Dort A. Cameron III, ENTEX
Associates, L.P. and the Participants entered into the Stockholders' Agreement
in connection with the sale and purchase of a total of 5,860,690 shares, net of
repurchases, of the Common Stock (the "Original Shares") of ENTEX Holdings by
the Participants. The Stockholders' Agreement is binding on the Company as the
successor corporation of ENTEX Holdings and all obligations of the Participants
and the Cameron Affiliates relating to the shares of Common Stock of ENTEX
Holdings relate to the shares of Common Stock of the Company. Pursuant to the
Stockholders' Agreement, each of the Cameron Affiliates and each of the
Participants agreed to vote their shares of Common Stock to elect one
Participant nominated by the Participants and acceptable to the Cameron
Affiliates to the Board of Directors of the Company. In addition, in the event
of (i) any proposed capital reorganization of the Company, (ii) any
reclassification or recapitalization of the Company, (iii) any transfer of all
or substantially all of the assets of the Company, (iv) any consolidation or
merger involving the Company and any other person, (v) any dissolution,
liquidation or winding-up of the Company, or (vi) any material transaction
affecting the capital stock of the Company which is not in the ordinary course
of business and which is required by the laws of Delaware to be submitted to a
vote of the stockholders of the Company, the Participants agreed to vote their
shares of Common Stock in the same manner as the Cameron Affiliates.
In addition, pursuant to the Stockholders' Agreement, in the event that
certain Participants die or become disabled (the "Non-Electing Participants"),
the Company will have the right to purchase all of the shares of Common Stock of
such Participants. Upon death or disability, the Non-Electing Participants and
their legal representatives will have the right to require the Company to
purchase all of their shares of Common Stock. The per share price to be paid by
the Company shall equal the greater of the Original Purchase Price (as defined
below) or the Share Value (as defined below). As of July 29, 1998, the Non-
Electing Participants total six individuals who collectively own 759,336 shares
of Common Stock. The Company has obtained an insurance policy that would cover
the purchase price of such shares in the event of the exercise of such put
options. The Company will have the right to purchase shares of Common Stock if
other Participants, including John McKenna and David Csira ("Plan 2
Participants"), are terminated for any reason. If a Plan 2 Participant's
employment is terminated for cause, the per share value shall equal the lesser
of Original Purchase Price and the Book Value (as defined below) and if for any
other reason, shall equal the Book Value. If the Company is not able to pay for
a Participant's shares of Common Stock in cash, the Company must assign its
rights to the Cameron Affiliates. The Company waived its right to purchase the
shares of Common Stock held by Mr. Csira following the termination of his
employment with the Company.
"Share Value" shall mean the amount determined by multiplying (a) the net
income of the Company on a consolidated basis for the four most recent fiscal
quarters of the Company immediately preceding the date of the termination of the
Plan 1 Participant's employment, as shown on the financial statements of the
Company, determined in accordance with GAAP, by (b) the Earnings Multiple, and
dividing the product so obtained by the number of shares of Common Stock issued
and outstanding on a fully diluted basis. "Earnings Multiple" shall mean the
arithmetic average of the "price to earnings ratio" of each of certain publicly
traded companies as reported in composite transactions in the Wall Street
Journal on the last day of each of the six calendar months immediately preceding
the date of repurchase of such Common Stock. "Original Purchase Price" shall
mean the original purchase price paid for the Original Shares, as adjusted for
stock dividends. "Book Value" shall mean the book value of a share of Common
Stock as of the end of the most recent fiscal year.
The Stockholders' Agreement will terminate upon the consummation of a
public offering; provided, that the voting provisions shall terminate upon the
earlier of (a) the consummation of a public offering or (b) December 10, 2000,
and provided, further, that certain provisions relating to the Company's right
to
53
<PAGE> 60
repurchase a Participant's shares of Common Stock shall terminate upon the
earlier of (x) the consummation of a public offering or (y) a change of control.
A "change of control" is defined as an event in which the Cameron Affiliates no
longer own voting securities of the Company entitled to cast a majority of votes
for election of the Board of Directors of the Company.
IBMCC Financing
The Company has financed a significant portion of its working capital needs
under the IBMCC Financing Agreement. IBMCC is the beneficial owner of more than
5% of the outstanding capital stock of the Company. The IBMCC Financing
Agreement provides for borrowings under the IBMCC Working Capital Line of Credit
of up to $525.0 million, of which $89.7 million was owed to IBMCC on a
non-interest bearing basis and was classified as accounts payable on the
Company's consolidated balance sheet and $216.4 million was owed to IBMCC on an
interest bearing basis and was classified as notes payable, in each case after
giving pro forma effect to the Old Notes Offering and the use of the proceeds
therefrom. The amount of available borrowings under the IBMCC Financing
Agreement may be adjusted upwards for higher seasonal purchasing requirements,
and may be reduced or terminated by IBMCC upon 60 days, prior written notice.
The IBMCC Working Capital Line of Credit is subject to annual renewal. Amounts
outstanding under the IBMCC Working Capital Line of Credit bear interest at
LIBOR plus 2.10% (7.75% at July 29, 1998). Such rate is subject to increase or
decrease depending on the Company's financial performance. The IBMCC Working
Capital Line of Credit is secured by certain inventory, accounts receivable and
certain intellectual property. In connection with the Company's acquisition of
Random Access in September 1995, the IBMCC Financing Agreement was amended to
provide for the IBMCC Long-Term Loan in the original principal amount of $20
million. The IBMCC Long-Term Loan is required to remain outstanding unless there
are no outstanding interest bearing advances under the IBMCC Financing
Agreement. The IBMCC Financing Agreement was further amended in December 1996
and July 1997 to provide for the Short-Term Loan in the original principal
amount of $55 million and the Special Working Capital Advance in the original
principal amount of $20 million. The December 1996 and 1997 amendments also
included favorable revisions to the financial covenant requirements and the
payment schedule for the Company, including agreements to waive all financial
covenant defaults pertaining to Fiscal 1997. The Short-Term Loan has been repaid
in full. In addition, the IBMCC Long-Term Loan and the Special Working Capital
Advance were repaid in full subsequent to June 28, 1998. The IBMCC Financing
Agreement provides that if Dort A. Cameron III ceases to own and/or control at
least 35% of the issued and outstanding capital stock of the Company, the
Company will be deemed to be in default. In connection with the financing
arrangement, Mr. Cameron has granted to IBMCC an option to acquire 1,851,850
shares of Common Stock held by him. The option is immediately exercisable at a
price of $.02 per share and expires July 15, 2001. IBMCC holds a warrant to
purchase up to 333,350 shares of the Company's Common Stock which was committed
to by ENTEX Holdings in August 1993 and issued in November 1994 in connection
with a settlement of a dispute between International Business Machines
Corporation, JWPIS and ENTEX Holdings. In connection with the restructuring of
indebtedness under the IBMCC Financing Agreement in December 1996, Mr. Cameron,
Mr. McKenna and ENTEX Associates, L.P. have pledged the Common Stock held by
each to IBMCC as additional collateral. The pledges of Mr. Cameron, ENTEX
Associates and Mr. McKenna were released in connection with the Old Notes
Offering. In connection with an amendment to the IBMCC Financing Agreement on
July 15, 1997 the Company entered into a warrant agreement pursuant to which
IBMCC was issued warrants to acquire up to 250,855 shares of Common Stock. All
warrants issued to IBMCC under the warrant agreement may be exercised at any
time prior to July 31, 2004 at an exercise price of $7.55. In addition, under
the warrant agreement, IBMCC was granted the right to sell the Common Stock
issuable upon exercise of the warrants (the "Warrant Shares") along with any
sale of Common Stock representing more than 20% of the capital stock of the
Company held by the Cameron Affiliates. Mr. Cameron has a right to require IBMCC
to sell the Warrant Shares along with any sale of Common Stock representing 50%
or more of the capital stock of the Company by the Cameron Affiliates. IBMCC was
also granted certain demand and piggyback registration rights for the Warrant
Shares. See "Business -- Business Factors", "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources" and Note 7 of the notes to the Company's consolidated
financial statements.
54
<PAGE> 61
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of the Common Stock as of July 29, 1998 for (i) each person
or entity who is known by the Company to beneficially own two percent or more of
the outstanding Common Stock, (ii) each of the Company's directors, (iii) each
of the Named Officers, and (iv) all directors and executive officers of the
Company as a group and has been adjusted for stock dividends:
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
OWNED(1)
---------------------
NAME OF GROUP OR BENEFICIAL OWNERS NUMBER PERCENT
- ---------------------------------- ---------- -------
<S> <C> <C>
Dort A. Cameron III(2)...................................... 24,227,392 74.4%
c/o Entex Information Services, Inc.
Six International Drive
Rye Brook, NY 10573
IBM Credit Corporation(3)................................... 2,436,055 7.0
1133 Westchester Avenue
White Plains, NY 10604
John A. McKenna, Jr.(9)(5).................................. 1,519,764 4.6
Kenneth Ghazey(6)........................................... 333,330 1.0
Dale H. Allardyce(7)........................................ 313,999 1.0
David J. Csira(5)(6)(9)..................................... 264,330 *
John F. Lyons(10)........................................... 125,417 *
Richard Nathanson(11)....................................... 93,697 *
R. Randolph Devening(12).................................... 44,709 *
Linwood A. (Chip) Lacy, Jr.(13)............................. 45,010 *
Frank W. Miller............................................. 19,907 *
All directors and executive officers as a group (16
persons)(14).............................................. 27,279,387 80.1%
========== ====
</TABLE>
- ---------------
* Less than 1%
(1) Beneficial ownership is determined in accordance with the rules of the
Commission. In computing the number of shares beneficially owned by a person
and the percentage ownership of that person, shares of Common Stock subject
to options held by that person that are currently exercisable or exercisable
within 60 days of July 29, 1998, are deemed outstanding. Such shares,
however, are not deemed outstanding for the purposes of computing the
percentage ownership of each other person. Except as indicated in the
footnotes to this table, pursuant to the Stockholders' Agreement and
pursuant to applicable community property laws, each stockholder named in
the table has sole voting and investment power with respect to the shares
set forth opposite such stockholder's name. See "Risk Factors -- Control by
Principal Stockholders."
(2) Includes 21,407,739 shares of Common Stock registered in the name of ENTEX
Associates L.P. Dort A. Cameron III is the sole stockholder of the Putnam
Group, Inc., the general partner of ENTEX Associates L.P. Includes 150,000
shares of Common Stock owned by Mr. Cameron which are subject to an option
exercisable within 60 days of July 29, 1998. Includes 1,851,850 shares of
Common Stock owned by Mr. Cameron which are subject to an immediately
exercisable option to purchase such shares which Mr. Cameron granted to
IBMCC.
(3) Includes 1,851,850 shares of Common Stock owned by Mr. Cameron which are
subject to an option immediately exercisable by IBMCC to purchase such
shares and 584,205 shares of Common Stock subject to an immediately
exercisable warrant.
(4) Includes 877,560 shares of Common Stock owned by Mr. McKenna which are
subject to an option exercisable within 60 days of July 29, 1998. Excludes
unvested options to purchase 847,560 shares of Common Stock.
55
<PAGE> 62
(5) Pursuant to the Stockholders' Agreement, in the event that Mr. McKenna's or
Mr. Csira's employment is terminated for any reason, the Company has the
right to purchase all shares of Common Stock owned by him. If the Company is
unable to purchase such shares in cash, Mr. Cameron or his affiliates will
have a right to purchase such shares. The Company waived its right to
purchase the shares of Common Stock held by Mr. Csira following the
termination of his employment with the Company. See "Risk Factors -- Control
by Principal Stockholders."
(6) Includes 333,336 shares of Common Stock owned by Mr. Ghazey which are
subject to an option exercisable within 60 days of July 29, 1998.
(7) Includes 25,000 shares of Common Stock owned by Allardyce which are subject
to an option exercisable within 60 days of July 29, 1998.
(8) Includes 71,665 shares of Common Stock owned by Mr. Csira which are subject
to an option exercisable within 60 days of July 29, 1998.
(9) Mr. Csira resigned in May 1998.
(10) Includes 5,000 shares of Common Stock currently owned by Mr. Lyons which
are subject to an option exercisable within 60 days of July 29, 1998.
(11) Includes 93,697 shares of Common Stock currently owned by Mr. Nathanson
which are subject to an option exercisable within 60 days of July 29, 1998.
(12) Includes 25,000 shares of Common Stock owned by Mr. Devening which are
subject to an option exercisable within 60 days of July 29, 1998.
(13) Includes 25,000 shares of Common Stock owned by Mr. Lacy which are subject
to an option exercisable within 60 days of July 29, 1998.
(14) Includes 1,657,752 shares of Common Stock which are subject to options
exercisable within 60 days of July 29, 1998.
56
<PAGE> 63
DESCRIPTION OF OTHER INDEBTEDNESS
Set forth below is a brief description of certain indebtedness that will
remain outstanding upon the completion of the Offering.
IBM CREDIT CORPORATION
The Company is a borrower under the IBMCC Financing Agreement which
provides for the IBMCC Working Capital Line of Credit of up to $525.0 million,
of which the interest bearing portion was $216.4 million and the non-interest
bearing portion was $89.7 million, in each case after giving pro forma effect to
the Old Notes Offering and the use of the proceeds therefrom. The amount of the
interest bearing portion available borrowings under this line of credit may be
adjusted upwards for higher seasonal purchasing requirements, and may be reduced
or terminated by IBMCC upon 60 days prior written notice. Approximately
$63.9 million of the net proceeds from the Old Notes Offering was used to repay
amounts outstanding under the IBMCC Working Capital Line of Credit.
IBMCC has been the Company's principal working capital lender since the
Company's formation in August 1993. The IBMCC Working Capital Line of Credit has
been renewed annually since that time. Subject to consummation of the Old Notes
Offering and the payment of a significant portion of the net proceeds therefrom
to IBMCC, IBMCC has agreed to extend the maturity of the IBMCC Working Capital
Line of Credit from September 15, 1998 to July 1, 2001 and to lower the annual
interest rate payable thereunder from the prime rate plus 0.50% to LIBOR plus
2.10%. Such rate is subject to increase or decrease depending on the Company's
financial performance.
The IBMCC Financing Agreement provides that if Dort A. Cameron III ceases
to own and/or control at least 35% of the issued and outstanding capital stock
of the Company, the Company will be deemed to be in default under the IBMCC
Financing Agreement. The IBMCC Working Capital Line of Credit contains a number
of significant covenants that, among other things, restrict the ability of the
Company to (i) declare dividends or redeem or repurchase capital stock, (ii)
prepay, redeem or purchase debt, including the Notes, (iii) incur liens and
engage in sale-leaseback transactions, (iv) make loans and investments, (v)
incur additional indebtedness, (vi) amend or otherwise alter debt and other
material agreements, (vii) make capital expenditures, (viii) engage in mergers,
acquisitions and asset sales, (ix) enter into transactions with affiliates and
(x) alter the business it conducts. The indebtedness outstanding under the IBMCC
Working Capital Line of Credit is guaranteed by three of the Company's domestic
subsidiaries and is secured by a first priority lien on the inventory and
accounts receivable (excluding inventory pledged to FINOVA and inventory subject
to a purchase money security interest in favor of HP in which IBMCC has a second
priority lien) and certain intellectual property of the Company and such
guarantor subsidiaries. Mr. Cameron, ENTEX Associates and John A. McKenna, Jr.,
the Company's President and Chief Executive Officer, pledged the shares of
Common Stock held by each of them as additional collateral. Recently, IBMCC has
agreed, subject to the consummation of the Old Notes Offering, to release such
shares from the pledge; provided that, other than shares being sold by Mr.
Cameron, ENTEX Associates and Mr. McKenna to an affiliate of CIBC Oppenheimer
Corp. concurrently with the consummation of the Offering, such shares are
subject to being repledged to IBMCC in the event that on or prior to December
31, 1998 the Company fails to comply with certain financial covenants. In
addition, under the IBMCC Working Capital Line of Credit, giving effect to the
amendment thereof upon consummation of the Old Notes Offering, the Company is
also required to comply with financial covenants with respect to (i) ratio of
current assets to current liabilities, (ii) ratio of total liabilities minus
aggregate outstanding principal amount of subordinated debt to tangible net
worth, (iii) ratio of EBITDA for the immediately preceding four fiscal quarters
to interest expense for such period, (iv) minimum consolidated net income for
each fiscal year and (v) minimum working capital.
The IBMCC Financing Agreement contains customary representations and
warranties as well as conditions precedent to advances, including the lack of
any defaults and the continued accuracy of the Company's representations and
warranties. Events of default under the IBMCC Financing Agreement include those
usual and customary for agreements of this type including, among other things,
default in the payment of principal and interest, material breaches of
representations and warranties, certain events of bankruptcy or insolvency, and
failure to comply with covenants and other obligations in the agreement. Upon
the occurrence
57
<PAGE> 64
and continuance of an event of default, IBMCC can terminate the IBMCC Financing
Agreement and declare the outstanding advances due and payable.
FINOVA CAPITAL CORPORATION
The Company currently has $110 million available for borrowing under the
FINOVA Inventory Line of Credit which is secured primarily by the Company's
inventory financed by FINOVA. Amounts outstanding under this line of credit bear
interest only in the event that payments extend beyond the terms for the
inventory which is financed. During Fiscal 1998, the Company paid no interest
for borrowings under this line of credit. At June 28, 1998, $86.4 million was
outstanding under the FINOVA Inventory Line of Credit, all of which was
non-interest bearing and was classified as accounts payable on the Company's
consolidated balance sheet.
OTHER INDEBTEDNESS
In addition, as of June 28, 1998, the Company had other outstanding
long-term indebtedness consisting primarily of (a) $6.9 million owed to
Microsoft Corporation with self-amortizing principal payments through June 21,
2002, with interest payments at 4% per annum in each of the first two annual
payments and 6% per annum thereafter, (b) $4.4 million of a self-amortizing
mortgage loan for the Erlanger, Kentucky integration center which bears interest
at 8.75% and is due February 2007 and (c) the Junior Subordinated Debentures
discounted to yield 20% including cash interest payments at a rate of 5.5% per
annum that will accrete to their face value of $43.1 million by their due date
of March 1, 2007.
58
<PAGE> 65
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF EXCHANGE OFFER
The Old Notes were sold by the Company on July 29, 1998 to the Initial
Purchasers, who placed the Old Notes with certain institutional investors. In
connection therewith, the Company and the Initial Purchasers entered into the
Registration Rights Agreement, pursuant to which the Company agreed, for the
benefit of the holders of the Old Notes, that the Company would, at its sole
cost, (i) within 120 days following the original issuance of the Old Notes, file
with the Commission the Exchange Offer Registration Statement (of which this
Prospectus is a part) under the Securities Act with respect to an issue of a
series of new notes of the Company identical in all material respects to the
series of Old Notes and (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective under the Securities Act within 180
days following the original issuance of the Old Notes. Upon the effectiveness of
the Exchange Offer Registration Statement (of which this Prospectus is a part),
the Company will offer to the holders of the Old Notes the opportunity to
exchange their Old Notes for a like principal amount of New Notes, to be issued
without a restrictive legend and which may be reoffered and resold by the holder
without restrictions or limitations under the Securities Act. The term "holder"
with respect to any Note means any person in whose name such Note is registered
on the books of the Company or any other person who has obtained a properly
completed bond power from the registered holder.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the accompanying Letter of Transmittal (which together constitute the
Exchange Offer), the Company will accept for exchange Old Notes that are
properly tendered on or prior to the Expiration Date and not withdrawn as
permitted below. As used herein, the term "Expiration Date" means 5:00 p.m., New
York City time, on , 1998; provided, however, that if the
Company, in its sole discretion, has extended the period of time during which
the Exchange Offer is open, the term "Expiration Date" means the latest time and
date to which the Exchange Offer is extended.
As of the date of this Prospectus, $100,000,000 aggregate principal amount
of Old Notes is outstanding. This Prospectus, together with the Letter of
Transmittal, is first being sent on or about , 1998, to all
holders of Old Notes known to the Company. The Company's obligation to accept
Old Notes for exchange pursuant to the Exchange Offer is subject to certain
customary conditions as set forth below under "-- Certain Conditions to the
Exchange Offer."
The Company expressly reserves the right, at any time and from time to
time, to extend the period of time during which the Exchange Offer is open, and
thereby to delay acceptance for exchange of any Old Notes, by giving oral or
written notice of such extension to the holders of the Old Notes as described
below. During any such extension, all Old Notes previously tendered will remain
subject to the Exchange Offer and may be accepted for exchange by the Company.
Any Old Notes not accepted for exchange for any reason will be returned without
expense to the tendering holders thereof as promptly as practicable after the
expiration or termination of the Exchange Offer.
Old Notes tendered in the Exchange Offer must be in denominations of $1,000
or any integral multiple thereof.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions to the Exchange Offer
specified below under "-- Certain Conditions to the Exchange Offer." The Company
will give oral or written notice of any extension, amendment, non-acceptance or
termination to the holders of the Old Notes as promptly as practicable, such
notice in the case of any extension to be issued by means of a press release or
other public announcement no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
59
<PAGE> 66
PROCEDURES FOR TENDERING OLD NOTES
Only a registered holder of Old Notes may tender such Old Notes in the
Exchange Offer. The tender to the Company of Old Notes by a holder thereof as
set forth below and the acceptance thereof by the Company will constitute a
binding agreement between the tendering holder and the Company upon the terms
and subject to the conditions set forth in this Prospectus and in the
accompanying Letter of Transmittal. Except as set forth below, a holder who
wishes to tender Old Notes for exchange pursuant to the Exchange Offer must
transmit a properly completed and duly executed Letter of Transmittal, including
all other documents required by such Letter of Transmittal, to Marine Midland
Bank (the "Exchange Agent") at one of the addresses set forth below under
"Exchange Agent" on or prior to the Expiration Date. In addition, either (i)
certificates for such Old Notes must be received by the Exchange Agent along
with the Letter of Transmittal, (ii) a timely confirmation of a book-entry
transfer (a "Book-Entry Confirmation") of such Old Notes, if such procedure is
available, into the Exchange Agent's account at The Depository Trust Company
(the "Book-Entry Transfer Facility") pursuant to the procedure for book-entry
transfer described below must be received by the Exchange Agent prior to the
Expiration Date or (iii) the holder must comply with the guaranteed delivery
procedures described below.
THE METHOD OF DELIVERY OF OLD NOTES, LETTERS OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDERS. IF SUCH DELIVERY
IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL, PROPERLY INSURED, WITH
RETURN RECEIPT REQUESTED, BE USED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE TIMELY DELIVERY. NO LETTERS OF TRANSMITTAL OR OLD NOTES SHOULD
BE SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner of Old Notes whose Old Notes are registered in the
name of a broker, dealer, commercial bank, trust company, or other nominee and
who wishes to tender such Old Notes in the Exchange Offer should contact the
registered holder promptly and instruct such registered holder to tender on such
beneficial owner's behalf. If such beneficial owner wishes to tender on its own
behalf, such owner must, prior to completing and executing the Letter of
Transmittal and delivering such beneficial owner's Old Notes, either make
appropriate arrangements to register ownership of such Old Notes in such
beneficial owner's name or obtain a properly completed bond power from the
registered holder. The transfer of registered ownership may take considerable
time.
Signatures on a Letter of Transmittal or a notice of withdrawal described
below (see "-- Withdrawal of Tenders"), as the case may be, must be guaranteed
(see "-- Guaranteed Delivery Procedures") unless the Old Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder of the Old
Notes who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" on the Letter of Transmittal or (ii) for the
account of an Eligible Institution (as defined below). In the event that
signatures on a Letter of Transmittal or a notice of withdrawal, as the case may
be, are required to be guaranteed, such guaranties must be by a financial
institution (including most banks, savings and loan associations and brokerage
houses) that is a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Program or the Stock Exchanges
Medallion Program (collectively, "Eligible Institutions"). If Old Notes are
registered in the name of a person other than a signer of the Letter of
Transmittal, the Old Notes surrendered for exchange must be endorsed by or be
accompanied by a written instrument or instruments of transfer or exchange in
satisfactory form as determined by the Company in its sole discretion, duly
executed by the registered holder exactly as the name or names of the registered
holder or holders appear on the Old Notes with the signature thereon guaranteed
by an Eligible Institution.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Old Notes tendered for exchange will be determined by
the Company in its sole discretion, which determination shall be final and
binding. The Company reserves the absolute right to reject any and all tenders
of any particular Old Notes not properly tendered or not to accept any
particular Old Notes not properly tendered or the acceptance of which might, in
the judgment of the Company or its counsel, be unlawful. The Company also
reserves the
60
<PAGE> 67
absolute right to waive any defects or irregularities or conditions of the
Exchange Offer as to any particular Old Notes either before or after the
Expiration Date (including the right to waive the ineligibility of any holder
who seeks to tender Old Notes in the Exchange Offer). The interpretation by the
Company of the terms and conditions of the Exchange Offer as to any particular
Old Notes either before or after the Expiration Date (including the Letter of
Transmittal and the instructions thereto) shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Old Notes for exchange must be cured within such reasonable period of time as
the Company shall determine. None of the Company, the Exchange Agent or any
other person shall be under any duty to give notification of any defect or
irregularity with respect to any tender of Old Notes for exchange, nor shall any
of them incur any liability for failure to give such notification.
If the Letter of Transmittal or any Old Notes or powers of attorney are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such person should so indicate when signing, and, unless waived by the
Company, proper evidence satisfactory to the Company of their authority to so
act must be submitted with the Letter of Transmittal.
By tendering Old Notes for exchange, each holder will represent to the
Company that, among other things, the New Notes acquired pursuant to the
Exchange Offer are being acquired in the ordinary course of business of the
person receiving such New Notes, whether or not such person is the holder, and
that neither the holder nor such other person has any arrangement or
understanding with any person to engage or participate in a distribution of the
New Notes. If any holder or any such other person is an "affiliate," as defined
under Rule 405 of the Securities Act, of the Company or is engaged in or intends
to engage in, or has an arrangement or understanding with any person to
participate in, a distribution of such New Notes to be acquired pursuant to the
Exchange Offer, such holder or any such other person (i) may not rely on the
applicable interpretation of the staff of the Commission and (ii) must comply
with the registration and prospectus delivery requirements of the Securities Act
in connection with any resale transaction. Each broker-dealer that receives New
Notes for its own account in exchange for Old Notes, where such Old Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. See "Plan of Distribution." The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
the Company will accept, promptly after the Expiration Date, all Old Notes
properly tendered and will issue the New Notes promptly after acceptance of the
Old Notes. See "-- Certain Conditions to the Exchange Offer" below. For purposes
of the Exchange Offer, the Company will be deemed to have accepted properly
tendered Old Notes for exchange when, as and if the Company has given oral or
written notice thereof to the Exchange Agent.
For each Old Note accepted for exchange, the holder of such Old Note will
receive a New Note having a principal amount equal to that of the surrendered
Old Note. Accordingly, registered holders of New Notes on the relevant record
date for the first interest payment date following the consummation of the
Exchange Offer will receive interest accruing from the most recent date to which
interest has been paid on the Old Notes or, if no interest has been paid, from
July 29, 1998. Old Notes accepted for exchange will cease to accrue interest
from and after the date of consummation of the Exchange Offer. Holders whose Old
Notes are accepted for exchange will not receive any payment in respect of
accrued interest on such Old Notes otherwise payable on any interest payment
date for which the record date occurs on or after consummation of the Exchange
Offer. Old Notes not tendered or not accepted for exchange will continue to
accrue interest from and after the date of consummation of the Exchange Offer.
In all cases, issuance of New Notes for Old Notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of certificates for such Old Notes or a timely Book-Entry
Confirmation of such Old Notes into the Exchange Agent's account at the
Book-Entry Transfer Facility, a properly completed and duly executed Letter of
Transmittal and all other
61
<PAGE> 68
required documents. If any tendered Old Notes are not accepted for any reason
set forth in the terms and conditions of the Exchange Offer or if Old Notes are
submitted for a greater principal amount than the holder desires to exchange,
such unaccepted or non-exchanged Old Notes will be returned without expense to
the tendering holder thereof (or, in the case of Old Notes tendered by
book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer
Facility pursuant to the book-entry procedures described below, such
non-exchanged Old Notes will be credited to an account maintained with such
Book-Entry Transfer Facility) as promptly as practicable after the expiration or
termination of the Exchange Offer.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Old Notes at the Book-Entry Transfer Facility for purposes of the
Exchange Offer within two business days after the date of this Prospectus, and
any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into the Exchange
Agent's account at the Book-Entry Transfer Facility in accordance with such
Book-Entry Transfer Facility's procedures for transfer. However, although
delivery of Old Notes may be effected through book-entry transfer at the
Book-Entry Transfer Facility, the Letter of Transmittal or a facsimile thereof,
with any required signature guarantees and any other required documents, must in
any case, be transmitted to and received by the Exchange Agent at the addresses
set forth below under "-- Exchange Agent" on or prior to the Expiration Date or
the guaranteed delivery procedures described below must be complied with.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of the Old Notes desires to tender such Old Notes
and the Old Notes are not immediately available, or time will not permit such
holder's Old Notes or other required documents to reach the Exchange Agent
before the Expiration Date, or the procedure for book-entry transfer cannot be
completed on a timely basis, a tender may be effected if (i) the tender is made
through an Eligible Institution, (ii) on or prior to 5:00 P.M., New York City
time, on the Expiration Date, the Exchange Agent receives from such Eligible
Institution a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof) and Notice of Guaranteed Delivery, substantially in the form
provided by the Company (by telegram, telex, facsimile transmission, mail or
hand delivery), setting forth the name and address of the holder of the Old
Notes and the amount of Old Notes tendered, stating that the tender is being
made thereby and guaranteed that within three New York Stock Exchange ("NYSE")
trading days after the date of execution of the Notice of Guaranteed Delivery,
the certificates for all physically tendered Old Notes, in proper form for
transfer, or a Book-Entry Confirmation, as the case may be, and any other
documents required by the Letter of Transmittal will be deposited by the
Eligible Institution with the Exchange Agent and (iii) the certificates for all
physically tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, and any other documents required by the Letter
of Transmittal will be deposited by the Eligible Institution within three NYSE
trading days after the date of execution of the Notice of Guaranteed Delivery.
WITHDRAWAL OF TENDERS
Tenders of Old Notes may be withdrawn at any time prior to 5:00 P.M., New
York City time, on the Expiration Date. For a withdrawal to be effective, a
written notice of withdrawal must be received by the Exchange Agent at one of
the addresses set forth below under "-- Exchange Agent." Any such notice of
withdrawal must specify the name of the person having tendered the Old Notes to
be withdrawn, identify the Old Notes to be withdrawn (including the principal
amount of such Old Notes), and (where certificates for Old Notes have been
transmitted) specify the name in which such Old Notes are registered, if
different from that of the withdrawing holder. If certificates for Old Notes
have been delivered or otherwise identified to the Exchange Agent, then prior to
the release of such certificates the withdrawing holder must also submit the
serial numbers of the particular certificates to be withdrawn and a signed
notice of withdrawal with signatures guaranteed by an Eligible Institution
unless such holder is an Eligible Institution in which case such guarantee will
not be required. If Old Notes have been tendered pursuant to the procedure for
book-entry transfer described above, any notice of withdrawal must specify the
name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Old Notes and otherwise comply with the
62
<PAGE> 69
procedures of such facility. All questions as to the validity, form and
eligibility (including time of receipt) of such notices will be determined by
the Company, whose determination will be final and binding on all parties. Any
Old Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures
described above, such Old Notes will be credited to an account maintained with
such Book-Entry Transfer Facility for the Old Notes) as soon as practicable
after withdrawal, rejection of tender or termination of the Exchange Offer.
Properly withdrawn Old Notes may be retendered by following one of the
procedures described under "-- Procedures for Tendering Old Notes" above at any
time on or prior to the Expiration Date.
CERTAIN CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, and subject to
its obligations pursuant to the Registration Rights Agreement, the Company shall
not be required to accept for exchange, or to issue New Notes in exchange for,
any Old Notes, and may terminate or amend the Exchange Offer, if, at any time
before the acceptance of such New Notes for exchange, any of the following
events shall occur:
(a) any injunction, order or decree shall have been issued by any
court or any governmental agency that would prohibit, prevent or otherwise
materially impair the ability of the Company to proceed with the Exchange
Offer;
(b) any change, or any development involving a prospective change, in
the business or financial affairs of the Company or any of its subsidiaries
has occurred which, in the sole judgment of the Company, might materially
impair the ability of the Company to proceed with the Exchange Offer or
materially impair the contemplated benefits of the Exchange Offer to the
Company;
(c) any law, statute, rule or regulation is proposed, adopted or
enacted, which, in the sole judgment of the Company, might materially
impair the ability of the Company to proceed with the Exchange Offer or
materially impair the contemplated benefits of the Exchange Offer to the
Company;
(d) any governmental approval has not been obtained, which approval
the Company shall, in its sole discretion, deem necessary for the
consummation of the Exchange Offer as contemplated hereby; or
(e) the Exchange Offer will violate any applicable law or any
applicable interpretation of the staff of the Commission.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company in whole or in part at any time and from time to time in
its sole discretion. The failure by the Company at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time.
In addition, the Company will not accept for exchange any Old Notes
tendered, and no New Notes will be issued in exchange for any such Old Notes, if
at such time any stop order is threatened by the Commission or in effect with
respect to the Registration Statement of which this Prospectus is a part or the
qualification of the Indenture under the Trust Indenture Act of 1939, as amended
(the "TIA").
The Exchange Offer is not conditioned on any minimum principal amount of
Old Notes being tendered for exchange.
EXCHANGE AGENT
Marine Midland Bank has been appointed as the Exchange Agent for the
Exchange Offer. All executed Letters of Transmittal should be directed to the
Exchange Agent at one of the addresses set forth below. Questions and requests
for assistance, requests for additional copies of this Prospectus or of the
Letter of
63
<PAGE> 70
Transmittal and requests or Notices of Guaranteed Delivery should be directed to
the Exchange Agent addressed as follows:
<TABLE>
<S> <C> <C>
By Registered or Certified Mail: By Overnight Courier: By Hand:
MARINE MIDLAND BANK MARINE MIDLAND BANK MARINE MIDLAND BANK
140 Broadway, Level A 140 Broadway, Level A 140 Broadway, Level A
New York, New York 10005-1180 New York, New York 10005-1180 New York, New York 10005-1180
Attention: Corporate Trust Attention: Corporate Trust
Operations Operations
By Facsimile:
(for Eligible Institutions only)
(212) 658-2292
</TABLE>
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF SUCH LETTER OF TRANSMITTAL.
RESALES OF THE NEW NOTES
Based on positions of the Commission set forth in no-action letters issued
to third parties, the Company believes that the New Notes issued pursuant to the
Exchange Offer to a holder in exchange for Old Notes may be offered for resale,
resold and otherwise transferred by any holder thereof (other than such holder
which is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business and such holder is not
participating, does not intend to participate and has no arrangement or
understanding with any person to participate in the distribution of such New
Notes. The Company has not requested or obtained, and does not intend to seek,
an interpretive letter from the staff of the Commission with respect to this
Exchange Offer, and the Company and the holders are not entitled to rely on
interpretive advice provided by the staff of the Commission to other persons,
which advice was based on the facts and conditions represented in such letters.
Although there can be no assurance that the staff of the Commission would make a
similar determination with respect to the Exchange Offer, the Exchange Offer is
being conducted in a manner intended to be consistent with the facts and
conditions represented in such letters. If any holder acquires New Notes in the
Exchange Offer for the purpose of distributing or participating in a
distribution of the New Notes, such holder cannot rely on the position of the
staff of the Commission set forth in the above no-action and interpretive
letters and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction, unless an exemption from registration is otherwise available
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities (other than Old Notes acquired directly
from the Company). The Company has agreed that, for a period of 180 days
following the consummation of the Exchange Offer, it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution." Under the Registration Rights Agreement, the Company is
required to allow such broker-dealers and other persons, if any, subject to
similar prospectus delivery requirements to use this Prospectus in connection
with the resale of such New Notes.
FEES AND EXPENSES
The expenses of soliciting tenders of Old Notes will be borne by the
Company. The principal solicitation is being made by mail; however, additional
solicitation may be made by telegraph, telephone or in person by officers and
regular employees of the Company and its affiliates.
64
<PAGE> 71
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company. Such expenses include, among others, fees and expenses
of the Exchange Agent and the Trustee, accounting and legal fees and printing
costs.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Notes pursuant to the Exchange Offer. If, however, certificates
representing New Notes or Old Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be issued in the name
of, any person other than the registered holder of the Old Notes tendered, or if
tendered Old Notes are registered in the name of any person other than the
person signing the Letter of Transmittal, or if a transfer tax is imposed for
any reason other than the exchange of Old Notes pursuant to the Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other person) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes must
accompany the tender of Old Notes.
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Old Notes,
which is the principal amount as reflected in the Company's accounting records
on the date of the exchange. Accordingly, no gain or loss for accounting
purposes will be recognized by the Company. The expenses of the Exchange Offer
and the unamortized expenses related to the issuance of the Old Notes will be
amortized over the term of the New Notes.
REGULATORY APPROVALS
The Company does not believe that the receipt of any material federal or
state regulatory approvals will be necessary in connection with the Exchange
Offer.
TRANSFER TAXES
Holders who tender their Old Notes for exchange will not be obligated to
pay any transfer taxes in connection therewith, except that holders who instruct
the Company to register New Notes in the name of, or request that Old Notes not
tendered or not accepted in the Exchange Offer be returned to, a person other
than the registered tendering holder will be responsible for the payment of any
applicable transfer tax thereon.
OTHER
Participation in the Exchange Offer is voluntary and holders of Old Notes
should carefully consider whether to accept the terms and conditions thereof.
Holder of the Old Notes are urged to consult their financial and tax advisors in
making their own decisions on what action to take with respect to the Exchange
Offer.
As a result of the making of, and upon acceptance for exchange of all
validly tendered Old Notes pursuant to the terms of the Exchange Offer, the
Company will have fulfilled a covenant contained in the terms of the Old Notes
and the Registration Rights Agreement. Holders of the Old Notes who do not
tender their Old Notes in the Exchange Offer will continue to hold such Old
Notes and will be entitled to all the rights, and limitations applicable
thereto, under the Indenture, except for such rights under the Registration
Rights Agreement (including rights to receive Additional Interest) which by
their terms terminate or cease to have further effect as a result of the making
and consummation of the Exchange Offer. All untendered Old Notes will continue
to be subject to the restrictions on transfer set forth in the Indenture and the
Company does not currently anticipate that it will register the Old Notes under
the Securities Act. To the extent that Old Notes are tendered and accepted in
the Exchange Offer, the trading market, if any, for any remaining Old Notes
could be adversely affected. See "Risk Factors -- Consequences of Failure to
Exchange."
65
<PAGE> 72
DESCRIPTION OF THE NOTES
The Old Notes were, and the New Notes will be, issued under an Indenture,
dated as of July 29, 1998 (the "Indenture"), among the Company, the Guarantors
and Marine Midland Bank, as Trustee (the "Trustee"). The terms of the New Notes
are identical in all material respects to the Old Notes, except that the New
Notes have been registered under the Securities Act and, therefore, will not
bear legends restricting their transfer and will not contain certain provisions
providing for an increase in the interest rate thereon under certain
circumstances described in the Registration Rights Agreement, the provisions of
which will terminate upon the consummation of the Exchange Offer. The following
summary of certain provisions of the Indenture and the Notes does not purport to
be complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Indenture (including the definitions of certain terms
therein and those terms made a part thereof by the TIA) and the Notes.
A copy of the form of Indenture may be obtained from the Company by any
holder or prospective investor upon request. Definitions relating to certain
capitalized terms are set forth under "-- Certain Definitions" and throughout
this description. Capitalized terms that are used but not otherwise defined
herein have the meanings assigned to them in the Indenture and such definitions
are incorporated herein by reference.
GENERAL
The Notes will be limited in aggregate principal amount to $100,000,000.
The Notes will be general unsecured obligations of the Company, subordinate in
right of payment to all existing and future Senior Indebtedness of the Company,
senior in right of payment to all existing and future subordinated indebtedness
of the Company and pari passu in right of payment with all future senior
subordinated Indebtedness of the Company.
The Notes will be unconditionally guaranteed, on an unsecured senior
subordinated basis, as to payment of principal, premium, if any, and interest,
jointly and severally, by the Guarantors.
MATURITY, INTEREST AND PRINCIPAL
The Notes will mature on August 1, 2006. The Notes will bear interest at a
rate of 12 1/2% per annum from the date of original issuance of the Old Notes
until maturity. Interest is payable semi-annually in arrears on February 1 and
August 1, commencing February 1, 1999, to holders of record of the Notes at the
close of business on the immediately preceding January 15 and July 15,
respectively. Interest on the Notes will be paid on the basis of a 360-day year
of twelve 30-day months.
OPTIONAL REDEMPTION
The Notes will be redeemable at the option of the Company, in whole or in
part, at any time on or after August 1, 2003 at the following redemption prices
(expressed as a percentage of principal amount), together, in each case, with
accrued interest to the redemption date, if redeemed during the twelve-month
period beginning on August 1 of each year listed below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2003...................................................... 106.250%
2004...................................................... 103.125%
2005 and thereafter....................................... 100.000%
</TABLE>
Notwithstanding the foregoing, upon a Change of Control on or prior to
August 1, 2000, the Company, at its option, may redeem all but not less than all
of the Notes outstanding at a redemption price equal to 112.5% of the aggregate
principal amount of the Notes so redeemed plus accrued interest to the date of
redemption. In addition, the Company may redeem in the aggregate up to 35% of
the original principal amount of the Notes at any time and from time to time
prior to August 1, 2000 at a redemption price equal to 112.5% of the aggregate
principal amount so redeemed plus accrued interest to the redemption date out of
the Net Proceeds of one or more Public Equity Offerings; provided that at least
$65.0 million of the original principal amount of the Notes remain outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 90 days following the closing of any such Public Equity
Offering.
66
<PAGE> 73
In the event of redemption of fewer than all of the Notes, the Trustee
shall select by lot or in such other manner as it shall deem fair and equitable
the Notes to be redeemed. The Notes will be redeemable in whole or in part upon
not less than 30 nor more than 60 days' prior written notice, made by first
class mail to a holder's last address as it shall appear on the register
maintained by the Registrar of the Notes. On and after any redemption date,
interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Company shall fail to redeem any such Note.
SUBORDINATION
The indebtedness represented by the Notes is, to the extent and in the
manner provided in the Indenture, subordinated in right of payment to the prior
indefeasible payment and satisfaction in full in cash of all existing and future
Senior Indebtedness of the Company. As of June 28, 1998, after giving effect to
the application of the net proceeds of the Old Notes Offering, the principal
amount of outstanding Indebtedness which was Senior Indebtedness would have been
approximately $229.3 million. In addition, certain other amounts due under the
Credit Facility as of such date would have constituted Senior Indebtedness. See
Note (1) to "Capitalization" for non-interest bearing amounts due to IBMCC and
FINOVA as of such date.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or any general assignment
for the benefit of creditors or other marshaling of assets or liabilities of the
Company (except in connection with the merger or consolidation of the Company or
its liquidation or dissolution following the transfer of substantially all of
its assets, upon the terms and conditions permitted under the circumstances
described under "-- Merger, Consolidation or Sale of Assets") (all of the
foregoing referred to herein individually as a "Bankruptcy Proceeding" and
collectively as "Bankruptcy Proceedings"), the holders of Senior Indebtedness
will be entitled to receive payment and satisfaction in full in cash of all
amounts due on or in respect of all Senior Indebtedness before the holders of
the Notes are entitled to receive or retain any payment or distribution of any
kind (other than a payment or distribution in the form of Permitted Junior
Securities) on account of the Notes. In the event that, notwithstanding the
foregoing, the Trustee or any holder of Notes receives any payment or
distribution of assets of the Company of any kind, whether in cash, property or
securities, including, without limitation, by way of set-off or otherwise, in
respect of the Notes before all Senior Indebtedness is paid and satisfied in
full in cash, then such payment or distribution (other than a payment or
distribution in the form of Permitted Junior Securities) will be held by the
recipient in trust for the benefit of holders of Senior Indebtedness and will be
immediately paid over or delivered to the holders of Senior Indebtedness or
their representative or representatives to the extent necessary to make payment
in full of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution, or provision therefor, to or for the holders
of Senior Indebtedness. By reason of such subordination, in the event of
liquidation or insolvency, creditors of the Company who are holders of Senior
Indebtedness may recover more, ratably, than other creditors of the Company, and
creditors of the Company who are not holders of Senior Indebtedness or of the
Notes may recover more, ratably, than the holders of the Notes.
No payment or distribution (other than a payment or distribution in the
form of Permitted Junior Securities) of any assets or securities of the Company
or any Subsidiary of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Notes by the Company) may be made by or on
behalf of the Company or any Subsidiary, including, without limitation, by way
of set-off or otherwise, for or on account of the Notes, or for or on account of
the purchase, redemption, defeasance or other acquisition of any Notes, and
neither the Trustee nor any holder or owner of any Notes shall take or receive
from the Company or any Subsidiary, directly or indirectly in any manner,
payment in respect of all or any portion of the Notes following the occurrence
of a Payment Default, and in any such event, such prohibition shall continue
until such Payment Default is cured, waived in writing or ceases to exist. At
such time as the prohibition set forth in the preceding sentence shall no longer
be in effect,
67
<PAGE> 74
subject to the provisions of the following paragraph, the Company shall resume
making any and all required payments in respect of the Notes, including any
missed payments.
Upon the occurrence of a Non-Payment Event of Default, no payment or
distribution (other than a payment or distribution in the form of Permitted
Junior Securities) of any assets or securities of the Company or any Subsidiary
of any kind or character (including, without limitation, cash, property and any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company being subordinated to the
payment of the Notes by the Company) may be made by the Company, including,
without limitation, by way of set-off or otherwise, for or on account of the
Notes, or for or on account of the purchase, redemption, defeasance or other
acquisition of any Notes, and neither the Trustee nor any holder or owner of any
Notes shall take or receive from the Company or any Subsidiary, directly or
indirectly in any manner, payment in respect of all or any portion of the Notes
for a period (a "Payment Blockage Period") commencing on the date of receipt by
the Trustee of written notice from an authorized Person on behalf of the holders
of Designated Senior Indebtedness of the Company (the "Authorized Person") of
such Non-Payment Event of Default unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph) the earliest
of (w) more than 179 days shall have elapsed since receipt of such written
notice by the Trustee, (x) such Non-Payment Event of Default shall have been
cured or waived in writing or shall have ceased to exist, (y) or such Designated
Senior Indebtedness shall have been paid in full or (z) such Payment Blockage
Period shall have been terminated by written notice to the Company or the
Trustee from such Authorized Person, after which, in the case of clause (w),
(x), (y) or (z), the Company shall resume making any and all required payments
in respect of the Notes, including any missed payments. Notwithstanding any
other provisions of the Indenture, in no event shall a Payment Blockage Period
commenced in accordance with the provisions of the Indenture described in this
paragraph extend beyond 179 days from the date of the receipt by the Trustee of
the notice referred to above (the "Initial Blockage Period"). Any number of
additional Payment Blockage Periods may be commenced during the Initial Blockage
Period; provided, however, that no such additional Payment Blockage Period shall
extend beyond the Initial Blockage Period. After the expiration of the Initial
Blockage Period, no Payment Blockage Period may be commenced until at least 180
consecutive days have elapsed from the last day of the Initial Blockage Period.
Notwithstanding any other provision of the Indenture, no event of default with
respect to Designated Senior Indebtedness (other than a Payment Default) which
existed or was continuing on the date of the commencement of any Payment
Blockage Period initiated by an Authorized Person shall be, or be made, the
basis for the commencement of a second Payment Blockage Period initiated by an
Authorized Person, whether or not within the Initial Blockage Period, unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days.
Each Guarantee will, to the extent set forth in the Indenture, be
subordinated in right of payment to the prior payment in full of all Guarantor
Senior Indebtedness of the respective Guarantor, including obligations of such
Guarantor with respect to the Credit Facility (including any guarantee thereof),
and will be subject to the rights of holders of Designated Senior Indebtedness
of such Guarantor to initiate blockage periods, upon terms substantially
comparable to the subordination of the Notes to all Senior Indebtedness. As of
June 28, 1998, the Guarantors had approximately $229.3 million of Guarantor
Senior Indebtedness (excluding guarantees of Senior Indebtedness).
If the Company or any Guarantor fails to make any payment on the Notes or
any Guarantee when due or within any applicable grace period, whether or not on
account of payment blockage provisions, such failure would constitute an Event
of Default under the Indenture and would enable the holders of the Notes to
accelerate the maturity thereof. See "-- Events of Default."
A holder of Notes by his acceptance of Notes agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purpose.
68
<PAGE> 75
CERTAIN COVENANTS
The Indenture will contain, among others, the following covenants.
Limitation on Additional Indebtedness
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness); provided, that the Company and any Guarantor may incur
Indebtedness if (i) after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's Fixed
Charge Coverage Ratio (determined on a pro forma basis) is at least 2.0 to 1, if
such Indebtedness is incurred on or prior to August 1, 2000, and 2.5 to 1 if
such Indebtedness is incurred thereafter, and (ii) no Triggering Default Event
shall have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness. For purposes of computing the Fixed Charge
Coverage Ratio, (A) if the Indebtedness which is the subject of a determination
under this provision is Acquired Indebtedness, or Indebtedness incurred in
connection with the simultaneous acquisition (by way of merger, consolidation or
otherwise) of any Person, business, property or assets (an "Acquisition") or
Indebtedness of an Unrestricted Subsidiary being designated as a Restricted
Subsidiary, then such ratio shall be determined by giving effect (on a pro forma
basis, as if the transaction or redesignation had occurred at the beginning of
the four-quarter period used to make such calculation) to both the incurrence or
assumption of such Acquired Indebtedness or such other Indebtedness and the
inclusion in the Company's EBITDA of the EBITDA of the acquired Person,
business, property or assets or redesignated Subsidiary, (B) if any Indebtedness
outstanding or to be incurred (x) bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account on a pro forma basis any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term as at the date of determination in excess of 12 months), (y) bears, at the
option of the Company or a Restricted Subsidiary, a fixed or floating rate of
interest, the interest expense on such Indebtedness shall be computed by
applying, at the option of the Company or such Restricted Subsidiary, either a
fixed or floating rate and (z) was incurred under a revolving credit facility,
the interest expense on such Indebtedness shall be computed based upon the
average daily balance of such Indebtedness during the applicable period, (C) the
Fixed Charge Coverage Ratio shall not take into account Permitted Indebtedness
that is incurred at the same time as Indebtedness under this paragraph, (D) for
any quarter included in the calculation of such ratio prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
Acquisition was effected, by the Company or any Restricted Subsidiary, such
calculation shall be made on a pro forma basis, giving effect to each Asset
Sale, incurrence of Indebtedness or Acquisition, as the case may be, and the use
of any proceeds therefrom, as if the same had occurred at the beginning of the
four-quarter period used to make such calculation and (E) for any quarter prior
to the date hereof included in the calculation of such ratio, such calculation
shall be made on a pro forma basis, giving effect to the issuance of the Notes
and the use of the net proceeds therefrom as if the same had occurred at the
beginning of the four-quarter period used to make such calculation.
Notwithstanding the foregoing, (i) the Company and its Restricted
Subsidiaries may incur Permitted Indebtedness, without meeting the Indebtedness
incurrence provisions of the preceding paragraph, and (ii) neither the Company
nor any of its Restricted Subsidiaries may incur Indebtedness that ranks junior
in right of payment to the Notes that has a maturity or mandatory sinking fund
payment prior to the maturity of the Notes.
Limitation on Restricted Payments
The Company will not make, and will not permit any Restricted Subsidiary
to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Triggering Default Event shall have occurred and be continuing
at the time of or immediately after giving effect to such Restricted
Payment;
69
<PAGE> 76
(b) immediately after giving pro forma effect to such Restricted
Payment, the Company could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the covenant set forth under
"-- Limitation on Additional Indebtedness"; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) $10.0 million plus (2)(i) 50% of the
cumulative Consolidated Net Income of the Company subsequent to March 31,
1998 (or minus 100% of any cumulative deficit in Consolidated Net Income
during such period); (ii) 100% of the aggregate Net Proceeds and the fair
market value of securities or other property received by the Company from
the issue or sale, after the Issue Date, of Capital Stock (other than
Disqualified Capital Stock or Capital Stock of the Company issued to any
Restricted Subsidiary) of the Company or any Indebtedness or other
securities of the Company convertible into or exercisable or exchangeable
for Capital Stock (other than Disqualified Capital Stock) of the Company
which has been so converted or exercised or exchanged, as the case may be;
(iii) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date, an amount
equal to the lesser of the return of capital with respect to such
Investment and the initial amount of such Investment, in either case, less
the cost of the disposition of such Investment; and (iv) in the event
Capital Stock of an Unrestricted Subsidiary is paid as a dividend or other
distribution or payment on Capital Stock of the Company, the lesser of an
amount equal to any Investment in such Unrestricted Subsidiary which
constituted a Restricted Payment made after the Issue Date or the fair
market value of the Capital Stock so dividend or distributed. For purposes
of determining under this clause (c) the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its fair market value.
The provisions of this covenant will not prohibit (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of the
Indenture; (ii) the repurchase, redemption or other acquisition or retirement of
any shares of Capital Stock of the Company or Indebtedness subordinated to the
Notes by conversion into, or by or in exchange for, shares of Capital Stock
(other than Disqualified Capital Stock), or out of the Net Proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary) of other
shares of Capital Stock of the Company (other than Disqualified Capital Stock);
(iii) the repurchase, redemption or other acquisition or retirement of
Indebtedness of the Company subordinated to the Notes in exchange for, by
conversion into, or out of the Net Proceeds of, a substantially concurrent sale
or incurrence of Indebtedness (other than any Indebtedness owed to a Restricted
Subsidiary) of the Company that is contractually subordinated in right of
payment to the Notes to at least the same extent as the Indebtedness
subordinated to the Notes being redeemed or retired; (iv) the retirement of any
shares of Disqualified Capital Stock by conversion into, or by exchange for,
shares of Disqualified Capital Stock, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary) of other
shares of Disqualified Capital Stock; (v) the mandatory repurchase of Capital
Stock of the Company by the Company upon the death or disability of certain
current and former employees of the Company pursuant to the terms of Section
5(c) of the Stockholders' Agreement, as amended and in effect on the Issue Date;
(vi) the repurchase, redemption or other acquisition or retirement for value of
any Capital Stock of the Company held by any of the Company's (or any of its
Subsidiaries') current or former employees; provided, that the aggregate price
paid pursuant to this clause (vi) for all such repurchased, redeemed, acquired
or retired Capital Stock shall not exceed $2.0 million; (vii) any Investment
made with the proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of shares of Capital Stock of the Company (other than
Disqualified Capital Stock); and (viii) the purchase, repurchase, redemption or
other acquisition or retirement for value of Junior Subordinated Debentures
(each, a "repurchase") which would otherwise constitute a Restricted Payment;
provided that the aggregate amount expended in connection with repurchases under
this clause (viii) may not exceed the excess of $4.1 million over the aggregate
amount expended in connection with repurchases under this clause (viii) with
respect to Junior Subordinated Debentures that are subsequently applied to repay
the Junior Subordinated Debentures in accordance with their terms; provided,
that, for purposes of determining whether Restricted Payments can be made
pursuant to the previous paragraph, all payments made pursuant to clauses (i),
(v) (net of any amounts received by the Company from insuring the lives of
current or former employees), (vi) and (vii) of
70
<PAGE> 77
this paragraph will reduce the amount that would otherwise be available for such
Restricted Payments and payments made pursuant to the other clauses of this
paragraph shall not so reduce the amount available for Restricted Payments.
Not later than the date of making any Restricted Payment which may only be
made pursuant to subclause (c) above, the Company shall deliver to the Trustee
an Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this covenant
were computed, which calculations may be based upon the Company's latest
available financial statements, and that no Triggering Default Event exists and
is continuing and no Triggering Default Event will occur immediately after
giving effect to such Restricted Payment.
Limitation on Other Senior Subordinated Debt
The Company will not, and will not permit any Guarantor, to incur any
Indebtedness that is both (i) subordinate in right of payment to any Senior
Indebtedness of the Company or any Guarantor Senior Indebtedness of such
Guarantor, as the case may be, and (ii) senior in right of payment to the Notes
or the Guarantee of such Guarantor, as the case may be. For purposes of this
covenant, Indebtedness is deemed to be senior in right of payment to the Notes
or any of the Guarantees, as the case may be, if it is not explicitly
subordinate in right of payment to Senior Indebtedness or Guarantor Senior
Indebtedness, as the case may be, at least to the same extent as the Notes and
the Guarantee, as the case may be, are subordinate to Senior Indebtedness or
Guarantor Senior Indebtedness, as the case may be.
Limitations on Liens
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur or otherwise cause or suffer to exist any Liens of any kind (other
than Permitted Liens) upon any property or asset of the Company or such
Restricted Subsidiary to secure Indebtedness which is pari passu with or
subordinate in right of payment to the Notes or the Guarantees, as the case may
be, unless (i) if such Lien secures Indebtedness which is pari passu with the
Notes or the Guarantees, the Notes or the Guarantees, as the case may be, are
secured on an equal and ratable basis with the obligation so secured until such
time as such obligation is no longer secured by a Lien and (ii) if such Lien
secures Indebtedness which is subordinated to the Notes or the Guarantees, such
Indebtedness secured by such Lien and such Lien shall be subordinated to the
Lien granted to the Holders of the Notes to the same extent as such Indebtedness
is subordinated to the Notes or the Guarantees, as the case may be.
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (a)(i) pay dividends or make any other distributions to the
Company or any other Restricted Subsidiary (A) on its Capital Stock or (B) with
respect to any other interest or participation in, or measured by, its profits,
or (ii) pay any Indebtedness owed to the Company or any Restricted Subsidiary or
(b) make loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its properties or assets to the Company or any other
Restricted Subsidiary, except for such encumbrances or restrictions existing
under or by reasons of (i) encumbrances or restrictions existing on the Issue
Date to the extent and in the manner such encumbrances and restrictions are in
effect on the Issue Date, (ii) the Indenture, the Notes and the Guarantees,
(iii) the Credit Facility, (iv) applicable law, (v) customary nonassignment
provisions in leases, (vi) permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Refinancing Indebtedness
shall not be materially more restrictive than those contained in the agreements
governing the Indebtedness being refinanced, (vii) customary restrictions
imposed in connection with Purchase Money Indebtedness or Capital Lease
Obligations permitted under the covenant entitled "-- Limitation on Incurrence
of Indebtedness" as long as such customary restrictions are not materially more
restrictive than those set forth in the Credit Facility on the Issue Date
(except that they may impose restrictions on the transfer of the asset so
financed), (viii) restrictions in agreements with Persons acquired by the
Company or any Restricted Subsidiary which do not extend to
71
<PAGE> 78
Property or assets other than the Property or assets of such Persons, (ix)
customary restrictions in security agreements or mortgages securing Indebtedness
of the Company or a Restricted Subsidiary to the extent such restrictions
restrict the transfer of the property subject to such security agreements and
mortgages or (x) customary restrictions with respect to a Restricted Subsidiary
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary.
Limitation on Transactions with Affiliates
The Company will not, and will permit any Restricted Subsidiary to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate (including
entities in which the Company or any Restricted Subsidiaries owns a minority
interest) or holder of 10% or more of the Company's Common Stock (an "Affiliate
Transaction") or extend, renew, waive or otherwise modify the terms of any
Affiliate Transaction entered into prior to the Issue Date unless (i) such
Affiliate Transaction is between or among the Company and its Wholly Owned
Subsidiaries or (ii) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Company or such Restricted Subsidiary, as the
case may be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction involving an amount or having
a fair market value in excess of $1.0 million which is not permitted under
clause (i) above, the Company must obtain a resolution of the Board of Directors
certifying that such Affiliate Transaction complies with clause (ii) above. In
transactions with a fair market value in excess of $5.0 million which are not
permitted under clause (i) above, the Company must obtain a written opinion as
to the fairness of such a transaction to the Company or a Restricted Subsidiary
from a financial point of view from an independent investment banking,
accounting or appraisal firm.
The foregoing provisions will not apply to (i) any Restricted Payment that
is not prohibited by the provisions described under "-- Limitation on Restricted
Payments", (ii) fees and compensation paid to, and indemnity provided on behalf
of, officers, directors or employees of the Company or any Restricted Subsidiary
of the Company as determined in good faith by the Board of Directors of the
Company, (iii) any agreement as in effect as of the Issue Date or any amendment,
modification or replacement thereof or any transaction contemplated thereby so
long as any such amendment, modification or replacement is not more
disadvantageous to the holders of the Notes in any material respect than the
original agreement or transaction as in effect on the Issue Date, (iv) the
payment to Airlie Enterprises L.L.C. of an overhead allocation fee of $15,000
per month and (v) the payment to Knowledge Alliance on an annual basis in
connection with the training of Company employees of an amount not to exceed the
expenses incurred by the Company during its fiscal year ended June 28, 1998 in
connection with the comparable training of Company employees.
Limitation on Certain Asset Sales
The Company will not, and will not permit any Restricted Subsidiary to,
consummate an Asset Sale unless (i) the Company or such Restricted Subsidiary,
as the case may be, receives consideration at the time of such sale or other
disposition at least equal to the fair market value thereof; (ii) not less than
75% of the consideration received by the Company and its Restricted Subsidiaries
is in the form of cash or Temporary Cash Investments; and (iii) the Asset Sale
Proceeds received by the Company or such Restricted Subsidiary are applied (a)
first, to the extent the Company elects, or is required, to prepay, repay or
purchase debt under any then existing Senior Indebtedness or Guarantor Senior
Indebtedness within 365 days following the receipt of the Asset Sale Proceeds
from any Asset Sale, provided that any such repayment results in a permanent
reduction of the commitments thereunder in an amount equal to the principal
amount so repaid; (b) second, to the extent of the balance of Asset Sale
Proceeds after application as described above, to the extent the Company elects,
to an investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or property of
another Person) used or useful in businesses similar or ancillary to the
business of the Company or Restricted Subsidiary as conducted at the time of
such
72
<PAGE> 79
Asset Sale, provided that such investment occurs on or prior to the 365th day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date"); and (c)
third, if on the Reinvestment Date the Available Asset Sale Proceeds with
respect to any Asset Sale exceed $5.0 million, the Company shall apply an amount
equal to such Available Asset Sale Proceeds to an offer to purchase the Notes
(which offer may, at the option of the Company, also be made on a pro rata basis
to holders of all other Indebtedness of the Company ranking pari passu with the
Notes or the Guarantees), at a purchase price (in the case of the Notes) in cash
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase (an "Excess Proceeds Offer"). If an Excess
Proceeds Offer is not fully subscribed, the Company may retain the portion of
the Available Asset Sale Proceeds not required to repurchase Notes. Pending the
final application of any such Asset Sale Proceeds in accordance with this
paragraph, the Company or such Restricted Subsidiary may invest such Asset Sale
Proceeds in any manner not prohibited by the Indenture including, without
limitation, the temporary repayment of Indebtedness.
If the Company is required to make an Excess Proceeds Offer, the Company
shall mail, within 30 days following the Reinvestment Date, a notice to the
Holders stating, among other things: (1) that such Holders have the right to
require the Company to apply the Available Asset Sale Proceeds to purchase such
Notes at a purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase; (2) the
purchase date, which shall be no earlier than 30 days and not later than 60 days
from the date such notice is mailed; (3) the instructions, determined by the
Company, that each Holder must follow in order to have such Notes repurchased;
and (4) the calculations used in determining the amount of Available Asset Sale
Proceeds to be applied to the repurchase of such Notes.
Limitation on Capital Stock of Restricted Subsidiaries
The Company will not (i) sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of any Restricted Subsidiary (other than under the
Credit Facility, under the terms of any Designated Senior Indebtedness or, in
the case of any Person which becomes a Restricted Subsidiary after the Issue
Date, a pledge of the Capital Stock of such Person in connection with the
financing of such acquisition) or (ii) permit any Restricted Subsidiary to issue
any Capital Stock, other than directors qualifying shares or to the Company or
to a Wholly Owned Subsidiary of the Company. The foregoing restrictions shall
not apply to an Asset Sale made in compliance with "-- Limitation on Certain
Asset Sales" or any Restricted Payment that is not prohibited by the provisions
described under "-- Limitation on Restricted Payments."
Payments for Consent
Neither the Company nor any Restricted Subsidiary shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all holders of the Notes which so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
Additional Guarantees
If the Company or any of its Restricted Subsidiaries acquires, creates,
organizes or designates a domestic Restricted Subsidiary, the fair market value
of which exceeds $25,000, then such newly acquired, created, organized or
designated domestic Restricted Subsidiary shall, within 30 days after the date
of its acquisition, creation, organization or designation, (i) execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such domestic Restricted Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms set forth in the Indenture and (ii) deliver to the
Trustee an opinion of counsel that such supplemental indenture has been duly
authorized, executed and delivered by such domestic Restricted Subsidiary and
constitutes a legal, valid, binding and enforceable obligation of such domestic
Restricted Subsidiary, subject to normal exceptions. Thereafter, such domestic
Restricted Subsidiary shall be a Guarantor for all purposes of the Indenture.
73
<PAGE> 80
Change of Control Offer
Within 30 days of the occurrence of a Change of Control, the Company shall
notify the Trustee in writing of such occurrence and shall make an offer to
purchase (the "Change of Control Offer") the outstanding Notes at a purchase
price equal to 101% of the principal amount thereof plus any accrued interest to
the Change of Control Payment Date (as hereinafter defined) (such purchase price
being hereinafter referred to as the "Change of Control Purchase Price") in
accordance with the procedures set forth in this covenant.
Within 30 days of the occurrence of a Change of Control, the Company also
shall (i) cause a notice of the Change of Control Offer to be sent at least once
to the Dow Jones News Service or similar business news service in the United
States and (ii) send by first-class mail, postage prepaid, to the Trustee and to
each holder of the Notes, at the address appearing in the register maintained by
the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 30 days from the date such notice
is mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of the Notes delivered for purchase and a
statement that such holder is withdrawing his election to have such Notes
purchased;
(7) that holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, provided that each Note purchased and each such new
Note issued shall be in an original principal amount in denominations of
$1,000 and integral multiples thereof;
(8) any other procedures that a holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Notes or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee Notes so accepted together with
an Officers' Certificate stating the Notes or portions thereof tendered to the
Company. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly authenticate
and mail to such holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
issued in an original principal amount in denominations of $1,000 and integral
multiples thereof.
The Indenture requires that if the Credit Facility is in effect, or any
amounts are owing thereunder or in respect thereof, at the time of the
occurrence of a Change of Control, prior to the mailing of the notice to
74
<PAGE> 81
holders described in the preceding paragraph, but in any event within 30 days
following any Change of Control, the Company covenants to (i) repay in full all
obligations under or in respect of the Credit Facility or offer to repay in full
all obligations under or in respect of the Credit Facility and repay the
obligations under or in respect of the Credit Facility of each lender who has
accepted such offer or (ii) obtain the requisite consent under the Credit
Facility to permit the purchase of the Notes as described above. The Company
must first comply with the covenant described in the preceding sentence before
it shall be required to purchase Notes in the event of a Change of Control;
provided that the Company's failure to comply with the covenant described in the
preceding sentence constitutes an Event of Default described in clause (iii)
under "-- Events of Default" below if not cured within 60 days after the notice
required by such clause. As a result of the foregoing, a holder of the Notes may
not be able to compel the Company to purchase the Notes unless the Company is
able at the time to refinance all of the obligations under or in respect of the
Credit Facility or obtain requisite consents under the Credit Facility. Failure
by the Company to make a Change of Control Offer when required by the Indenture
constitutes a default under the Indenture and, if not cured within 60 days after
notice, constitutes an Event of Default.
The Indenture provides that, (A) if the Company or any Restricted
Subsidiary has issued any outstanding (i) Indebtedness that is subordinated in
right of payment to the Notes or (ii) Preferred Stock, and the Company or such
Restricted Subsidiary is required to make a change of control offer or to make a
distribution with respect to such subordinated Indebtedness or Preferred Stock
in the event of a change of control, the Company shall not consummate any such
offer or distribution with respect to such subordinated Indebtedness or
Preferred Stock until such time as the Company shall have paid the Change of
Control Purchase Price in full to the holders of Notes that have accepted the
Company's Change of Control Offer and shall otherwise have consummated the
Change of Control Offer made to holders of the Notes and (B) the Company will
not issue Indebtedness that is subordinated in right of payment to the Notes or
Preferred Stock with change of control provisions requiring the payment of such
Indebtedness or Preferred Stock prior to the payment of Notes properly tendered
pursuant to a Change of Control Offer in the event of a Change of Control under
the Indenture.
In the event that a Change of Control occurs and the holders of Notes
exercise their right to require the Company to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Company will comply with the requirements of Rule 14e-1 as
then in effect with respect to such purchase.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company will not consolidate with, merge with or into, or transfer all
or substantially all of its assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions) to, any Person
unless: (i) the Company shall be the continuing Person, or the Person (if other
than the Company) formed by such consolidation or into which the Company is
merged or to which the properties and assets of the Company are transferred
shall be a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of the Company under
the Notes and the Indenture, and the obligations under the Indenture shall
remain in full force and effect; (ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iii) immediately after giving effect to such
transaction on a pro forma basis the Company or such Person could incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) under the
covenant set forth under "-- Certain Covenants -- Limitation on Additional
Indebtedness," provided that a Person that is a Restricted Subsidiary may merge
into the Company or another Person that is a Restricted Subsidiary without
complying with this clause (iii). Notwithstanding the foregoing, in no event
need clause (i) of the preceding sentence be complied with in the event of a
transfer, through merger or otherwise, of the Company's Product Business;
however, in the event such Product Business constitutes all or substantially all
of the Company's assets, clauses (ii) and (iii) of the preceding sentence must
be complied with in the event of such a transfer.
75
<PAGE> 82
The Company will not permit any Guarantor to consolidate with, merge with
and into, or transfer all or substantially all of its assets (as an entirety or
substantially as an entirety in one transaction or series of related
transactions) to, any Person unless: (i) the transaction complies with
"-- Limitation on Certain Asset Sales", or (ii)(A) the Person into or to which
such Guarantor consolidates, merges or transfers its assets is (x) the Company
or a Guarantor or (y) a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia and shall
expressly assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all of the obligations of such
Guarantor under its Guarantee and the Indenture, (B) immediately before and
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (C) immediately after giving
effect to such transaction on a pro forma basis the Company or such Person could
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the covenant set forth under "-- Limitation on Additional
Indebtedness."
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an opinion of counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the Properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the Properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the assets of the Company. In
addition, the phrase "all or substantially all" of the assets of the Company
will likely be interpreted under applicable law and will be dependent upon
particular facts and circumstances. As a result, there may be a degree of
uncertainty in ascertaining whether a sale or transfer of "all or substantially
all" of the assets of the Company or any Restricted Subsidiary has occurred.
GUARANTEES
The Notes are guaranteed on an unsecured senior subordinated basis by the
Guarantors. All payments pursuant to the Guarantee by a Guarantor are
subordinated in right of payment to the prior payment in full of all Guarantor
Senior Indebtedness of such Guarantor, to the same extent and in the same manner
that all payments pursuant to the Notes are subordinated in right of payment to
the prior payment in full of all Senior Indebtedness of the Company.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any Guarantor Senior Indebtedness of
such Guarantor) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. Each Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if all or substantially all of its assets are sold or all of its
Capital Stock is sold, in each case in a transaction in compliance with the
covenant described under "-- Certain Covenants -- Limitation on Certain Asset
Sales," or all of its Capital Stock is disposed of in a Restricted Payment that
is not prohibited by the provisions described under "-- Certain
Covenants -- Limitation on Restricted Payments" or the Guarantor merges with or
into or consolidates with, or transfers all or substantially all of its assets
to, the Company or another Guarantor in a transaction in compliance with
"-- Merger, Consolidation or Sale of Assets," and such Guarantor has delivered
to the Trustee an Officers' Certificate and an opinion of counsel, each stating
that all conditions precedent herein provided for relating to such transaction
have been complied with.
76
<PAGE> 83
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default":
(i) default in payment of any principal of, or premium, if any, on the
Notes;
(ii) default for 30 days in payment of any interest on the Notes;
(iii) default by the Company or any Guarantor in the observance or
performance of any other covenant in the Notes or the Indenture for 60 days
after written notice from the Trustee or the holders of not less than 25%
in aggregate principal amount of the Notes then outstanding;
(iv) failure to pay when due (within the grace period provided in such
Indebtedness) principal, interest or premium in an aggregate amount of
$10.0 million or more with respect to any Indebtedness of the Company or
any Restricted Subsidiary, or the acceleration of any such Indebtedness
aggregating $10.0 million or more, which default or acceleration shall not
be cured, waived or postponed pursuant to an agreement with the holders of
such Indebtedness within 60 days after written notice, or such acceleration
shall not be rescinded or annulled within 20 days after written notice;
(v) any final judgment or judgments which can no longer be appealed
for the payment of money in excess of $10.0 million shall be rendered
against the Company or any Restricted Subsidiary (other than a judgment or
portion thereof as to which an insurance company of national reputation has
accepted full liability) and shall not be discharged or fully bonded for
any period of 60 consecutive days during which a stay of enforcement shall
not be in effect; and
(vi) certain events involving bankruptcy, insolvency or reorganization
of the Company or any Significant Subsidiary thereof.
The Indenture provides that the Trustee may withhold notice to the holders
of the Notes of any default (except in payment of principal of, premium, if any,
or interest on the Notes) if the Trustee considers it to be in the best interest
of the holders of the Notes to do so.
The Indenture will provide that if an Event of Default (other than an Event
of Default resulting from certain events of bankruptcy, insolvency or
reorganization of the Company) shall have occurred and be continuing, then the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued interest to the
date of acceleration and (i) such amounts with respect to the Notes shall become
immediately due and payable or (ii) if there are any amounts outstanding under
or in respect of the Credit Facility, such amounts with respect to the Notes
shall become due and payable upon the first to occur of an acceleration of
amounts outstanding under or in respect of the Credit Facility or five business
days after receipt by the Company and the representative of the holders of
Senior Indebtedness under or in respect of the Credit Facility of notice of the
acceleration of the Notes; provided, however, that after such acceleration but
before a judgment or decree based on such acceleration is obtained by the
Trustee, the holders of a majority in aggregate principal amount of outstanding
Notes may, under certain circumstances, rescind and annul such acceleration if
all Events of Default, other than nonpayment of accelerated principal, premium
or interest, have been cured or waived as provided in the Indenture. In case an
Event of Default resulting from certain events of bankruptcy, insolvency or
reorganization of the Company shall occur, the principal, premium and interest
with respect to all of the Notes shall be due and payable immediately without
any declaration or other act on the part of the Trustee or the holders of the
Notes.
The holders of a majority in principal amount of the Notes then outstanding
shall have the right to waive any existing default or compliance with any
provision of the Indenture, the Notes or the Guarantees and to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, subject to certain limitations specified in the Indenture.
No holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless also the holders of at least 25% in aggregate principal
amount of the
77
<PAGE> 84
outstanding Notes shall have made written request and offered reasonable
indemnity to the Trustee to institute such proceeding as a trustee, and unless
the Trustee shall not have received from the holders of a majority in aggregate
principal amount of the outstanding Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
However, such limitations do not apply to a suit instituted on such Note on or
after the respective due dates expressed in such Note.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to the Notes (except for
the obligations to register the transfer or exchange of such Notes, to replace
temporary or mutilated, destroyed, lost or stolen Notes, to maintain an office
or agency in respect of the Notes and to hold monies for payment in trust)
("defeasance") and to have the Guarantors released from any and all obligations
with respect to the Guarantees or (b) to be released from its obligations with
respect to the Notes under certain covenants contained in the Indenture and
described above under "-- Certain Covenants" ("covenant defeasance"), upon the
deposit with the Trustee (or other qualifying trustee), in trust for such
purpose, of money and/or United States Government Obligations which through the
payment of principal and interest in accordance with their terms will provide
money, in an amount sufficient to pay the principal of, premium, if any, and
interest on the Notes, on the scheduled due dates therefor or on a selected date
of redemption in accordance with the terms of the Indenture. Such a trust may
only be established if, among other things, the Company has delivered to the
Trustee an opinion of counsel (i) to the effect that neither the trust nor the
Trustee will be required to register as an investment company under the
Investment Company Act of 1940, as amended, and (ii) in the case of defeasance,
describing either a private ruling concerning the Notes or a published ruling of
the Internal Revenue Service to the effect that, and in the case of covenant
defeasance, stating that, holders of the Notes or Persons in their positions
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred.
MODIFICATION OF INDENTURE
From time to time, the Company, the Guarantors and the Trustee may, without
the consent of holders of the Notes, amend the Indenture, the Notes or the
Guarantees or supplement the Indenture for certain specified purposes, including
providing for uncertificated Notes in addition to certificated Notes, and curing
any ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any holder. The Indenture contains
provisions permitting the Company, the Guarantors and the Trustee, with the
consent of holders of at least a majority in principal amount of the outstanding
Notes, to modify or supplement the Indenture or the Notes, except that no such
modification shall, without the consent of each holder affected thereby, (i)
reduce the amount of Notes whose holders must consent to an amendment,
supplement, or waiver to the Indenture or the Notes, (ii) reduce the rate of or
change the time for payment of interest on any Note, (iii) reduce the principal
of or premium on or change the stated maturity of any Note, (iv) make any Note
payable in money other than that stated in the Note or change the place of
payment from New York, New York, (v) change the amount or time of any payment
required by the Notes or reduce the premium payable upon any redemption of
Notes, or change the time before which no such redemption may be made, (vi)
waive a default in the payment of the principal of, interest on, or redemption
payment with respect, to any Note, (vii) amend, change or modify the obligation
of the Company to make and consummate a Change of Control Offer in the event of
a Change of Control or make and consummate an Excess Proceeds Offer, in each
case after such obligation has arisen, or waive any Default in the performance
of any such offers or modify any of the provisions or definitions with respect
to any such offers, (viii) modify or change any provision of the Indenture
affecting the ranking of the Notes in a manner adverse to the holders of the
Notes, or (ix) take any other action otherwise prohibited by the Indenture to be
taken without the consent of each holder affected thereby.
78
<PAGE> 85
REPORTS TO HOLDERS
The Indenture will provide that whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company
shall furnish to the Trustee and to the holders of the Notes at the same time it
is or would have been required to file them with the Commission, (i) all annual
and quarterly financial information that would be required to be contained in a
filing with the Commission on Forms 10-K and 10-Q (without exhibits) if the
Company were required to file such forms, including a section entitled
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report thereon
by the Company's independent certified public accountants and (ii) all current
reports that would be required to be filed with the Commission on Form 8-K
(without exhibits) if the Company were required to file such reports. In
addition, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing). In addition, the Company shall furnish to the Trustee,
the holders of the Notes and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144(d)(4) under the Securities Act and the exhibits omitted from the information
furnished pursuant to the preceding sentence, for so long as the Notes are not
freely transferable under the Securities Act. The Company will also comply with
the other provisions of sec. 314(a) of the Trust Indenture Act.
COMPLIANCE CERTIFICATE
The Company will deliver to the Trustee on or before 120 days after the end
of the Company's fiscal year and on or before 60 days after the end of each of
the first, second and third fiscal quarters in each year an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that has occurred. If they do, the certificate will describe the Default
or Event of Default and its status.
THE TRUSTEE
The Trustee under the Indenture will be the Registrar and Paying Agent with
regard to the Notes. The Indenture provides that, except during the continuance
of an Event of Default, the Trustee will perform only such duties as are
specifically set forth in the Indenture. During the existence of an Event of
Default, the Trustee will exercise such rights and powers vested in it under the
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise under the circumstances in the conduct of such person's
own affairs.
TRANSFER AND EXCHANGE
Holders of the Notes may transfer or exchange Notes in accordance with the
Indenture. The Registrar under such Indenture may require a holder, among other
things, to furnish appropriate endorsements and transfer documents, and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
is not required to transfer or exchange any Note selected for redemption. Also,
the Registrar is not required to transfer or exchange any Note for a period of
15 days before selection of the Notes to be redeemed.
The Notes will be issued in a transaction exempt from registration under
the Securities Act and will be subject to the restrictions on transfer described
in "Notice to Investors."
The registered holder of a Note may be treated as the owner of it for all
purposes.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants contained in the Indenture. Reference is made to the Indenture for the
full definition of all such terms as well as any other capitalized terms used
herein for which no definition is provided. For purposes of the covenants, the
financial and other provisions of these definitions, when used with respect to
the Company, shall be determined on a consolidated basis with respect to the
Company and the Restricted Subsidiaries only.
79
<PAGE> 86
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or is merged or consolidated with or into the Company or a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person.
"Adjusted Net Assets" of any Person at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Person exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding liabilities under the Guarantee of such Person at such date and
(y) the present fair saleable value of the assets of such Person at such date
exceeds the amount that will be required to pay the probable liability of such
Person on its debts (after giving effect to any collection from any Subsidiary
of such Person in respect of the obligations of such Person under the Guarantee
of such Person), excluding Indebtedness in respect of the Guarantee of such
Person, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such specified Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Asset Sale" means the sale, transfer or other disposition (other than to
the Company or any Restricted Subsidiary) in any single transaction or series of
related transactions having a fair market value in excess of $1 million of (a)
any Capital Stock of or other equity interest in any Restricted Subsidiary, (b)
all or substantially all of the assets of the Company or of any Restricted
Subsidiary, (c) real property or (d) all or substantially all of the assets of a
division, line of business or comparable business segment or part thereof of the
Company or any Restricted Subsidiary, provided that Asset Sales shall not
include (i) sales, transfers or other dispositions to the Company or to a
Restricted Subsidiary or to any other Person if after giving effect to such
sale, lease, conveyance, transfer or other disposition such other Person becomes
a Restricted Subsidiary, (ii) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under "-- Merger, Consolidation or Sale of Assets" (unless such transfer is of
the Company's Product Business and clause (i) of the first paragraph under such
section is not being complied with) and (iii) any Restricted Payment permitted
under "Certain Covenants -- Limitation on Restricted Payments."
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, (c) provision for minority interest holders
in any Restricted Subsidiary as a result of such Asset Sale and (d) deduction of
appropriate amounts to be provided by the Company or a Restricted Subsidiary as
a reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or disposed of in such Asset Sale and retained by the Company or a
Restricted Subsidiary after such Asset Sale, including, without limitation,
pension and other post employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other noncash consideration received by the Company or any Restricted Subsidiary
from such Asset Sale or other disposition upon the liquidation or conversion of
such notes or noncash consideration into cash.
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sale that have not been applied in
accordance with clauses (iii)(a) or (iii)(b), and which have not yet been the
basis for an Excess Proceeds Offer in accordance with clause (iii)(c), of the
first paragraph of "-- Certain Covenants -- Limitation on Certain Asset Sales.
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the
80
<PAGE> 87
nature of an equity interest in such Person or any option, warrant or other
security convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
A "Change of Control" of the Company will be deemed to have occurred at
such time as (i) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of the total voting or economic power of the Common Stock of
the Company and/or warrants or options to acquire such Common Stock on a fully
diluted basis, (ii) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner of 35% or more of
the total voting power of the Common Stock of the Company and the Permitted
Holders beneficially own, in the aggregate, a lesser percentage of the total
voting power of the Common Stock of the Company than such other Person and do
not have the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company,
(iii) the Company consolidates with, or merges with or into, another Person or
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or merges with or
into the Company, pursuant to a transaction in which the outstanding Common
Stock of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where (a)(1) the outstanding
Common Stock of the Company is not converted or exchanged at all (except to the
extent necessary to reflect a change in the jurisdiction of incorporation) or is
converted into or exchanged for Common Stock (other than Disqualified Capital
Stock) of the surviving or transferee corporation (the "Surviving Entity") and
(2) immediately after such transaction, no "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), other than a
Permitted Holder, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than a majority of the total outstanding Common
Stock of the Surviving Entity, or (b) the holders of the Common Stock of the
Company outstanding immediately prior to the consolidation or merger hold,
directly or indirectly, at least a majority of the Common Stock of the surviving
corporation immediately after such consolidation or merger, or (iv) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company has been approved by 66 2/3% of the
directors then still in office who either were directors at the beginning of
such period or whose election or recommendation for election was previously so
approved) cease to constitute a majority of the Board of Directors of the
Company.
"Common Stock" of any Person means all Capital Stock of such Person that is
generally entitled to (i) vote in the election of directors of such Person or
(ii) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Consolidated Fixed Charges" means, with respect to any Person, for any
period the sum of a Person's (i) Consolidated Interest Expense, plus (ii) the
product of (x) the aggregate amount of all dividends paid on Disqualified
Capital Stock of such Person or, in the case of the Company, on each series of
Preferred Stock of each Restricted Subsidiary (other than dividends paid or
payable in additional shares of Preferred Stock or to such Person or any of its
Wholly Owned Subsidiaries) times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective combined
federal, state and local tax rate of such Person (expressed as a decimal), in
each case, for the last four fiscal quarters for which financial statements are
available.
"Consolidated Interest Expense" means, with respect to any Person, for any
period and without duplication, the aggregate amount of interest which, in
conformity with GAAP, would be set forth opposite the caption "interest expense"
or any like caption on an income statement for such Person and its Subsidiaries
81
<PAGE> 88
on a consolidated basis (including, but not limited to, (i) imputed interest
included in Capitalized Lease Obligations, (ii) all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (iii) net payments made in connection with Interest Rate
Agreements, (iv) the interest portion of any deferred payment obligation, (v)
amortization of discount or premium, if any, and (vi) all other non-cash
interest expense (other than interest amortized to cost of sales)) plus all net
capitalized interest for such period and all interest paid under any guarantee
of Indebtedness (including a guarantee of principal, interest or any combination
thereof) of any Person, and minus (a) net payments received in connection with
Interest Rate Agreements and (b) amortization of deferred financing costs and
expenses.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (a) the Net Income of any Person (the "other Person") in
which the Person in question or any of its Subsidiaries has less than a 100%
interest (which interest does not cause the net income of such other Person to
be consolidated into the net income of the Person in question in accordance with
GAAP) shall be included only to the extent of the amount of dividends or
distributions paid to the Person in question or the Subsidiary, (b) the Net
Income of any Subsidiary of the Person in question (other than a Guarantor) that
is subject to any restriction or limitation on the payment of dividends or the
making of other distributions (other than pursuant to the Notes or the
Indenture) shall be excluded to the extent of such restriction or limitation,
(c)(i) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition and (ii) any
net gain (but not loss) resulting from an Asset Sale by the Person in question
or any of its Subsidiaries other than in the ordinary course of business shall
be excluded and (d) extraordinary, unusual and non-recurring gains and losses
shall be excluded.
"Credit Facility" means collectively the IBMCC Working Capital Line of
Credit, the FINOVA Inventory Line of Credit and any other agreement or
arrangement with a vendor pursuant to which the Company or its Subsidiaries
purchases inventory for resale as such agreements or arrangements may be
amended, modified or supplemented from time to time or deferred, renewed,
extended, refunded, refinanced, restructured or replaced from time to time in
whole or in part, whether with the original parties or other lenders and whether
provided under similar agreements or otherwise and whether prior to, at or
subsequent to the termination or expiration of any such line of credit or other
agreement or arrangement.
"Designated Senior Indebtedness", as to the Company or any Guarantor, as
the case may be, means any Senior Indebtedness or Guarantor Senior Indebtedness,
as the case may be, (i) under the Credit Facility and (ii) in an original
principal amount (or committed availability) of at least $50.0 million if the
instrument governing the same expressly provides that such Indebtedness is
"Designated Senior Indebtedness" for purposes of the Indenture.
"Disqualified Capital Stock" means any Capital Stock of the Company or a
Restricted Subsidiary which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable at the option of the
holder), 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 the holder thereof, in whole or in part, on or prior to the
maturity date of the Notes, for cash or securities constituting Indebtedness.
Without limiting the foregoing, Disqualified Capital Stock shall be deemed to
include any Preferred Stock of a Restricted Subsidiary. Notwithstanding the
above, Preferred Stock of the Company or any Restricted Subsidiary that is
issued with the benefit of provisions requiring a change of control offer to be
made for such Preferred Stock in the event of a change of control of the Company
or such Restricted Subsidiary, which provisions have substantially the same
effect as the provisions of the Indenture described under "-- Certain
Covenants -- Change of Control Offer," shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions.
"domestic" with respect to any Person, shall mean a Person whose
jurisdiction of incorporation or formation is the United States, any state
thereof or the District of Columbia.
82
<PAGE> 89
"EBITDA" means, with respect to any Person, for any period, an amount equal
to (a) the sum of (i) Consolidated Net Income for such period, plus (ii) the
provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing Consolidated Net Income and
any provision for taxes utilized in computing net loss under clause (i) hereof,
plus (iii) Consolidated Interest Expense for such period, plus (iv) depreciation
for such period on a consolidated basis, plus (v) amortization of intangibles
for such period on a consolidated basis, plus (vi) any other non-cash items
reducing Consolidated Net Income for such period minus (b) all non-cash items
increasing Consolidated Net Income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder.
"fair market value" means, with respect to any asset or property, the price
which could be negotiated in an arm's-length, free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair market value
shall be determined by the Board of Directors of the Company acting reasonably
and in good faith.
"Fixed Charge Coverage Ratio" of any Person means, with respect to any
determination date, the ratio of (i) EBITDA for such Person's last four full
fiscal quarters for which financial statements are available to (ii)
Consolidated Fixed Charges of such Person for such period.
"foreign" with respect to any Person, shall mean a Person whose
jurisdiction of incorporation or formation is other than the United States, any
state thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Guarantor Senior Indebtedness" means, with respect to any Guarantor, the
principal of and premium, if any, and interest (including, without limitation,
interest accruing or that would have accrued but for the filing of a bankruptcy,
reorganization or other insolvency proceeding whether or not such interest
constitutes an allowable claim in such proceeding) on, and any and all other
fees, expense reimbursement obligations and other amounts due pursuant to the
terms of all agreements, documents and instruments providing for, creating,
securing or evidencing or otherwise entered into in connection with, (a) all
Indebtedness and other obligations of such Guarantor under the Credit Facility,
(b) all obligations of such Guarantor with respect to any Interest Rate
Agreement, (c) all obligations of such Guarantor to reimburse any bank or other
Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments, (d) all other Indebtedness of such Guarantor which does not
provide that it is to rank pari passu with or subordinate to the Guarantee of
such Guarantor and (e) all deferrals, renewals, extensions and refundings of,
and amendments, modifications and supplements to, any of the Guarantor Senior
Indebtedness described above. Notwithstanding anything to the contrary in the
foregoing, Guarantor Senior Indebtedness will not include (i) Indebtedness of
such Guarantor to any Restricted Subsidiary, (ii) Indebtedness represented by
the Guarantee of such Guarantor, (iii) any Indebtedness which by the express
terms of the agreement or instrument creating, evidencing or governing the same
is junior or subordinate in right of payment to any item of Guarantor Senior
Indebtedness, (iv) other than obligations referred to in clause (a) above, any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, or (v) Indebtedness (other than
that described in clause (a) above) incurred in violation of the Indenture.
"incur" means, with respect to any Indebtedness 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 Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such Person (and
"incurrence," "incurred," "incurrable" and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the
83
<PAGE> 90
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any Property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included (i) any Capitalized Lease Obligations, (ii) obligations
secured by a Lien to which the property or assets owned or held by such Person
is subject, whether or not the obligation or obligations secured thereby shall
have been assumed (provided, however, that if such obligation or obligations
shall not have been assumed, the amount of such indebtedness shall be deemed to
be the lesser of the principal amount of the obligation or the fair market value
of the pledged property or assets), (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (provided that in the case of
any such letters of credit, the items for which such letters of credit provide
credit support are those of other Persons which would be included within this
definition for such other Persons), (v) Disqualified Capital Stock of such
Person or, in the case of the Company, any Restricted Subsidiary, and (vi)
obligations of any such Person under any Interest Rate Agreement applicable to
any of the foregoing (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP). The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the
maximum liability upon the occurrence of the contingency giving rise to the
obligation, provided (i) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the principal amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business shall not be deemed to
be "Indebtedness" of the Company or any Restricted Subsidiary for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Interest Rate Agreement" means, with respect to any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business or acquired as part of the assets acquired by the Company in connection
with an acquisition of assets which is otherwise permitted by the terms of the
Indenture), loan or capital contribution to (by means of transfers of Property
to others, payments for Property or services for the account or use of others or
otherwise), the purchase of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any Person or the making of any
investment in any Person. Investments shall exclude (i) extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices and (ii) the purchase of securities of any Person by such Person.
"Issue Date" means the date the Old Notes are first issued by the Company
and authenticated by the Trustee under the Indenture.
"Junior Subordinated Debentures" means the 5.5% Convertible Subordinated
Debentures Due 2007 of the Company.
"Lien" means, with respect to any Property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever
84
<PAGE> 91
on or with respect to such Property or assets (including, without limitation,
any Capitalized Lease Obligation, conditional sales or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Net Income" means, with respect to any Person, for any period, the net
income (loss) of such Person determined in accordance with GAAP.
"Net Investment" means the excess of (i) the aggregate amount of all
Investments in Unrestricted Subsidiaries or joint ventures made by the Company
or any Restricted Subsidiary on or after the Issue Date (in the case of an
Investment made other than in cash, the amount shall be the fair market value of
such Investment) over (ii) the sum of (A) the aggregate amount returned in cash
on or with respect to such Investments whether through interest payment,
principal payments, dividends or other distributions and (B) the net cash
proceeds received by the Company or any Restricted Subsidiary from the
disposition of all or any portion of such Investments (other than to a
Restricted Subsidiary of the Company); provided, however, that with respect to
all Investments made in an Unrestricted Subsidiary, the sum of clauses (A) and
(B) above with respect to such Investment shall not exceed the aggregate amount
of all such Investments made in such Unrestricted Subsidiary.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by the
Company, the aggregate net proceeds received by the Company, after payment of
expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in Property (valued at the fair market value
thereof, at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind for or into shares
of Capital Stock of the Company which is not Disqualified Capital Stock, the net
book value of such outstanding securities on the date of such exchange,
exercise, conversion or surrender (plus any additional amount required to be
paid by the holder to the Company upon such exchange, exercise, conversion or
surrender, less any and all payments made to the holders, e.g., on account of
fractional shares and less all expenses incurred by the Company in connection
therewith).
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, any Executive Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, Controller, Secretary or any Vice-President
of the Company or any Subsidiary, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the principal executive officer, principal financial officer,
treasurer or principal accounting officer of the Company.
"Payment Default" means any default, whether or not any requirement for the
giving of notice, the lapse of time or both, or any other condition to such
default becoming an event of default has occurred, in the payment of principal
of (or premium, if any) or interest on or any other amount payable in connection
with Designated Senior Indebtedness.
"Permitted Holders" means (i) Dort A. Cameron III, (ii) Mr. Cameron's
spouse, children or other lineal descendants, the spouses of any of the
foregoing and any probate estate of any such individual and any trust, so long
as one or more of the foregoing individuals are the principal beneficiaries of
such trust and (iii) any Affiliate of any of the foregoing.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary arising
under or in connection with the Credit Facility in an amount not to exceed
the greater of (a) $440.0 million less any mandatory prepayments actually
made thereunder (to the extent, in the case of payments of revolving credit
indebtedness, that the corresponding commitments have been permanently
reduced) or scheduled payments actually made thereunder or (b) the sum of
(x) 85% of consolidated accounts receivable of the Company and the
Restricted Subsidiaries and (y) 75% of consolidated inventory of the
Company and the Restricted Subsidiaries;
85
<PAGE> 92
(ii) Indebtedness under the Notes, the Guarantees and the Exchange
Notes and the guarantees thereof;
(iii) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of the Indenture;
(iv) Indebtedness of the Company to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Company or another
Restricted Subsidiary provided that any Indebtedness of the Company and of
any Guarantor to any foreign Restricted Subsidiary is subordinated,
pursuant to a written agreement, to the Company's or such Guarantor's
obligations under the Indenture and the Notes at least to the same extent
that the Notes and the Guarantees are subordinated to Senior Indebtedness
and Guarantor Senior Indebtedness, respectively;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred by the Company or any Restricted Subsidiary to acquire property in
the ordinary course of business which Purchase Money Indebtedness and
Capitalized Lease Obligations do not in the aggregate exceed $15.0 million
at any time outstanding;
(vi) Interest Rate Agreements;
(vii) additional Indebtedness of the Company and the Restricted
Subsidiaries not to exceed $10.0 million in principal amount outstanding at
any time;
(viii) additional Indebtedness of the Company or any Restricted
Subsidiary from the State of Ohio not to exceed $10.0 million in principal
amount; and
(ix) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on or after
the Issue Date consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary, in the
Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted Subsidiary, in a
Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary;
(iv) reasonable and customary loans made to employees in connection
with their relocation;
(v) an Investment that is made by the Company or a Restricted
Subsidiary in the form of any stock, bonds, notes, debentures, partnership
or joint venture interests or other securities that are issued by a third
party to the Company or such Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under the covenant described under "-- Certain
Covenants -- Limitation or Certain Asset Sales"; and
(vi) other Investments that do not exceed $15.0 million at any time
outstanding (which amount, in the case of Investments made under this
clause (vi) in Unrestricted Subsidiaries and joint ventures, shall be
determined based on the Net Investment in such Unrestricted Subsidiaries
and joint ventures).
"Permitted Junior Securities" means debt or equity securities of the
Company or any Guarantor, as the case may be, or any successor corporation
provided for by a plan of reorganization or readjustment that are subordinated
to the Notes or the Guarantee of such Guarantor, as the case may be, to the same
extent that the Notes and the Guarantees are subordinated to the payment of all
Senior Indebtedness or Guarantor Senior Indebtedness of such Guarantor, as the
case may be.
"Permitted Liens" means (i) Liens on Property or assets of, or any shares
of stock of or secured debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary of the Company or at
86
<PAGE> 93
the time such corporation is merged into the Company or any Restricted
Subsidiary; provided that such Liens are not incurred in connection with, or in
contemplation of, such corporation becoming a Restricted Subsidiary of the
Company or merging into the Company or any Restricted Subsidiary, (ii) Liens
securing Refinancing Indebtedness; provided that any such Lien on subordinated
Indebtedness does not extend to or cover any Property, shares or debt other than
the Property, shares or debt securing the Indebtedness so refunded, refinanced
or extended, (iii) Liens in favor of the Company or any Restricted Subsidiary,
(iv) Liens securing industrial revenue bonds, (v) Liens to secure Purchase Money
Indebtedness that is otherwise permitted under the Indenture, provided that (a)
any such Lien is created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
sales and excise taxes, installation and delivery charges and other direct costs
of, and other direct expenses paid or charged in connection with, such purchase
or construction) of such Property and (b) such Lien does not extend to or cover
any Property other than such item of Property and any improvements on such item,
(vi) statutory liens or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which do not secure any Indebtedness and with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor, (vii)
other Liens securing obligations incurred in the ordinary course of business
which obligations do not exceed $10.0 million in the aggregate at any one time
outstanding, (viii) Liens securing Interest Rate Agreements, (ix) Liens securing
reimbursement obligations with respect to letters of credit that encumber
documents and other Property, relating to such letters of credit and the
products and proceeds thereof, (x) any extensions, substitutions, replacements
or renewals of the foregoing, (xi) Liens for taxes, assessments or governmental
charges that are being contested in good faith by appropriate proceedings, (xii)
Liens under the Credit Facility and (xiii) Liens securing Capital Lease
Obligations permitted to be incurred under clause (v) of the definition of
"Permitted Indebtedness," provided that such Lien does not extend to any
Property other than that subject to the underlying lease.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however designated,
which entities the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such Person over the holders of other
Capital Stock issued by such Person.
"Product Business" means the procurement of PC hardware, software and
peripherals and related services.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Public Equity Offering" means any underwritten public offering by the
Company of shares of its common stock (however designated and whether voting or
non-voting) and any and all rights, warrants or options to acquire such common
stock pursuant to an effective registration statement filed with the Commission
in accordance with the Securities Act.
"Purchase Money Indebtedness" means any Indebtedness incurred by a Person
to finance the cost (including the cost of construction) of an item of Property,
the principal amount of which Indebtedness does not exceed the sum of (i) 100%
of such cost and (ii) reasonable fees and expenses of such Person incurred in
connection therewith.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Company outstanding on the Issue Date or other
Indebtedness permitted to be incurred by the Company or the Restricted
Subsidiaries pursuant to the terms of the Indenture, but only to the extent that
(i) the Refinancing Indebtedness is subordinated to the Notes to at least the
same extent as the Indebtedness being refunded, refinanced or extended, if at
all, (b) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended, or (b)
after the maturity date of
87
<PAGE> 94
the Notes, (iii) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Notes has a weighted
average life to maturity at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the weighted average life to maturity of the
portion of the Indebtedness being refunded, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the Notes, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to or
less than the sum of (a) the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended, plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Indebtedness
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 and (c) the amount of customary fees, expenses and costs
related to the incurrence of such Refinancing Indebtedness, and (v) such
Refinancing Indebtedness is incurred by the same Person that initially incurred
the Indebtedness being refunded, refinanced or extended, except that the Company
or a Guarantor may incur Refinancing Indebtedness to refund, refinance or extend
Indebtedness of any Restricted Subsidiary of the Company.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
the Company or any Restricted Subsidiary or any payment made to the direct or
indirect holders (in their capacities as such) of Capital Stock of the Company
or any Restricted Subsidiary of the Company (other than (x) dividends or
distributions payable solely in Capital Stock (other than Disqualified Capital
Stock), and (y) in the case of Restricted Subsidiaries, dividends or
distributions payable to the Company or to a Wholly Owned Subsidiary of the
Company); (ii) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company or any Restricted Subsidiary (other
than Capital Stock owned by the Company or a Wholly Owned Subsidiary of the
Company); (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is subordinated in right of payment to the
Notes other than subordinated Indebtedness acquired in anticipation of
satisfying a scheduled sinking fund obligation, principal installment or final
maturity (in each case due within one year of the date of acquisition); (iv) the
making of any Investment in any Person other than a Permitted Investment; and
(v) forgiveness of any Indebtedness of an Affiliate of the Company to the
Company or a Restricted Subsidiary; provided, however, that the term "Restricted
Payment" does not include the declaration or payment of any dividend or any
other distribution or payment on Capital Stock of any Restricted Subsidiary
provided such dividends or other distributions or payments are made to the
Company (or a Restricted Subsidiary) on a pro rata basis (and in like form) to
all dividends or other distributions or payments so made to all other
shareholders thereof, to the extent the Company or a Restricted Subsidiary owns
shares of such series of Capital Stock. For purposes of determining the amount
expended for Restricted Payments, cash distributed or invested shall be valued
at the face amount thereof and Property other than cash shall be valued at its
fair market value.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"-- Limitation on Additional Indebtedness" covenant.
"Senior Indebtedness" means the principal of and premium, if any, and
interest (including, without limitation, interest accruing or that would have
accrued but for the filing of a bankruptcy, reorganization or other insolvency
proceeding whether or not such interest constitutes an allowable claim in such
proceeding) on, and any and all other fees, expense reimbursement obligations
and other amounts due pursuant to the terms of all agreements, documents and
instruments providing for, creating, securing or evidencing or otherwise entered
into in connection with (a) all Indebtedness and other obligations of the
Company owed to
88
<PAGE> 95
lenders under the Credit Facility, (b) all obligations of the Company with
respect to any Interest Rate Agreement, (c) all obligations of the Company to
reimburse any bank or other Person in respect of amounts paid under letters of
credit, acceptances or other similar instruments, (d) all other Indebtedness of
the Company which does not provide that it is to rank pari passu with or
subordinate to the Notes and (e) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any of the
Senior Indebtedness described above. Notwithstanding anything to the contrary in
the foregoing, Senior Indebtedness will not include (i) Indebtedness of the
Company to any Restricted Subsidiary, (ii) Indebtedness represented by the
Notes, (iii) any Indebtedness which by the express terms of the agreement or
instrument creating, evidencing or governing the same is junior or subordinate
in right of payment to any item of Senior Indebtedness, (iv) other than
obligations referred to in clause (a) above, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business, or (v) Indebtedness (other than that described in clause (a) above)
incurred in violation of the Indenture.
"Significant Subsidiary" means any Restricted Subsidiary which would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act and the Exchange Act, as in effect on the Issue
Date.
"Subsidiary" of any specified Person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named Person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such first-named Person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or of any
governmental agency or political subdivision thereof, maturing within 365 days
of the date of purchase, (ii) Investments in United States dollar denominated
time deposits and United States dollar denominated certificates of deposit
(including Eurodollar time deposits and certificates of deposit) maturing within
365 days of the date of purchase thereof issued by any United States or Canadian
national, provincial or state (including the District of Columbia) banking
institution having capital, surplus and undivided profits aggregating at least
$250,000,000, or by any British, French, German, Japanese or Swiss national
banking institution having capital, surplus and undivided profits aggregating at
least $1,000,000,000, in each case that is (a) rated at least "A" by Standard &
Poor's Corporation or at least "A-2" by Moody's Investors Service Inc., or (b)
that is a party to the Credit Facility, (iii) Investments in commercial paper
maturing within 270 days after the issuance thereof that has the highest credit
rating of either of such rating agencies, (iv) Investments in readily marketable
direct obligations issued by any state of the United States of America or any
political subdivision thereof having the highest rating obtainable from either
of such rating agencies, (v) Investments in tax exempted and tax advantaged
instruments including, without limitation, municipal bonds, commercial paper,
auction rate preferred stock and variable rate demand obligations with the
highest short-term ratings by either of such rating agencies or a long-term debt
rating of AAA from Standard & Poor's Corporation, (vi) Investments in repurchase
agreements and reverse repurchase agreements with institutions described in
clause (ii) above that are fully secured by obligations described in clause (i)
above and (vii) Investments not exceeding 365 days in duration in money market
funds that invest substantially all of such funds' assets in the Investments
described in the preceding clauses (i) through (v).
"Triggering Default Event" means a Default or Event of Default described in
clauses (i), (ii), (iv), (v) or (vi) under the captions "-- Events of Default"
or any breach or violation under the covenants entitled "Merger, Consolidation
or Sale of Assets," "Limitation on Additional Indebtedness," "Limitation on
Restricted Payments," "Limitation on Other Senior Subordinated Debt,"
"Limitations on Liens," "Dividend and Other Payment Restrictions Affecting
Subsidiaries," "Limitation on Transactions with Affiliates,"
89
<PAGE> 96
"Limitation on Certain Asset Sales," "Limitation on Capital Stock of Restricted
Subsidiaries," "Payments for Consent" or "Change of Control Offer."
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors of the Company; provided that a Subsidiary organized or acquired after
the Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with the covenant set forth under "-- Limitation
on Restricted Payments." The Trustee shall be given prompt notice by the Company
of each resolution adopted by the Board of Directors of the Company under this
provision, together with a copy of each such resolution adopted.
"Wholly Owned Subsidiary" means any Restricted Subsidiary all of the
outstanding Capital Stock (other than directors' qualifying shares) of which is
owned, directly or indirectly, by the Company.
90
<PAGE> 97
BOOK-ENTRY; DELIVERY AND FORM
The Old Notes were offered and sold to "qualified institutional buyers" (as
defined in Rule 144A under the Securities Act) ("QIBS") in reliance on Rule 144A
under the Securities Act ("Rule 144A Notes"). Old Notes were also be offered and
sold in offshore transactions in reliance on Regulation S under the Securities
Act ("Regulation S Notes").
Rule 144A Notes were initially represented by one or more notes in
registered, global form without interest coupons (collectively, the "Rule 144A
Global Note"). The Rule 144A Global Note was deposited upon issuance with the
Trustee as custodian for The Depository Trust Company ("DTC"), in New York, New
York, and registered in the name of DTC or its nominee, in each case for credit
to an account of a direct or indirect participant as described below. Regulation
S Notes were initially represented by one or more notes in registered, global
form without interest coupons (collectively, the "Regulation S Global Note,"
and, together with the Rule 144A Global Note, the "Global Old Notes"). The
Regulation S Global Note was deposited upon issuance with the Trustee as
custodian for DTC, and registered in the name of a nominee of DTC, in each case
for credit to the accounts of Euroclear System ("Euroclear") and Cedel Bank,
S.A. ("CEDEL"). Except for New Notes issued in certificated form, the New Notes
will be represented by one or more notes in registered, global form without
interest coupons (collectively, the "Global New Note" and, together with the
Global Old Notes, the "Global Notes"). The Global New Note will be deposited
upon issuance with the Trustee as custodian for DTC, and registered in the name
of DTC or its nominee, in each case for credit to an account of a direct or
indirect participant.
Except as set forth below, the Global New Note may be transferred, in whole
but not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global New Note may not be exchanged for
New Notes in certificated form except in the limited circumstances described
below. See "-- Exchange of the Global New Note for Certificated New Notes."
The New Notes may be presented for registration of transfer and exchange at
the offices of the Registrar (as defined in the Indenture).
DEPOSITORY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between the Participants through electronic
book-entry changes in accounts of the Participants. The Participants include
securities brokers and dealers (including the Initial Purchasers), banks, trust
companies, clearing corporations and certain other organizations. Access to
DTC's system is also available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship with
a Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own securities
held by or on behalf of DTC only through the Participants or the Indirect
Participants. The ownership interest and transfer of ownership interest of each
actual purchaser of each security held by or on behalf of DTC are recorded on
the records of the Participants and the Indirect Participants.
DTC has also advised the Company that pursuant to procedures established by
it, (i) upon deposit of the Global New Note, DTC will credit the accounts of
exchanging Participants with portions of the principal amount of the Global New
Note and (ii) ownership of such interests in the Global New Note will be shown
on, and the transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants and
the Indirect Participants (with respect to other owners of beneficial interests
in the Global New Note).
Investors in the Global New Note may hold their interests therein directly
through DTC, if they are Participants in such system, or indirectly through
organizations which are Participants in such system.
The laws of some states require that certain persons take physical delivery
in definitive form of securities that they own. Consequently, the ability to
transfer beneficial interests in the Global New Note to such persons may be
limited to that extent. Because DTC can act only on behalf of the Participants,
which in turn
91
<PAGE> 98
act on behalf of the Indirect Participants and certain banks, the ability of a
person having beneficial interests in the Global New Note to pledge such
interests to persons or entities that do not participate in the DTC system, or
otherwise take actions in respect of such interests, may be affected by the lack
of a physical certificate evidencing such interests. For certain other
restrictions on the transferability of the New Notes, see "-- Exchange of the
Global New Note for Certificated New Notes."
EXCEPT AS DESCRIBED HEREIN, OWNERS OF INTERESTS IN THE GLOBAL NEW NOTE WILL
NOT HAVE NEW NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY
OF NEW NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED
OWNERS OR HOLDERS THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of (and premium, if any) and interest
on the Global New Note registered in the name of DTC or its nominee will be
payable to DTC or its nominee in its capacity as the registered holder under the
Indenture. Under the terms of the Indenture, the Company and the Trustee will
treat the persons in whose names the New Notes, including the Global New Note,
are registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, none of the
Company, the Initial Purchasers, the Trustee nor any agent of the Company, the
Initial Purchasers or the Trustee has or will have any responsibility or
liability for (i) any aspect or accuracy of DTC's records or any Participant's
or Indirect Participant's records relating to or payments made on account of
beneficial ownership interests in the Global New Note, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global New Note, or (ii) any other matter relating to the actions and practices
of DTC or any of the Participants or the Indirect Participants.
DTC has advised the Company that its current practice, upon receipt of any
payment in respect of securities such as the New Notes (including principal and
interest), is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in principal amount of beneficial interests in the relevant security as
shown on the records of DTC. Payments by the Participants and the Indirect
Participants to the beneficial owners of New Notes will be governed by standing
instructions and customary practices and will not be the responsibility of DTC,
the Trustee or the Company. Neither the Company nor the Trustee will be liable
for any delay by DTC or any of the Participants in identifying the beneficial
owners of the New Notes, and the Company and the Trustee may conclusively rely
on and will be protected in relying on instructions from DTC or its nominee as
the registered owner of the Global New Note for all purposes.
Interests in the Global New Note will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and the Participants. Transfers between Participants
in DTC will be effected in accordance with DTC's procedures and will be settled
in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of New Notes only at the direction of one or more Participants
to whose account with DTC interests in the Global New Note are credited and only
in respect of such portion of the aggregate principal amount of the New Notes as
to which such Participant or Participants has or have given such direction.
However, if any of the events described under "-- Exchange of Global New Note
for Certificated New Notes" occurs, DTC reserves the right to exchange the
Global New Note for New Notes in certificated form and to distribute such New
Notes to its Participants.
The information in this section concerning DTC and its book-entry systems
has been obtained from sources that the Company believes to be reliable, but the
Company takes no responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global New Note among accountholders in DTC, it is under no
obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. None of the Company or the Trustee
nor any agent of the Company or the Trustee will have any responsibility for the
performance by DTC or its
92
<PAGE> 99
participants, indirect participants or accountholders of their respective
obligations under the rules and procedures governing their operations.
EXCHANGE OF THE GLOBAL NEW NOTE FOR CERTIFICATED NEW NOTES
New Notes issued or transferred to institutional "accredited investors"
within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act who are not QIBs will be issued in registered certificated form.
In addition, the Global New Note is exchangeable for definitive New Notes in
registered certificated form if (i) DTC (x) notifies the Company that it is
unwilling or unable to continue as depository for the Global New Note and the
Company thereupon fails to appoint a successor depository or (y) has ceased to
be a clearing agency registered under the Exchange Act, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
the New Notes in certificated form or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, certificated New Notes delivered in exchange for the Global New Note or
beneficial interests therein will be registered in the names, and issued in any
approved denominations, requested by or on behalf of DTC (in accordance with its
customary procedures).
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material United States federal income
tax consequences generally applicable to (i) the exchange of Old Notes for New
Notes and (ii) the ownership and disposition of the New Notes. The federal
income tax considerations set forth below are based upon currently existing
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
applicable Treasury Regulations ("Treasury Regulations"), judicial authority,
and current administrative rulings and pronouncements of the Internal Revenue
Service (the "IRS"). There can be no assurance that the IRS will not take a
contrary view, and no ruling from the IRS has been, or will be, sought on the
issues discussed herein. Legislative, judicial, or administrative changes or
interpretations may be forthcoming that could alter or modify the statements and
conclusions set forth herein. Any such changes or interpretations may or may not
be retroactive and could affect the tax consequences discussed below. The
summary is not a complete analysis or description of all potential federal tax
considerations that may be relevant to, or of the actual tax effect that any of
the matters described herein will have on, particular holders, and does not
address state, local or other tax consequences. This summary does not address
the federal income tax consequences to (a) special classes of taxpayers (such as
S corporations, mutual funds, insurance companies, financial institutions, small
business investment companies, foreign companies, nonresident alien individuals,
regulated investment companies, real estate investment trusts, dealers in
securities or currencies, broker-dealers and tax-exempt organizations) who are
subject to special treatment under the federal income tax laws, (b) Holders that
hold Notes as part of a position in a "straddle," or as part of a "hedging,"
"conversion," or other integrated investment transaction for federal income tax
purposes, (c) Holders that do not hold the Notes as capital assets within the
meaning of section 1221 of the Code or (d) Holders whose functional currency is
not the U.S. dollar. Furthermore, estate and gift tax consequences are not
discussed herein.
As used herein, the term "U.S. Holder" means a beneficial owner of a New
Note that is for United States federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or of any
political subdivision thereof, (iii) an estate the income of which is subject to
federal income tax regardless of source, or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more U.S. persons that have the authority to control all
substantial decisions of the trust. As used herein, the term "Non-U.S. Holder"
means a beneficial owner of a New Note that is not a U.S. Holder.
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH PERSON CONSIDERING
EXCHANGING OLD NOTES FOR NEW NOTES IS STRONGLY URGED TO CONSULT HIS OR HER OWN
TAX ADVISOR WITH RESPECT TO HIS OR HER PARTICULAR TAX SITUATION AND AS TO ANY
FEDERAL, FOREIGN, STATE, LOCAL OR OTHER TAX CONSIDERATIONS (INCLUDING ANY
POSSIBLE CHANGES IN TAX LAW) AFFECTING THE PURCHASE, HOLDING AND DISPOSITION OF
THE NOTES.
93
<PAGE> 100
FEDERAL INCOME TAX CONSEQUENCES OF TENDERING OLD NOTES FOR NEW NOTES
Exchange Offer. The exchange of Old Notes for New Notes pursuant to the
Exchange Offer should not be treated as an exchange or other taxable event for
United States federal income tax purposes because under Treasury regulations,
the New Notes should not be considered to differ materially in kind or extent
from the Old Notes. Rather, the New Notes received by a holder should be treated
as a continuation of the Old Notes in the hands of such holder. As a result,
there should be no United States federal income tax consequences to holders who
exchange Old Notes for New Notes pursuant to the Exchange Offer and any such
holder should have the same tax basis and holding period in the New Notes as it
had in the Old Notes immediately before the exchange.
FEDERAL INCOME TAX CONSEQUENCES OF OWNING NEW NOTES
U.S. Holders
Payment of Interest. The Old Notes were not issued with original issue
discount. As a result, payments of interest on a New Note generally will be
taxable to a U.S. Holder as ordinary interest income at the time such payments
are accrued or are received, in accordance with the U.S. Holder's regular method
of tax accounting.
Market Discount. A Note will be considered to bear "market discount" if
the U.S. Holder's tax basis for the Note is less than the principal amount of
the Note by more than a de minimis amount.
Under the market discount rules, a U.S. Holder will be required to treat
any partial principal payment on, or any gain realized on the sale, exchange,
retirement or other disposition of, a Note as ordinary income to the extent of
the lesser of (i) the amount of such payment or realized gain or (ii) the market
discount which has not previously been included in income and is treated as
having accrued on such New Note at the time of such payment or disposition.
Market discount will be considered to accrue on a straight-line basis during the
period from the date of acquisition to the maturity date of the Note, unless the
U.S. Holder elects to accrue market discount on the basis of semiannual
compounding.
A U.S. Holder may be required to defer the deduction of all or a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a New Note with market discount until the maturity of the New
Note or certain earlier dispositions. A U.S. Holder may elect to include market
discount in income currently as it accrues, in which case the rules described
above regarding the treatment as ordinary income of gain upon the disposition of
the Note and upon the receipt of certain cash payments and regarding the
deferral of interest deductions will not apply. Persons considering making this
election should consult their tax advisors.
Premium. If a U.S. Holder's initial tax basis in any Note is greater than
the principal amount of the Note, the Note will be considered to have
"amortizable bond premium" equal in amount to such excess. A U.S. Holder may
elect to amortize such premium using a constant yield method over the remaining
term of the New Note and may offset interest otherwise required to be included
in respect of the New Note during any taxable year by the amortized amount of
such excess for the taxable year. Any election to amortize bond premium applies
to all taxable debt instruments acquired by the U.S. Holder on or after the
first day of the first taxable year to which such election applies and may be
revoked only with the consent of the IRS.
Disposition of a Note. Except as discussed above, upon the sale, exchange
or retirement of a New Note, a U.S. Holder generally will recognize taxable gain
or loss equal to the difference between the amount realized on the sale,
exchange or retirement (other than amounts representing accrued and unpaid
interest) and such U.S. Holder's adjusted tax basis in the New Note. A U.S.
Holder's adjusted tax basis in a New Note generally will equal such U.S.
Holder's initial investment in the Note increased by any accrued market discount
that the U.S. Holder has included in income and decreased by the amount of any
amortizable bond premium taken with respect to such Note. Such gain or loss
generally will be long-term capital gain or loss if the Note has been held for
more than one year.
94
<PAGE> 101
Non-U.S. Holders
Interest. Subject to the discussion of backup withholding below, a
Non-U.S. Holder will generally not be subject to U.S. federal income or
withholding tax on payments of principal, premium, if any, and interest on a New
Note under the portfolio interest exemption of the Code, provided that (in the
case of interest): (i) the Non-U.S. Holder does not actually or constructively
own 10% or more of the total combined voting power of all classes of stock of
Holdings entitled to vote; (ii) the Non-U.S. Holder is not a controlled foreign
corporation that is related to the Company through stock ownership; (iii) such
interest is not effectively connected with a United States trade or business of
the Non-U.S. Holder; (iv) generally either (a) the beneficial owner of the Notes
certifies to Holdings or its agent, under penalties of perjury, that it is a
Non-U.S. Holder and provides a completed IRS Form W-8 ("Certificate of Foreign
Status") or (b) a securities clearing organization, bank or other financial
institution which holds customers' securities in the ordinary course of its
trade or business (a "financial institution") and which holds the New Notes,
certifies to Holdings or its agent, under penalties of perjury, that it has
received Form W-8 from the beneficial owner or that it has received from another
financial institution a Form W-8 and furnishes the payor with a copy thereof;
and (v) for payments made on or after January 1, 2000, the payment can be
reliably associated (within the meaning of applicable Treasury Regulations) with
IRS Form W-8. If any of the situations described in proviso (i), (ii) or (iv) of
the preceding sentence do not exist, interest on the New Notes when received is
subject to United States withholding tax at the rate of 30% unless an income tax
treaty between the United States and the country of which the Non-U.S. Holder is
a tax resident provides for the elimination or reduction in the rate of U.S.
federal withholding tax.
If a Non-U.S. Holder of a New Note is engaged in a trade or business in the
United States and interest on the Note is effectively connected with the conduct
of such trade or business, such Non-U.S. Holder, although exempt from U.S.
federal withholding tax by reason of the delivery of a properly completed Form
4224, will be subject to U.S. federal income tax on such interest (including
OID) and on any gain realized on the sale, exchange or other disposition of a
New Note in the same manner as if it were a U.S. Holder. In addition, if such
Non-U.S. Holder is a foreign corporation, it may be subject to a branch profits
tax equal to 30% of its effectively connected earnings and profits for that
taxable year, unless it qualifies for a lower rate under an applicable income
tax treaty.
Sale, Retirement and Other Disposition of New Notes. A Non-U.S. Holder
generally will not be subject to U.S. federal income tax on any gain realized in
connection with the sale, exchange, retirement or other disposition of a New
Note (other than gain attributable to accrued interest, which is addressed in
the preceding paragraph), unless: (i) the gain is effectively connected with a
trade or business carried on by the Non-U.S. Holder within the United States;
(ii) if a tax treaty applies, the gain is attributable to an office or other
fixed place of business maintained in the United States by the Non-U.S. Holder;
or (iii) in the case of an individual Non-U.S. Holder, (a) such holder is
present in the United States for 183 days or more in the taxable year of
disposition and certain other conditions are satisfied, or (b) the Non-U.S.
Holder is subject to tax pursuant to provisions of the Code applicable to United
States expatriates.
INFORMATION REPORTING AND BACKUP WITHHOLDING
In general, under current U.S. federal tax law, payments to a U.S. Holder
of (a) principal, premium (if any) and interest on a New Note, and (b) the
proceeds of sale or other disposition of a New Note before maturity will be
subject to U.S. information reporting requirements. Subject to certain
exceptions, such payments will also generally be subject to "backup" withholding
tax at a rate of 31% if such U.S. Holder fails to supply a correct taxpayer
identification number and certain other information in the required manner. U.S.
Holders should consult their own tax advisors regarding their qualification for
exemption from backup withholding and the procedure for obtaining such an
exemption if applicable.
In general, there is no U.S. information reporting requirement or backup
withholding tax on payments to Non-U.S. Holders who provide the appropriate
certification described above regarding qualification for the portfolio interest
exemption from U.S. federal income tax for payments of principal or interest on
the New Notes.
95
<PAGE> 102
Payment by the Company of principal on the New Notes or payment by a United
States office of a broker of the proceeds of a sale of a New Note is subject to
both backup withholding and information reporting unless the beneficial owner
provides a completed IRS Form W-8 which certifies under penalties of perjury
that such owner is a Non-U.S. Holder who meets all the requirements for
exemption from U.S. federal income tax on any gain from the sale, exchange or
retirement of a New Note.
In general, backup withholding and information reporting will not apply to
a payment of the gross proceeds of a sale of a New Note effected at a foreign
office of a broker. If, however, such broker is, for U.S. federal income tax
purposes, a U.S. person, a controlled foreign corporation or a foreign person
50% or more of whose gross income for certain periods is derived from activities
that are effectively connected with the conduct of a trade or business in the
United States, such payments will not be subject to backup withholding, but will
be subject to information reporting unless (i) such broker has documentary
evidence in its records that the beneficial owner is a Non-U.S. Holder and
certain other conditions are met, or (ii) the beneficial owner otherwise
establishes an exemption, provided such broker does not have actual knowledge
that the payee is a United States person. Non-U.S. Holders should consult their
tax advisors regarding the application of these rules to their particular
situations, the availability of an exemption therefrom and the procedure for
obtaining such an exemption, if available.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules will be allowed as a refund or a credit against such
holder's U.S. federal income tax liability, provided the required information is
furnished to the IRS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business on the 180th day
following the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or at negotiated prices. 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 New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such New Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit of any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. By acceptance of the
Exchange Offer, each broker-dealer that receives New Notes pursuant to the
Exchange Offer hereby agrees to notify the Company prior to using this
Prospectus in connection with the sale or transfer of New Notes, and
acknowledges and agrees that, upon receipt of notice from the Company of the
happening of any event which makes any statement in this Prospectus untrue in
any material respect or which requires the making of any changes in this
Prospectus in order to make the statements herein not misleading (which notice
the Company agrees to deliver promptly to such broker-dealer), such
broker-dealer will suspend use of this Prospectus until the Company has amended
96
<PAGE> 103
or supplemented the Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented prospectus to such
broker-dealer.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement thereto to any broker-dealer that requests such documents in the
Letter of Transmittal. The Company has agreed to pay all expenses incident to
the Exchange Offer (including the expenses of any one special counsel for the
holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes participating in the
Exchange Offer (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the New Notes will be passed upon for
the Company by Cahill Gordon & Reindel (a partnership including a professional
corporation).
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
appearing in this Prospectus have been audited by KPMG Peat Marwick LLP,
independent certified public accountants, to the extent and for the periods
indicated in their report thereon. Such consolidated financial statements have
been included in reliance upon the report of KPMG Peat Marwick LLP, appearing
elsewhere herein, given upon their authority as experts in accounting and
auditing.
97
<PAGE> 104
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Independent Auditors' Report................................ F-2
Consolidated Balance Sheets as of June 28, 1998 and June 29,
1997...................................................... F-3
Consolidated Statements of Operations for Years Ended June
28, 1998, June 29, 1997 and June 30, 1996................. F-4
Consolidated Statements of Cash Flows for Years Ended June
28, 1998, June 29, 1997 and June 30, 1996................. F-5
Consolidated Statements of Stockholders' Equity (Deficit)
for Years Ended June 28, 1998, June 29, 1997 and June 30,
1996...................................................... F-6
Notes to Consolidated Financial Statements.................. F-7
</TABLE>
F-1
<PAGE> 105
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
ENTEX Information Services, Inc.:
We have audited the consolidated balance sheets of ENTEX Information
Services, Inc. and subsidiaries as of June 28, 1998 and June 29, 1997 and the
related consolidated statements of operations, cash flows and stockholders'
equity (deficit) for each of the years in the three-year period ended June 28,
1998. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express our opinion on these
consolidated financial statements based on our audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of ENTEX
Information Services, Inc. and subsidiaries as of June 28, 1998 and June 29,
1997, and the results of their operations and their cash flows for each of the
years in the three-year period ended June 28, 1998, in conformity with generally
accepted accounting principles.
KPMG Peat Marwick LLP
Stamford, Connecticut
August 21, 1998
F-2
<PAGE> 106
ENTEX INFORMATION SERVICES, INC.
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash...................................................... $ 14,265 $ 15,838
Trade receivables, net of allowance for doubtful accounts
of $4,662 and $4,746, respectively..................... 368,344 334,196
Vendor receivables, net of allowance of $3,787 and $2,000,
respectively........................................... 47,592 37,789
Inventories............................................... 192,841 183,957
Other current assets...................................... 8,683 9,228
-------- --------
Total current assets...................................... 631,725 581,008
Property, plant and equipment, net........................ 61,009 55,049
Goodwill, net of accumulated amortization of $12,861 and
$8,903, respectively................................... 41,929 45,887
Other assets, net......................................... 1,756 1,646
-------- --------
Total assets...................................... $736,419 $683,590
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable.......................................... $338,602 $269,962
Accrued liabilities....................................... 67,381 53,598
Notes payable and current installments of long-term
debt................................................... 295,681 348,276
-------- --------
Total current liabilities................................. 701,664 671,836
-------- --------
Long-term debt............................................ 53,239 48,215
Other long-term liabilities............................... 661 1,271
-------- --------
Total long-term liabilities............................ 53,900 49,486
-------- --------
Total liabilities................................. 755,564 721,322
-------- --------
Stockholders' equity (deficit):
Preferred stock, 2,000,000 shares authorized; no shares
issued or outstanding..................................... -- --
Common stock, $.0001 par value; 100,000,000 shares
authorized, 32,413,366 and 32,357,840 shares issued,
respectively.............................................. 3 3
Additional paid-in capital.................................. 19,477 19,003
Retained earnings (deficit)................................. (38,564) (56,707)
Treasury stock, 82,500 shares at cost....................... (2) (2)
Cumulative translation adjustments.......................... (59) (29)
-------- --------
Total stockholders' equity (deficit).............. (19,145) (37,732)
-------- --------
$736,419 $683,590
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 107
ENTEX INFORMATION SERVICES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED
------------------------------------------
JUNE 28, JUNE 29, JUNE 30,
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
Net revenues:
Product revenues................................. $2,006,161 $2,126,973 $1,940,796
Service revenues................................. 450,471 353,624 207,511
---------- ---------- ----------
Total net revenues....................... 2,456,632 2,480,597 2,148,307
---------- ---------- ----------
Cost of revenues:
Cost of products sold............................ 1,800,085 1,922,826 1,764,775
Cost of services provided........................ 341,612 267,554 168,957
---------- ---------- ----------
Cost of revenues.............................. 2,141,697 2,190,380 1,933,732
---------- ---------- ----------
Product gross margin............................... 206,076 204,147 176,021
Services gross margin.............................. 108,859 86,070 38,554
---------- ---------- ----------
Total gross margin............................... 314,935 290,217 214,575
Selling, general and administrative expenses....... 259,712 251,963 192,312
Nonrecurring stock compensation costs.............. -- -- 18,185
---------- ---------- ----------
Income from operations........................... 55,223 38,254 4,078
Interest expense, net.............................. 36,663 37,147 29,726
Other income....................................... -- 462 --
---------- ---------- ----------
Income (loss) before income taxes................ 18,560 1,569 (25,648)
Provision for income taxes......................... 417 25 28
---------- ---------- ----------
Net income (loss)................................ $ 18,143 $ 1,544 $ (25,676)
========== ========== ==========
Common Share Data:
Basic earnings (loss) per share.................. $ .56 $ .05 $ (.82)
========== ========== ==========
Diluted earnings (loss) per share................ $ .53 $ .05 $ (.82)
========== ========== ==========
Basic weighted average number of shares of common
stock outstanding................................ 32,357,968 32,281,463 31,348,340
Common equivalent shares from stock options and
warrants using the treasury stock method...... 1,911,178 1,290,697 --
---------- ---------- ----------
Diluted weighted average number of shares of
common stock outstanding...................... 34,269,146 33,572,160 31,348,340
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 108
ENTEX INFORMATION SERVICES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED
----------------------------------
JUNE 28, JUNE 29, JUNE 30,
1998 1997 1996
--------- --------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................... $ 18,143 $ 1,544 $(25,676)
Adjustments to reconcile net income (loss) to net cash
used in operating activities:
Stock compensation costs................................ -- -- 16,185
Depreciation and amortization........................... 19,388 14,146 10,628
Amortization of goodwill................................ 3,958 4,239 3,012
Provision for doubtful trade and vendor receivables..... 1,703 2,393 2,245
Accretion on long-term debentures and notes............. 2,416 2,032 1,996
Gain on sale of assets.................................. -- (504) --
Stock benefit plan compensation costs................... 180 -- --
Other................................................... (593) 20 404
Changes in working capital, net of effects of acquisitions:
Trade receivables......................................... (34,064) (31,168) (66,645)
Inventories............................................... (8,884) (8,161) (24,141)
Vendor receivables........................................ (11,590) (18,219) (11,463)
Other current assets...................................... 305 (396) 1,710
Accounts payable and accrued liabilities.................. 64,260 8,635 17,371
Other long-term liabilities............................... (413) (661) (296)
--------- --------- --------
Net cash provided by (used in) operating Activities..... 54,809 (26,100) (74,670)
--------- --------- --------
Cash flows from investing activities:
Sale of assets, net of expenses........................... -- 2,285 8,483
Capital expenditures...................................... (19,655) (21,737) (19,205)
Cash paid for acquisitions................................ -- (7,216) (21,970)
Other..................................................... -- (1,181) (395)
--------- --------- --------
Net cash used in investing activities................... (19,655) (27,849) (33,087)
--------- --------- --------
Cash flows from financing activities:
Proceeds from borrowing................................... 124,794 230,621 112,050
Change in cash overdraft.................................. 12,968 (13,687) 11,176
Proceeds from long-term debt.............................. -- -- 28,103
Issuance of common stock warrants......................... -- -- 897
Proceeds from sale of common stock, net................... 294 268 385
Payments on debt.......................................... (174,783) (160,018) (44,332)
--------- --------- --------
Net cash (used in) provided from financing activities..... (36,727) 57,184 108,279
--------- --------- --------
Increase (decrease) in cash................................. (1,573) 3,235 522
Cash at beginning of period................................. 15,838 12,603 12,081
--------- --------- --------
Cash at end of period....................................... $ 14,265 $ 15,838 $ 12,603
========= ========= ========
Supplemental disclosure of cash flow information:
Cash paid during the year for:
Interest paid............................................. $ 34,399 $ 36,458 $ 28,081
========= ========= ========
Taxes paid/(refunded)..................................... $ (35) $ (12,087) $ 11,701
========= ========= ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 109
ENTEX INFORMATION SERVICES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL RETAINED CUMULATIVE
--------------- PAID IN DEFERRED EARNINGS TREASURY TRANSLATION
SHARES AMOUNT CAPITAL COMPENSATION (DEFICIT) STOCK ADJUSTMENTS TOTAL
------ ------ ---------- ------------ --------- -------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, July 2, 1995.......... 31,335 $3 $ 1,272 $ -- $(32,575) $(5) $ -- $(31,305)
Purchase of treasury stock... -- -- -- -- -- (7) -- (7)
Issuance of common stock
under stock purchase
arrangements............... 80 -- 381 -- -- 10 -- 391
Issuance of common stock
warrants................... -- -- 897 -- -- -- -- 897
Issuance of common stock..... 1,262 -- 4,484 -- -- -- -- 4,484
Deferred compensation........ -- -- 11,701 (11,701) -- -- -- --
Amortization of deferred
compensation............... -- -- -- 11,701 -- -- -- 11,701
Net (loss)................... -- -- -- -- (25,676) -- -- (25,676)
------ -- ------- -------- -------- --- ---- --------
Balance, June 30, 1996......... 32,677 3 18,735 -- (58,251) (2) -- (39,515)
Return of treasury stock..... (429) -- -- -- -- -- -- --
Issuance of common stock..... 110 -- 268 -- -- -- -- 268
Foreign currency change...... -- -- -- -- -- -- (29) (29)
Net income................... -- -- -- -- 1,544 -- -- 1,544
------ -- ------- -------- -------- --- ---- --------
Balance, June 29, 1997......... 32,358 3 19,003 -- (56,707) (2) (29) (37,732)
Return of treasury stock..... (70) -- -- -- -- -- -- --
Issuance of common stock..... 62 -- 180 -- -- -- -- 180
Exercise of options.......... 63 -- 294 -- -- -- -- 294
Foreign currency change...... -- -- -- -- -- -- (30) (30)
Net income................... -- -- -- -- 18,143 -- -- 18,143
------ -- ------- -------- -------- --- ---- --------
Balance, June 28, 1998......... 32,413 $3 $19,477 $ -- $(38,564) $(2) $(59) $(19,145)
====== == ======= ======== ======== === ==== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 110
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) Description of the Business
ENTEX Information Services, Inc. ("ENTEX" or the "Company") was formed for
the purpose of acquiring, on August 6, 1993, the net assets of the personal
computer and systems integration business of JWP Information Services, Inc. On
June 28, 1996, the Company's former parent, ENTEX Holdings, Inc., ("Holdings")
was merged with and into the Company. Holdings' investment in the Company
represented its only substantive assets and operations, and accordingly, was
accounted for like a pooling-of-interests transaction.
ENTEX is a leading provider of integrated personal computer ("PC")
management solutions to meet the distributed information technology systems and
end user support requirements of Fortune 1000 companies and other large
enterprises. ENTEX offers its customers a single source for integrated PC
management solutions, including sophisticated PC infrastructure procurement and
configuration, outsourcing and desktop migration and integration services.
(B) Fiscal Year
The Company maintains its accounting records on a fifty-two week basis
ending on the Sunday closest to June 30. The accompanying financial statements
present the results of operations for the fiscal years June 30, 1997 to June 28,
1998, July 1, 1996 to June 29, 1997 and July 3, 1995 to June 30, 1996.
(C) Consolidation
The consolidated financial statements include the financial statements of
the Company and its wholly owned subsidiaries. All significant intercompany
balances and transactions have been eliminated in consolidation.
The preparation of financial statements in accordance with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the consolidated financial
statements and accompanying notes. Actual results could differ from those
estimates.
(D) Inventories
Inventory for resale is stated at the lower of cost or market value.
Service parts inventory is valued using a moving weighted average market value
method. The Company assesses the appropriateness of the inventory valuations
giving consideration to obsolete, slow moving or non-saleable inventory.
(E) Property, Plant and Equipment
Property, plant and equipment are stated at cost less accumulated
depreciation. Depreciation expense is calculated using the straight-line method
over the estimated useful lives of the assets. Such useful lives range from 25
years for buildings to three to seven years for furniture and equipment.
Leasehold and capital improvements are amortized using the straight-line method
over the estimated useful life of the property or over the term of the lease,
whichever is shorter.
The Company systematically reviews the recoverability of its long-lived
assets by comparing their unamortized carrying value to their related
undiscounted future cash flows. Any impairment is charged to expense when such
determination is made.
F-7
<PAGE> 111
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(F) Capitalized Software
The Company capitalizes certain computer software license acquisition costs
which are amortized utilizing the straight-line method over their estimated
useful lives, which range from five to eight years.
In October 1997, the AICPA issued Statement of Position ("SOP") 97-2,
"Software Revenue Recognition", which supersedes SOP 91-1. SOP 97-2 generally
requires revenue earned on software arrangements involving multiple elements,
such as additional software products, upgrades or enhancements, to be allocated
to the various elements of such sale based on "vendor-specific objective
evidence of fair values" allocable to each such element. The Company's software
sales primarily consist of shrink wrap and volume license agreement software
sales. The Company's revenue recognition procedures as they relate to software
sales comply with SOP 97-2.
In 1998, the Company adopted the provisions of SOP 98-1, "Accounting for
the Costs of Computer Software Developed or Obtained for Internal Use." The SOP
requires that certain costs related to the development or purchase of
internal-use software be capitalized and amortized over the estimated useful
life of the software. The SOP also requires that costs related to the
preliminary project stage and the post-implementation/operations stage of an
internal-use computer software development project be expensed as incurred. The
impact of adopting SOP 98-1 did not have a significant impact on previously
recorded amounts.
(G) Goodwill
Goodwill relates to the excess of cost over the net assets of acquired
businesses and is being amortized on a straight-line basis from ten to 20 years.
The Company reviews the recoverability of goodwill by comparing the
unamortized balance to the related anticipated undiscounted future cash flows
and measures any impairment based on the excess of the unamortized balance over
the present value of future cash flows, discounted using the Company's average
cost of funds.
(H) Revenue Recognition
Product revenue is recognized at the time of shipment to the customer.
Service revenue is recognized at the time the service is rendered or ratably
based on time elapsed or hours incurred if performed over a service contract
period. Unrecognized service revenue is deferred and included with accrued
liabilities and was $19,989 and $13,321 at June 28, 1998 and June 29, 1997,
respectively.
(I) Vendor Programs
The Company receives volume incentives and rebates (i.e. marketing
development funds) from certain manufacturers related to sales of certain
products which are recorded as a reduction of cost of sales when related
products are sold. Other incentives may require specific incremental action on
the part of the Company such as training, advertising or other pre-approved
market development activities and are recognized as an offset to the related
costs when the required action is performed.
(J) Risks & Uncertainties
The Company's business is dependent in large measure upon its relationship
with key vendors since a substantial portion of the Company's revenue is derived
from the sales of the products of such key vendors. Changes in the dynamics of
the industry, including the manner in which vendors approach the marketplace, or
the termination of, or a material change to the Company's agreements with these
vendors would have a material adverse effect on the Company. In addition, a
material decrease in the level of marketing development programs offered by
manufacturers, or an insufficient or interrupted supply of vendors' product
F-8
<PAGE> 112
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
would also have a material adverse effect on the Company's business. In
addition, the Company's asset based borrowings are exposed to market risk due to
fluctuations in interest rates.
(K) Income Taxes
The Company uses the asset and liability method of accounting for income
taxes. Under the asset and liability method of SFAS 109, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases and operating loss and tax credit
carryforwards. Deferred tax assets and liabilities are measured using enacted
tax rates expected to apply to taxable income in the years in which those
temporary differences are expected to be recovered or settled. The effect on
deferred tax assets and liabilities of a change in the tax rates is recognized
in income in the period that includes the enactment date.
(L) Financial Instruments
The Company's financial instruments, principally cash, accounts receivable
and accounts payable are carried at cost, which approximates fair value due to
the short-term maturity of these instruments. As amounts outstanding under the
Company's credit agreements bear interest approximating current market rates,
their carrying amounts approximate fair value.
(M) Stock-Based Compensation
The Company accounts for its stock option plans in accordance with
Accounting Principles Board Opinion No. 25, "Accounting For Stock Issued To
Employees." No compensation expense has been recognized in 1998 or 1997 because
the options had an exercise price equal to or greater than the market value of
the common stock on the date of the grant.
(N) New Accounting Pronouncements
The Financial Accounting Standards Board recently issued standards which
will be applicable to the Company but which the Company has not yet adopted:
FASB Statement No. 130, "Reporting Comprehensive Income" and FASB Statement No.
131, "Disclosures About Segments of an Enterprise and Related Information."
These statements are not expected to have a significant impact on the financial
statements.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
requires companies to recognize all derivatives as assets or liabilities
measured at their fair value. Gains and losses resulting from changes in the
values of those derivatives would be accounted for depending on the use of the
derivative and whether it qualifies for hedge accounting. This statement is
effective for fiscal years beginning after June 15, 1999 and based on current
events the Company does not believe the statement will have a significant impact
on the financial statements.
On April 3, 1998, the Accounting Standards Executive Committee of the AICPA
released SOP 98-5, "Reporting on the Costs of Start-Up Activities." The SOP,
which is effective for periods beginning after December 15, 1998, requires that
at the beginning of the fiscal year of adoption, the unamortized portion of
deferred start up costs should be written off and reported as a change in
accounting principle. Future costs of start-up activities should then be
expensed as incurred. This statement is not expected to have a significant
impact on the financial statements.
(O) Earnings Per Share
In February 1997, the Financial Accounting Standards Board issued Statement
No. 128, "Earnings Per Share", which is required to be adopted for both interim
and annual financial statements for periods ending
F-9
<PAGE> 113
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
after December 15, 1997. The new standard simplifies the computation of earnings
per share (EPS) and requires the presentation of two new amounts, basic and
diluted earnings per share. During 1998, the company adopted SFAS 128 and
restated its computation of EPS for all periods.
Basic earnings per share is computed using the weighted average number of
shares of common stock outstanding during the period. Diluted earnings per share
reflect the dilutive effect of common stock equivalents using the treasury stock
method. Common stock equivalents include amounts computed on outstanding options
and warrants.
(2) ACQUISITIONS AND DIVESTITURES
On September 19, 1995 the Company purchased all of the outstanding shares
of Random Access, Inc. ("Random Access") for $21,970. Random Access was a
provider of information technology solutions through the sale of microcomputers
and technical services to corporate and institutional clients in the western
United States. The Company issued a $20,000 four year interest-bearing note
payable to IBM Credit Corporation to fund this purchase. The acquisition has
been accounted for as a purchase, and the results of operations of Random Access
have been included in the accompanying financial statements since the date of
acquisition. The excess of the aggregate purchase price over the fair value of
the net assets acquired was $28,317.
On April 2, 1996, the Company sold the training business that was acquired
as part of the Random Access acquisition to Knowledge Alliance Holdings, Inc.
("KAH"), a wholly owned subsidiary of Training Holdings LLC. Training Holdings
LLC is a corporation controlled by Dort A. Cameron III, the Company's chairman
and majority stockholder, and his affiliates. The training business assets had a
net book value of approximately $1,100 and were exchanged for 2,500 shares of
KAH common stock, which represented 25% of its then outstanding shares. There
was no gain or loss recognized on the sale and the Company's $1,100 investment
in KAH is included in other assets. In connection with this sale, KAH was
granted the option to purchase the assets of the training business conducted by
ENTEX in Minneapolis, MN for the book value of the assets on the date of
acquisition. The option was exercised on August 1, 1996 and the purchase price
was $235. In fiscal 1998, Knowledge Alliance issued additional shares of stock
which reduced Entex's ownership percentage to 13%. Due to the fact that the
Company exercises significant influence, the Company accounts for their
investment using the equity method. The Company's share of earnings (loss) in
KAH since April 2, 1996 is insignificant.
On July 12, 1996, the Company acquired all the issued and outstanding stock
of FCP Technologies Inc. ("FCP") for $7,216, including direct acquisition costs.
FCP was a systems integrator based in Frederick, Maryland specializing in
network integration, migration and consulting services. The acquisition has been
accounted for as a purchase, and the results of operations of FCP have been
included in the accompanying financial statements since the date of acquisition.
The excess of the aggregate purchase price over the fair market value of the net
assets acquired was $14,077.
On April 18, 1997, the Company sold Education Access, acquired as part of
the acquisition of Random Access, for $2,285. The net gain on the sale was $504.
(3) INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
-------- --------
<S> <C> <C>
Finished goods held for resale......................... $180,320 $175,300
Service parts.......................................... 12,521 8,657
-------- --------
$192,841 $183,957
======== ========
</TABLE>
F-10
<PAGE> 114
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(4) PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following:
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
-------- --------
<S> <C> <C>
Land................................................... $ 1,305 $ 1,305
Building and building improvements..................... 8,478 8,437
Office and computer equipment.......................... 60,620 47,061
Furniture and fixtures................................. 12,002 11,471
Leasehold improvements................................. 7,335 7,083
Capitalized software................................... 17,801 7,590
Other equipment........................................ 6,462 6,363
-------- --------
114,003 89,310
Accumulated depreciation and amortization.............. (52,994) (34,261)
-------- --------
$ 61,009 $ 55,049
======== ========
</TABLE>
(5) DEBT
Debt consists of the following:
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
-------- --------
<S> <C> <C>
Asset based financing.................................. $290,328 $338,005
Other short-term debt.................................. 5,353 10,271
-------- --------
295,681 348,276
Long-term debt......................................... 53,239 48,215
-------- --------
Total........................................ $348,920 $396,491
======== ========
</TABLE>
(A) Asset Based Financing
The Company has asset based financing agreements with IBM Credit
Corporation and Finova Capital Corporation which made credit available of up to
$635,000 at June 28, 1998 and June 29, 1997. These agreements provide that a
portion of the balance outstanding be non-interest bearing for a specific period
of time ranging from 30 to 60 days. Interest rates under the agreements are
prime plus 1/2% (base rate) at June 28, 1998 and June 29, 1997, respectively,
except for $10,000 which bears interest at base rate plus 2%. The agreements are
generally secured by inventories, equipment, and in certain instances, accounts
receivable. The aggregate amounts outstanding under the IBM Credit Agreement as
of June 28, 1998 and June 29, 1997 were $380,065 and $421,075, respectively. Of
these amounts, $290,328 and $338,005, respectively, represent interest bearing
liabilities and $89,737 and $83,070, respectively, are non-interest bearing and
are included within accounts payable. Under the financing agreement with IBM
Credit Corporation, a term loan in the original principal amount of $20 million
is required to be outstanding unless there are no outstanding interest bearing
advances under such financing agreement. $10 million of the IBM term loan
remained outstanding at June 28, 1998 (see Subsequent Events note 10). The
agreements may be terminated by the financiers immediately; upon certain events
of default; or otherwise within sixty days by either party with notice. The
amounts outstanding under the Finova Capital Agreement as of June 28, 1998 and
June 29, 1997 were $86,390 and $91,077, respectively, are non-interest bearing
and are included with accounts payable. Under these agreements the Company had
available an additional $168,545 and $122,848, at June 28, 1998 and June 29,
1997, respectively.
F-11
<PAGE> 115
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The above asset based financing agreements contain restrictive covenants
with respect to maintenance of minimum tangible net worth, current ratio, fixed
asset additions, fixed charges, and certain additional indebtedness. In
addition, the IBM Credit Corporation agreement prohibits the Company from paying
cash dividends on common stock. Under the IBM Credit Agreement at both June 28,
1998 and June 29, 1997, the Company was not in compliance with all such
covenants but continued to maintain an excess collateral position. IBM Credit
Corporation has waived all defaults arising from such non-compliance with
covenants. As of July 29, 1998, the Company re-negotiated a $525 million,
three-year credit facility with IBM Credit Corporation. The interest rate under
the new arrangement is LIBOR plus 2.10% (7.75% at July 29, 1998).
(B) Other Short-Term Debt
Other short-term debt includes current installments of long-term debt
totaling $5,138 at June 28, 1998 and $984 at June 29, 1997. Remaining amounts at
June 28, 1998 and June 29, 1997 are notes payable carrying an effective interest
rate of 4% to 7%.
The weighted average interest rate on short term debt was 9.0% and 9.2% at
June 28, 1998 and June 29, 1997, respectively.
(C) Long-Term Debt
Long-term debt consists primarily of (a) subordinated debentures discounted
to yield 20% that will accrete to their face value of $43,128 by their due date
of March 1, 2007 ($20,545 and $22,025 outstanding at June 28, 1998 and June 29,
1997, respectively), (b) a $17,250 note (outstanding at June 28, 1998 and June
29, 1997) issued in connection with the purchase of Random Access which bears
interest at prime plus 2.5% and is due on September 19, 1999 (see Subsequent
Events note 10), (c) a mortgage loan of $6,600 relating to the integration
center in Erlanger, Kentucky which bears interest at 8.75% and is due February
2007, of which $4,405 and $4,794 was outstanding at June 28, 1998 and June 29,
1997, respectively, (d) $4,146 (outstanding at June 28, 1998 and June 29, 1997,
respectively) in notes held by entities owned or controlled by the Company's
Chairman that bear interest at prime plus 2.5% and are due on July 29, 2000 (see
Subsequent Events note 10), (e) a $9,000 face amount six year interest bearing
note ($6,892 and $0 outstanding at June 28, 1998 and June 29, 1997,
respectively), due June 2002 bearing interest at 4.0% for the first two years,
and at 6.0% for the final four years.
Aggregate annual principal payments of long-term debt subsequent to June
28, 1998 (including the subordinated debentures at face value) are as follows:
<TABLE>
<S> <C>
1999.............................................. $ 5,138
2000.............................................. 6,173
2001.............................................. 10,858
2002.............................................. 7,254
2003.............................................. 4,300
Thereafter........................................ 43,466
--------
77,189
Less unaccreted interest.......................... (18,812)
--------
$ 58,377
========
</TABLE>
F-12
<PAGE> 116
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(6) INCOME TAXES
The provision for income taxes consists of the following:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
--------------------------------
JUNE 28, JUNE 29, JUNE 30,
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Current:
Federal....................................... $417 $-- $--
State......................................... -- -- --
Foreign....................................... -- 25 28
Deferred:
Federal....................................... -- -- --
State......................................... -- -- --
---- --- ---
Total................................. $417 $25 $28
==== === ===
</TABLE>
For the current year, the provision for income taxes was offset by the
utilization of a net operating loss carryforward. Realization of the remaining
deferred tax asset associated with the net operating loss carryforward is
dependent on the likelihood of generating sufficient taxable income prior to its
expiration. In determining the need for a deferred tax asset valuation
allowance, the Company considered the weight of available evidence to determine
whether it was more likely than not that the deferred tax assets would be
utilized. Due to the uncertainty of future results, it was concluded that
realization of deferred tax assets was not "more likely than not" and,
accordingly, a valuation allowance to reduce net deferred tax assets to zero was
recorded.
A reconciliation of the differences between income taxes computed at
Federal statutory rates (35% in 1998 and 34% in 1997 and 1996) and the provision
for income taxes is as follows:
<TABLE>
<CAPTION>
JUNE 29, JUNE 30, JUNE 30,
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Tax at statutory rate......................... $ 6,496 $ 533 $(8,720)
Non-deductible goodwill....................... 1,004 1,051 782
Non-deductible meals and entertainment
expenses.................................... 394 437 263
Alternative minimum tax....................... 417 -- --
State and local income tax, net of federal
benefit..................................... 1,040 -- (589)
Provision/(benefit) for valuation
allowances.................................. (8,995) (1,982) 4,335
Non-deductible stock compensation expense..... -- -- 3,978
Other......................................... 61 (14) (21)
------- ------- -------
Provision for income taxes.................... $ 417 $ 25 $ 28
======= ======= =======
</TABLE>
F-13
<PAGE> 117
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Deferred income taxes reflect the net tax effect of temporary differences
between the carrying amounts of assets and liabilities for tax and financial
reporting purposes. Significant components of the Company's deferred tax assets
and deferred tax liabilities at June 28, 1998 and June 29, 1997 are as follows:
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
-------- --------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforward...................... $ 10,774 $ 19,425
Accruals and reserves not currently deductible....... 4,456 3,768
Allowance for bad debts.............................. 1,563 1,576
Inventory valuation reserves......................... 4,932 2,157
Other................................................ 981 1,873
-------- --------
22,706 28,799
Valuation allowance.................................. (10,741) (17,015)
-------- --------
Total........................................ $ 11,965 $ 11,784
======== ========
Deferred tax liabilities:
Discount in subordinated debentures.................. $ 6,457 $ 7,106
Other................................................ 5,508 4,678
-------- --------
Total........................................ $ 11,965 $ 11,784
======== ========
</TABLE>
Net current and non-current assets/liabilities are insignificant.
At June 28, 1998, the Company had a net operating loss carryforward of
approximately $27,000, which will expire in 2009 through 2011. Of such amounts,
approximately $7,700 relates to purchased net tax benefits which when realized
will decrease goodwill by approximately $3,050.
(7) STOCK OPTIONS, STOCK BENEFIT PLANS AND WARRANTS
The Company has three stock options plans: the ENTEX Holdings 1996 Stock
Option Plan (the "Holdings Plan") adopted February 1996, EIS Stock Option Plan
(the "EIS Plan") adopted July 1996, and the Performance Incentive Plan (the
"PIP") adopted August 1996 (collectively, the "Plans"). The Holdings Plan and
the EIS Plan provide for the issuance of incentive stock options ("ISOs") and
stock options that are non-qualified for Federal income tax purposes ("NQSOs").
The PIP provides for the issuance of ISOs, NQSOs, stock appreciation rights,
restricted stock, deferred stock, dividend equivalents and other stock-related
awards. The exercise price of the ISOs under all Plans may not be less than 100%
of fair market value at the time of grant. Options granted under the Holdings
Plan and the EIS Plan have an expiration of five years and generally vest over
three years. Options granted under the PIP have an expiration of ten years and
generally vest over five years. The Holdings Plan and EIS Plan were terminated
in June 1996 and August 1996, respectively, and therefore no further grants can
be awarded from such plans. At June 28, 1998 there were 4,389,350 shares
reserved for issuance under the PIP and 4,592,000 shares reserved for issuance
under the Holdings Plan and the EIS Plan. There were 6,411,955 options
outstanding under all Plans at June 28, 1998.
The Company has a Non-Employee Director Stock Plan, adopted August 1996,
which provides for the crediting of stock units representing the right to
receive common stock at not less than 100% of the fair market value at the time
of the credit. At June 28, 1998, 46,754 shares have been reserved for issuance,
and 53,246 shares have been issued.
In fiscal year 1996, certain managers and employees owned common stock of
the Company pursuant to Securities Purchase and Stockholders' Agreements
("Management Shares"), and share units pursuant to the
F-14
<PAGE> 118
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
1993 Employee Share Unit Plan ("SharePlan Shares"). Effective June 28, 1996, as
a result of an amendment to such plans, ownership was vested in the management
shares, common stock was issued for share units, and the Company recorded
compensation expense of $11,701 relating to the Management Shares and $4,484
relating to the SharePlan Shares based on fair value of the stock. The fair
value of $3.56 was derived by applying average market multiples of publicly
traded competitors of the Company to the Company's sales, operating income,
EBITDA and forecasted net income. In addition, the Company assumed the
obligation for the tax withholding requirement for the SharePlan Shares of
$2,000, which was recorded as compensation expense. No compensation expense was
recognized in connection with the Management Shares or SharePlan Shares for the
years ended June 28, 1998 and June 29, 1997.
At June 28, 1998 and June 29, 1997 there were 1,299,435 and 708,350 shares
of common stock reserved for outstanding warrants held by lenders. Warrants to
purchase 333,350 shares of common stock were granted on November 15, 1994, are
exercisable for $.20 and expire on July 15, 2001. These warrants were issued in
connection with a settlement of a dispute between the Company and the vendor.
Warrants to purchase 375,000 shares of common stock were granted on June 21,
1996 to Microsoft, were exercisable for $14.40 per share and expire on June 21,
2003. These warrants were issued as consideration for less than market rate
debt.
In connection with an amendment to the IBMCC Financing Agreement on July
15, 1997, the Company entered into a warrant agreement pursuant to which IBMCC
was issued warrants to acquire up to 250,855 shares of common stock. All
warrants issued to IBMCC may be exercised at any time prior to July 1, 2004 at
an exercise price of $7.55.
On November 12, 1997, the Company issued an additional 340,230 warrants to
Microsoft pursuant to the anti-dilution provisions in the original warrant
purchase agreement. Concurrently, the exercise price was revised to $7.55, also
pursuant to the anti-dilution provisions of the original warrant purchase
agreement. The fair value of the re-priced 715,230 warrants was slightly below
the $897,000 recorded in June 1996, as such no additional discount on the debt
has been recorded.
On November 25, 1997 the Board of Directors approved an increase in the
number of authorized common stock shares from 10,000,000 to 100,000,000. In
addition, the Board of Directors authorized a stock split in the form of a
four-for-one stock dividend to holders of record as of November 25, 1997,
whereby each such share will be equal to five shares of common stock. All
references in the consolidated financial statements referring to shares, share
prices, per share amounts and stock plans have been adjusted retroactively for
the four-for-one stock dividend.
A summary of the Company's stock option activity, and related information
for the fiscal years ended June 28, 1998, June 29, 1997 and June 30, 1996 is as
follows (in thousands, except for the weighted average exercise prices):
<TABLE>
<CAPTION>
1998 1997 1996
------------------------ ------------------------ ------------------------
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
SHARES EXERCISE PRICE SHARES EXERCISE PRICE SHARES EXERCISE PRICE
------ -------------- ------ -------------- ------ --------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of
year........................ 5,120 $5.19 3,260 $5.03 -- --
Granted................... 1,978 4.96 2,325 5.34 3,565 $5.03
Exercised................. (63) 4.63 -- -- -- --
Canceled.................. (623) 5.61 (465) 4.46 (305) 4.63
Outstanding -- end of year.... 6,412 4.95 5,120 5.19 3,260 5.03
Exercisable -- end of year.... 2,058 4.27 365 2.38 10 9.02
</TABLE>
F-15
<PAGE> 119
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following summarizes information about the Company's stock options
outstanding and exercisable by price range at June 28, 1998 (options in
thousands):
<TABLE>
<CAPTION>
OUTSTANDING EXERCISABLE
---------------------------------------- -------------------------
WT. AVERAGE
REMAINING
RANGE OF CONTRACTUAL WEIGHTED-AVERAGE WEIGHTED-AVERAGE
EXERCISE PRICES NUMBER LIFE YEARS EXERCISE PRICE NUMBER EXERCISE PRICE
- --------------- ------ ------------ ---------------- ------ ----------------
<S> <C> <C> <C> <C> <C>
$ .01 - $ 4.00 1,649 8.8 $2.04 515 $2.04
$4.00 - $ 8.00 4,103 6.4 4.87 1,504 4.91
$8.00 - $12.00 660 3.0 9.25 39 9.02
</TABLE>
Pro forma information regarding net income is required by SFAS No. 123
"Accounting for Stock Based Compensation", and has been determined as if the
Company had accounted for its stock option plan under the fair value method of
that statement. Pro forma net income and compensation expense are as follows:
<TABLE>
<CAPTION>
JUNE 28, JUNE 29,
1998 1997
--------- ---------
(IN THOUSANDS,
EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Net income............................................ As reported $18,143 $1,544
Pro forma 17,082 721
Compensation Expense.................................. Pro forma 1,061 823
Basic Earnings Per Share.............................. As reported .56 .05
Pro forma .53 .02
</TABLE>
For purposes of pro forma disclosures only, the estimated fair value of the
options is amortized to expense over the options' vesting period. The fair value
for all options was estimated at the date of grant using the Black-Scholes
multiple option model with the following assumptions: Risk-free interest rates
of 5.08% to 6.22%, for fiscal year 1998 and 6.22% to 6.39% for fiscal year 1997;
expected dividend yield of 0.0%; and expected life of 3.0 to 8.8 years. The per
share weighted-average fair value of options granted was $1.11 during fiscal
year 1998 and $1.40 during fiscal 1997. Volatility was not a factor in
calculating the fair value of options since the Company's stock is not publicly
traded.
(8) 401(K) PLAN
The Company has a 401(k) Plan that covers all employees effective the first
day of the month following 30 days of employment and who are at least 21 years
of age. Employees may contribute between 1% and 15% of compensation subject to
the limitations imposed by law. The Company will match up to 3% of the
employee's eligible contribution. The amount charged to expense for the matching
contribution was $2,008 and $1,655 for the years ended June 28, 1998 and June
29, 1997, respectively. There was no matching contribution for the year ended
June 30, 1996.
(9) LEASES
The Company routinely leases office buildings, equipment and automobiles.
These leases expire at various dates through July 2005. Certain leases contain
renewal provisions and generally require the Company to pay utilities,
insurance, taxes, and other operating expenses. Future minimum rental payments
under
F-16
<PAGE> 120
ENTEX INFORMATION SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
operating leases that have initial or remaining non-cancelable lease terms in
excess of one year as of June 28, 1998 are as follows:
<TABLE>
<CAPTION>
YEAR ENDING JUNE:
- -----------------
<S> <C>
1999..................................................... $ 9,644
2000..................................................... 8,502
2001..................................................... 6,791
2002..................................................... 5,511
2003..................................................... 2,606
Thereafter................................................. 7,012
-------
Total minimum lease payments...................... $40,066
=======
</TABLE>
Rent expense for all operating leases totaled $13,082, $11,908 and $9,412
for the years ended June 28, 1998, June 29, 1997, and June 30, 1996,
respectively.
The cost of assets recorded under capital leases was $273 and $1,870 at
June 28, 1998 and June 29, 1997, respectively. Accumulated amortization on such
assets was $152 and $638 at June 28, 1998 and June 29, 1997, respectively. The
present value of capital lease obligations as of June 28, 1998 and June 29, 1997
was $64 and $579, respectively.
(10) SUBSEQUENT EVENTS
On July 29, 1998, the Company completed its offering of $100 million
aggregate principal amount of its 12 1/2% Senior Subordinated Notes due 2006
(the "Notes"). The Notes were issued pursuant to an indenture dated July 29,
1998, among the Company, the Guarantors and Marine Midland Bank, N.A., as
Trustee. The Notes were privately placed in a transaction exempt from
registration under the Securities Act of 1933, as amended. The net proceeds from
the sale of the Notes were used to repay outstanding indebtedness of the
Company, which resulted in an increase in working capital of approximately $65
million. Included in the amounts repaid were the remaining balance of the IBM
Credit Corporation term loan as well as the $17,250 note related to the purchase
of Random Access. In connection with the issuance and sale of the Notes, the
Company re-negotiated a $525 million, three-year credit facility with IBM Credit
Corporation. The interest rate under the new arrangements is LIBOR plus 2.10%.
Concurrently, with the consummation of the offering, an affiliate of one of the
investors purchased $10 million of common stock of the Company from its current
shareholders. In connection with the purchase the Company granted certain
registration rights.
F-17
<PAGE> 121
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER
CONTAINED HEREIN OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND THE
ACCOMPANYING LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE EXCHANGE AGENT. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING LETTER OF
TRANSMITTAL, OR BOTH TOGETHER, CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY ANY SECURITY OTHER THAN THOSE TO WHICH IT RELATES, NOR DOES
IT CONSTITUTE AN OFFER TO SELL, OR THE SOLICITATION OF ANY OFFER TO BUY, TO ANY
PERSON 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. NEITHER THE DELIVERY OF THIS PROSPECTUS, NOR THE ACCOMPANYING
LETTER OF TRANSMITTAL, OR BOTH TOGETHER, NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. iv
Special Note Regarding Forward-Looking
Statements.......................... iv
Summary............................... 1
Risk Factors.......................... 12
Capitalization........................ 21
Selected Consolidated Financial
Data................................ 22
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 24
Business.............................. 31
Management............................ 45
Principal Stockholders................ 55
Description of Other Indebtedness..... 57
The Exchange Offer.................... 59
Description of the Notes.............. 66
Book-Entry; Delivery and Form......... 91
Certain United States Federal Income
Tax Considerations.................. 93
Plan of Distribution.................. 96
Legal Matters......................... 97
Experts............................... 97
Index to Consolidated Financial
Statements.......................... F-1
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$100,000,000
[ENTEX LOGO]
ENTEX INFORMATION
SERVICES, INC.
OFFER TO EXCHANGE ITS
12 1/2% SENIOR SUBORDINATED NOTES DUE 2006,
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS
12 1/2% SENIOR SUBORDINATED NOTES DUE 2006
THE EXCHANGE AGENT FOR THE
EXCHANGE OFFER IS:
MARINE MIDLAND BANK
------------------------
PROSPECTUS
------------------------
, 1998
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 122
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
DELAWARE CORPORATIONS
Each of the Company, ENTEX Services, Inc., Erlanger Land Co., Inc. and FCP
Technologies, Inc. is incorporated under the laws of the State of Delaware.
Sections 102 and 145 of Delaware General Corporation Law (the "DGCL") set forth
the conditions and limitations governing the indemnification of officers,
directors and other persons by Delaware corporations.
Generally, Section 145 of the DGCL provides that a Delaware corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding (except actions
by or in the right of the corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her 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 interest of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In addition, a Delaware corporation may
similarly indemnify such person for expenses actually and reasonably incurred by
him or her in connection with the defense or settlement of any action or suit by
or in the right of the corporation, provided such person acted in good faith and
in a manner he or she reasonably believed to be in the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall have determined upon application, that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. To the extent that a present or former
director or officer of a Delaware corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith.
Generally, Section 102(b)(7) of the DGCL provides that the certificate of
incorporation of a Delaware corporation may contain provisions eliminating or
limiting the personal liability of a director to a corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided that such provision may not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for act or omissions not in good faith or which
involve intentional misconduct or knowing violation of law, (iii) under Section
174 of Title VIII, or (iv) for any transaction from which the director derived
an improper personal benefit. No such provision may eliminate or limit the
liability of a director for any act or omission occurring prior to the date
which such provisions becomes effective.
Section 145 provides that a Delaware corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against the same pursuant to the
provisions of the DGCL.
The Certificate of Incorporation of the Company, as amended (the "Company
Charter"), provides for indemnification of directors and officers for
liabilities and expenses incurred in defending actions brought against them in
such capacities. The Company Charter provides that the Company shall indemnify
directors of the Company to the maximum extent now or hereafter permitted by
law, and officers, employees and agents of the Company to the extent required by
law and may, as authorized hereafter by the Board of Directors, provide further
indemnification to officers, employees and agents of the Company to the maximum
extent now or hereafter permitted by law.
II-1
<PAGE> 123
The Certificates of Incorporation and the By-Laws of each of ENTEX
Services, Inc., Erlanger Land Co., Inc. and FCP Technologies, Inc. provide for
the indemnification of directors, officers, employees and agents of the
corporation to the extent permitted under Section 145 of the DGCL. In addition,
each of the Certificates of Incorporation and the By-Laws limit the personal
liability of directors to the extent permitted by Section 102(b)(7) of the DGCL.
The Company maintains directors' and officers' liability insurance covering
all directors and officers of the Company against claims arising out of the
performance of their duties.
COLORADO CORPORATIONS
ENTEX Information Services of Colorado, Inc. is incorporated under the laws
of the State of Colorado. Articles 108 and 109 of the Colorado Business
Corporations Act (the "CBCA") set forth the conditions and limitations governing
the indemnification of officers, directors and other persons by Colorado
corporations.
Generally, Article 109 of the CBCA requires that a Colorado corporation
indemnify a person who was wholly successful, on the merits or otherwise, in the
defense of any threatened, pending or completed action, suit or proceeding (for
purposes of this paragraph, a "Proceeding") to which such person was a party
because such person was or is a director or officer of the corporation for
reasonable expenses incurred in connection with a Proceeding. In addition, a
Colorado corporation may indemnify a person made a party to a Proceeding because
such person is or was a director, officer, employee, fiduciary or agent against
liability incurred in connection with such a Proceeding if (a) such person
conducted himself or herself in good faith, (b) such person reasonably believed:
(I) in the case of conduct in an official capacity with the corporation, that
his or her conduct was in the corporation's best interests; and (II) in all
other cases, that his or her conduct was at least not opposed to the
corporation's best interests, and (c) in the case of any criminal proceeding,
the person has no reasonable cause to believe his or her conduct was unlawful.
All optional indemnification in connection with a Proceeding by or in the right
of the corporation is limited to reasonable expenses incurred in connection
therewith. Article 109 of the CBCA provides further, generally, that a Colorado
corporation may not indemnify a person was or is a director, officer, employee,
fiduciary or agent (a) in connection with a Proceeding by or in the right of the
corporation in which such person was adjudged liable to the corporation or (b)
in connection with any other Proceeding charging that such person derived an
improper personal benefit, whether or not involving action in an official
capacity, in which Proceeding such person was adjudged liable on the basis that
he or she derived an improper personal benefit.
Generally, Article 8 of the Business Corporations Act provides that the
articles of incorporation of a Colorado corporation may eliminate or limit the
personal liability of a director to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director; provided that any
such provision shall not eliminate or limit the liability of a director for a
breach of the duty of loyalty to the corporation or its shareholders, acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, unlawful distributions, or any transaction from which a
director directly or indirectly derived an improper personal benefit.
Section 108 of Article 109 of the CBCA provides that a Colorado corporation
may purchase and maintain insurance on behalf of a person who is or was a
director, officer, employee, fiduciary or agent of the corporation against
liability asserted against or incurred by the person in that capacity or arising
from his or her status as a director, officer, employee, fiduciary or agent,
whether or not the corporation would have the power to indemnify such person
against the same liability pursuant to the provisions of the CBCA.
The Certificate of Incorporation of ENTEX Information Services of Colorado,
Inc. provides for the indemnification of directors, officers, employees,
fiduciaries and agents of the corporation to the extent permitted under Article
109 of the CBCA. In addition, the Certificate of Incorporation limits the
personal liability of directors to the extent permitted by Section 108 of
Article 109 of the CBCA.
II-2
<PAGE> 124
MICHIGAN CORPORATIONS
ENTEX Information Services of Michigan, Inc. is incorporated under the laws
of the State of Michigan. Sections 561 through 571 of the Michigan Business
Corporation Act (the "MBCA") set forth the conditions and limitations governing
the indemnification of officers, directors and other persons by Michigan
corporations.
Generally, Section 561 of the MBCA provides that a Michigan corporations
has the power to indemnify a person who was or is a party or is threatened to be
made a party to a threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and whether formal or
informal, other than an action by or in the right of the corporation, by reason
of the fact that such person is or was a director, employee or agent of the
corporation against expenses judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding, if such person 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 or its shareholders, and with respect to a criminal action or
proceeding, if such person had no reasonable cause to believe his or her conduct
was unlawful. Section 562 of the MBCA provides, generally, that a Michigan
corporation has the power to indemnify a person who was or is a party or is
threatened to be made a party to a threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact such person is or was a director, employee or agent of the
corporation against expenses and amounts paid in settlement actually and
reasonably incurred by the person in connection with the action or suit, if such
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation or its shareholders.
However, indemnification shall not be made for a claim, issue or matter in which
such person is found liable to the corporation unless and only to the extent
that a court of competent jurisdiction has determined that, despite the
adjudication of liability but in view of all circumstances of the case, the
person is fairly and reasonably entitled to indemnification for the expenses
which the court considers proper. Section 563 provides that to the extent that a
director, officer, employee or agent of a Michigan corporation has be successful
on the merits or otherwise in defense of an action, suit or proceeding referred
to above, or in defense of a claim, issue or matter in the action, suit or
proceeding, he or she shall be indemnified against actual and reasonable
expenses incurred by him or her in connection with the action suit or proceeding
and an action, suit or proceeding brought to enforce the mandatory
indemnification provided by Section 563.
Section 564 of the MBCA allows a Michigan corporation to indemnify a
director without a determination that the director has met the standard for
conduct described above, provided that no indemnification may be made (except by
court order) if the director received a financial benefit to which he or she is
not entitled, intentionally inflicted harm on the corporation or its
shareholders, made an unlawful distribution, or intentionally violated criminal
law.
Section 567 of the MBCA permits a Michigan corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation against liabilities arising out of such
person's positions with the corporation, whether or not the corporation would
have the power to indemnify such person against liability under the MBCA.
The Articles of Incorporation and the By-Laws of ENTEX Information Services
of Michigan, Inc. do not include provisions for the indemnification of
directors, employees or agents of the corporation. As such, the provisions of
the MBCA regarding indemnification are controlling.
II-3
<PAGE> 125
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
+2.1 Agreement and Plan of Reorganization by and between ENTEX
Holdings, Inc. and the Company dated as of June 28, 1996.
+2.2 Agreement and Plan of Merger by and among the Company, ENTEX
Acquisition Corp. and Random Access, Inc. and related
amendment.
+2.3 Agreement and Plan of Reorganization among the Company, EIS
Acquisition Corporation and FCP Technologies, Inc.
+3.1 Certificate of Incorporation of the Company, as amended.
+3.2 Amended and Restated By-Laws of the Company.
3.3 Certificate of Incorporation of ENTEX Information Services
of Michigan, Inc., as amended.
3.4 By-Laws of ENTEX Information Services of Michigan, Inc.
3.5 Amended and Restated Certificate of Incorporation of ENTEX
Information Services of Colorado, Inc.
3.6 By-Laws of ENTEX Information Services of Colorado, Inc.
3.7 Certificate of Incorporation of ENTEX Services, Inc.
3.8 By-Laws of ENTEX Services, Inc.
3.9 Certificate of Incorporation of Erlanger Land Co., Inc.
3.10 By-Laws of Erlanger Land Co., Inc.
3.11 Amended and Restated Certificate of Incorporation of FCP
Technologies, Inc.
3.12 By-Laws of FCP Technologies, Inc.
++4.1 Indenture dated July 29, 1998 by and among the Company, the
guarantors named therein and Marine Midland Bank, as
Trustee.
++4.2 Registration Rights Agreement dated July 29, 1998 by and
among the Company, the guarantors named therein and CIBC
Oppenheimer Corp. and Lazard Freres & Co. LLC, as Initial
Purchasers.
**5.1 Opinion of Cahill Gordon & Reindel as to the legality of the
securities being registered.
+10.1 Form of Indemnification Agreement entered into by the
Company with each of its directors and executive officers.
+10.2 Agreement between John A. McKenna, Jr. and the Company dated
August 7, 1994 and related amendment.
+10.3 Letter Agreement between Kenneth A. Ghazey and the Company
dated January 6, 1997.
+10.4 Retention Agreement between Dale H. Allardyce and the
Company dated November 17, 1997.
+10.5 Retention Agreement between John F. Lyons and the Company
dated November 17, 1997.
+10.6 Letter Agreement between David J. Csira and the Company
dated November 15, 1996.
+10.7 Employment Agreement between Richard Nathanson and the
Company dated July 10, 1996.
+10.8 Stockholders' Agreement among ENTEX Holdings, Inc., Dort A.
Cameron III and ENTEX Associates, L.P. dated December 10,
1993 and related amendments.
+10.9 ENTEX Holdings, Inc. 1996 Stock Option Plan and related
agreements.
+10.10 ENTEX Information Services, Inc. 1996 Stock Option Plan and
related agreements.
+10.11 1996 Performance Incentive Plan and related agreements.
+10.12 1996 Non-Employee Director Stock Plan.
+10.13 ENTEX Management Incentive Plan.
+10.14 Sublease Agreement dated June 6, 1997 between General
Electric Company and the Company and related consent.
+10.15 Lease Agreement dated January 20, 1995 between Royal
Executive Park II and the Company and related amendment.
+10.16 Sublease Agreement dated August 6, 1993 between JWP Inc.,
and the Company and related amendments, consents and lease
agreements.
</TABLE>
II-4
<PAGE> 126
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
+10.17 Lease Agreement dated December 31, 1996 between the Company
and Duke Realty Limited Partnership and related amendments.
+10.18 Lease Agreement dated May 15, 1995 between the Company and
Duke Realty Limited Partnership and related amendments.
+10.19 Lease Agreement dated February 29, 1992 between the Company
and 725 C.W. Associates Limited Partnership and related
amendments.
+10.20 Dealer Loan and Security Agreement between FINOVA Capital
Corporation and the Company dated April 21, 1995 and Letter
Agreements dated April 17, 1995 and May 17, 1996.
+10.21 Fourth Amended and Restated Agreement for Wholesale
Financing by and between IBM Credit Corporation and the
Company and related amendments.
+10.22 Warrant Agreement between IBM Credit Corporation, ENTEX
Holdings, Inc. and the Company dated November 15, 1994.
+10.23 Warrant Agreement between IBM Credit Corporation and the
Company dated July 15, 1994.
*10.24 Employment Agreement dated July 1, 1998 by and between the
Company and Dort A. Cameron III.
++10.25 Amendment No. 13 to the Fourth Amended and Restated
Agreement for Wholesale Financing dated July 29, 1998 by and
between the Company and IBM Credit Corporation.
12 Statement re: Computation of Ratio of Earnings and Fixed
Charges.
+21.1 Subsidiaries of the Company.
23.1 Consent of Independent Public Accountants.
**23.2 Consent of Cahill Gordon & Reindel (included in Exhibit
5.1).
24 Powers of Attorney (set forth on the signature page of the
Registration Statement).
**25 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Marine Midland Bank, as Trustee
under the Indenture.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
+ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form 10 filed on December 3, 1997 and all amendments thereto.
++ Incorporated by reference to the exhibits to the Company's Current Report on
Form 8-K dated August 11, 1998.
* Incorporated by reference to the exhibits to the Company's Annual Report on
Form 10-K dated September 25, 1998.
** To be filed by amendment.
(b) Financial Statement Schedules
<TABLE>
<CAPTION>
SCHEDULE
NUMBER DESCRIPTION OF DOCUMENT PAGE
-------- ----------------------- ----
<S> <C> <C>
Schedule II Valuation and Qualifying Accounts and Reserves............ S-1
</TABLE>
Schedules not listed above are omitted as the required information is
presented in the Registrant's consolidated financial statements or related notes
or such schedules are not applicable.
ITEM 22. UNDERTAKINGS.
(1) The undersigned registrants (the "Registrants") hereby undertake as
follows: that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the Registrants undertake that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form.
II-5
<PAGE> 127
(2) The Registrants undertake that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of the
amendment to this Registration Statement and will not be used until such
amendment is effective, and that, for purposes 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been advised that in the opinion of the 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 Registrants of expenses incurred or
paid by a director, officer or controlling person of the Registrants 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 Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of this Registration Statement through the date
of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
The undersigned Registrants hereby undertake to file an application for the
purpose of determining the eligibility of the Trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Securities Act.
II-6
<PAGE> 128
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
ENTEX INFORMATION SERVICES, INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------------
Name: Kenneth A. Ghazey
Title: Executive Vice President-Finance
and Administration, Chief Financial
Officer and Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DORT A. CAMERON III Chairman of the Board September 30, 1998
- ---------------------------------------------------
Dort A. Cameron III
/s/ JOHN A. MCKENNA, JR. President, Chief Executive September 30, 1998
- --------------------------------------------------- Officer and Director
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Executive Vice President -- September 30, 1998
- --------------------------------------------------- Finance and Administration,
Kenneth A. Ghazey Chief Financial Officer and
Director
/s/ R. RANDOLPH DEVENING Director September 30, 1998
- ---------------------------------------------------
R. Randolph Devening
/s/ LINWOOD A. LACY, JR. Director September 30, 1998
- ---------------------------------------------------
Linwood A. Lacy, Jr.
/s/ FRANK W. MILLER Director September 30, 1998
- ---------------------------------------------------
Frank W. Miller
</TABLE>
II-7
<PAGE> 129
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
ENTEX INFORMATION SERVICES OF
MICHIGAN, INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------------
Name: Kenneth A. Ghazey
Title: Vice President and Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DORT A. CAMERON III Chairman of the Board September 30, 1998
- ---------------------------------------------------
Dort A. Cameron III
/s/ JOHN A. MCKENNA, JR. President and Director September 30, 1998
- ---------------------------------------------------
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Vice President and Treasurer September 30, 1998
- ---------------------------------------------------
Kenneth A. Ghazey
</TABLE>
II-8
<PAGE> 130
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
ENTEX INFORMATION SERVICES OF
COLORADO, INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------
Name: Kenneth A. Ghazey
Title: Vice President and
Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DORT A. CAMERON III Chairman of the Board September 30, 1998
- ---------------------------------------------------
Dort A. Cameron III
/s/ JOHN A. MCKENNA, JR. President and Director September 30, 1998
- ---------------------------------------------------
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Vice President and Treasurer September 30, 1998
- ---------------------------------------------------
Kenneth A. Ghazey
</TABLE>
II-9
<PAGE> 131
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
ENTEX SERVICES, INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------
Name: Kenneth A. Ghazey
Title: Vice President and
Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DORT A. CAMERON III Chairman of the Board September 30, 1998
- ---------------------------------------------------
Dort A. Cameron III
/s/ JOHN A. MCKENNA, JR. President and Director September 30, 1998
- ---------------------------------------------------
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Vice President and Treasurer September 30, 1998
- ---------------------------------------------------
Kenneth A. Ghazey
</TABLE>
II-10
<PAGE> 132
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
ERLANGER LAND CO., INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------
Name: Kenneth A. Ghazey
Title: Vice President and
Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN A. MCKENNA, JR. President and Director September 30, 1998
- ---------------------------------------------------
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Vice President and Treasurer September 30, 1998
- ---------------------------------------------------
Kenneth A. Ghazey
</TABLE>
II-11
<PAGE> 133
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized in the City of Rye Brook, State of New
York, on the 30th day of September, 1998.
FCP TECHNOLOGIES, INC.
By: /s/ KENNETH A. GHAZEY
------------------------------------
Name: Kenneth A. Ghazey
Title: Vice President and
Treasurer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth A. Ghazey and Richard P. Bannon and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DORT A. CAMERON III Chairman of the Board September 30, 1998
- ---------------------------------------------------
Dort A. Cameron III
/s/ JOHN A. MCKENNA, JR. President and Director September 30, 1998
- ---------------------------------------------------
John A. McKenna, Jr.
/s/ KENNETH A. GHAZEY Vice President and Treasurer September 30, 1998
- ---------------------------------------------------
Kenneth A. Ghazey
</TABLE>
II-12
<PAGE> 134
ENTEX INFORMATION SERVICES, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO CHARGED TO
BEGINNING COSTS AND OTHER BALANCE AT
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS DEDUCTIONS END OF PERIOD
- ----------- ---------- ---------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts
1998....................................... $4,746 $ 795 $ -- $(879)(1) $4,662
1997....................................... 4,101 474 -- 171 (1) 4,746
1996....................................... 2,455 2,101 -- (455)(1) 4,101
Vendor receivable reserve
1998....................................... 2,000 1,787 -- -- 3,787
1997....................................... -- 2,000 -- -- 2,000
1996....................................... -- -- -- -- --
</TABLE>
- ---------------
(1) Uncollectible accounts written off, net of recoveries.
S-1
<PAGE> 135
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
+2.1 Agreement and Plan of Reorganization by and between ENTEX
Holdings, Inc. and the Company dated as of June 28, 1996.
+2.2 Agreement and Plan of Merger by and among the Company, ENTEX
Acquisition Corp. and Random Access, Inc. and related
amendment.
+2.3 Agreement and Plan of Reorganization among the Company, EIS
Acquisition Corporation and FCP Technologies, Inc.
+3.1 Certificate of Incorporation of the Company, as amended.
+3.2 Amended and Restated By-Laws of the Company.
3.3 Certificate of Incorporation of ENTEX Information Services
of Michigan, Inc., as amended.
3.4 By-Laws of ENTEX Information Services of Michigan, Inc.
3.5 Amended and Restated Certificate of Incorporation of ENTEX
Information Services of Colorado, Inc.
3.6 By-Laws of ENTEX Information Services of Colorado, Inc.
3.7 Certificate of Incorporation of ENTEX Services, Inc.
3.8 By-Laws of ENTEX Services, Inc.
3.9 Certificate of Incorporation of Erlanger Land Co., Inc.
3.10 By-Laws of Erlanger Land Co., Inc.
3.11 Amended and Restated Certificate of Incorporation of FCP
Technologies, Inc.
3.12 By-Laws of FCP Technologies, Inc.
++4.1 Indenture dated July 29, 1998 by and among the Company, the
guarantors named therein and Marine Midland Bank, as
Trustee.
++4.2 Registration Rights Agreement dated July 29, 1998 by and
among the Company, the guarantors named therein and CIBC
Oppenheimer Corp. and Lazard Freres & Co. LLC, as Initial
Purchasers.
**5.1 Opinion of Cahill Gordon & Reindel as to the legality of the
securities being registered.
+10.1 Form of Indemnification Agreement entered into by the
Company with each of its directors and executive officers.
+10.2 Agreement between John A. McKenna, Jr. and the Company dated
August 7, 1994 and related amendment.
+10.3 Letter Agreement between Kenneth A. Ghazey and the Company
dated January 6, 1997.
+10.4 Retention Agreement between Dale H. Allardyce and the
Company dated November 17, 1997.
+10.5 Retention Agreement between John F. Lyons and the Company
dated November 17, 1997.
+10.6 Letter Agreement between David J. Csira and the Company
dated November 15, 1996.
+10.7 Employment Agreement between Richard Nathanson and the
Company dated July 10, 1996.
+10.8 Stockholders' Agreement among ENTEX Holdings, Inc., Dort A.
Cameron III and ENTEX Associates, L.P. dated December 10,
1993 and related amendments.
+10.9 ENTEX Holdings, Inc. 1996 Stock Option Plan and related
agreements.
+10.10 ENTEX Information Services, Inc. 1996 Stock Option Plan and
related agreements.
+10.11 1996 Performance Incentive Plan and related agreements.
+10.12 1996 Non-Employee Director Stock Plan.
+10.13 ENTEX Management Incentive Plan.
+10.14 Sublease Agreement dated June 6, 1997 between General
Electric Company and the Company and related consent.
+10.15 Lease Agreement dated January 20, 1995 between Royal
Executive Park II and the Company and related amendment.
+10.16 Sublease Agreement dated August 6, 1993 between JWP Inc.,
and the Company and related amendments, consents and lease
agreements.
+10.17 Lease Agreement dated December 31, 1996 between the Company
and Duke Realty Limited Partnership and related amendments.
</TABLE>
<PAGE> 136
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
+10.18 Lease Agreement dated May 15, 1995 between the Company and
Duke Realty Limited Partnership and related amendments.
+10.19 Lease Agreement dated February 29, 1992 between the Company
and 725 C.W. Associates Limited Partnership and related
amendments.
+10.20 Dealer Loan and Security Agreement between FINOVA Capital
Corporation and the Company dated April 21, 1995 and Letter
Agreements dated April 17, 1995 and May 17, 1996.
+10.21 Fourth Amended and Restated Agreement for Wholesale
Financing by and between IBM Credit Corporation and the
Company and related amendments.
+10.22 Warrant Agreement between IBM Credit Corporation, ENTEX
Holdings, Inc. and the Company dated November 15, 1994.
+10.23 Warrant Agreement between IBM Credit Corporation and the
Company dated July 15, 1994.
*10.24 Employment Agreement dated July 1, 1998 by and between the
Company and Dort A. Cameron III.
++10.25 Amendment No. 13 to the Fourth Amended and Restated
Agreement for Wholesale Financing dated July 29, 1998 by and
between the Company and IBM Credit Corporation.
12 Statement re: Computation of Ratio of Earnings and Fixed
Charges.
+21.1 Subsidiaries of the Company.
23.1 Consent of Independent Public Accountants.
**23.2 Consent of Cahill Gordon & Reindel (included in Exhibit
5.1).
24 Powers of Attorney (set forth on the signature page of the
Registration Statement).
**25 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Marine Midland Bank, as Trustee
under the Indenture.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
</TABLE>
- ---------------
+ Incorporated by reference to the exhibits to the Company's Registration
Statement on Form 10 filed on December 3, 1997 and all amendments thereto.
++ Incorporated by reference to the exhibits to the Company's Current Report on
Form 8-K dated August 11, 1998.
* Incorporated by reference to the exhibits to the Company's Annual Report on
Form 10-K dated September 25, 1998.
** To be filed by amendment.
<PAGE> 1
ARTICLES OF INCORPORATION
DOMESTIC PROFIT CORPORATION
These Articles of Incorporation are signed by the incorporator(s) for
the purpose of forming a profit corporation pursuant to the provisions of Act
284, Public Acts of 1972, as amended, as follows:
ARTICLE I
The name of the corporation is COMPU-EASE, INC.
ARTICLE II
The purpose or purposes for which the corporation is organized is to engage in
any activity within the purposes for which corporations may be organized under
the Business Corporation Act of Michigan.
Sale of personal computers
ARTICLE III
The total authorized capital stock is:
1. Common Shares 300,000 Par Value Per Share $1.00
Preferred Shares ____ Par Value Per Share $____
and/or shares without par value as follows
2. Common Shares ____ Stated Value Per Share $____
Preferred Shares ____ Stated Value Per Share $____
3. A statement of all or any of the relative rights, preferences and
limitations of the shares of each class is as follows:
<PAGE> 2
-2-
ARTICLE IV
1. The address of the initial registered office is:
9951 Burgess Court
Union Lake, MI 48085
2. Mailing address of the initial registered office.
Same.
3. The name of the initial resident agent at the registered office is:
David F. Gonynor
ARTICLE V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
NAME RESIDENT OR BUSINESS ADDRESS
- ---- ----------------------------
David F. Gonynor 9951 Burgess Court,
Union Lake, Michigan 48085
ARTICLE VI
When a compromise or arrangement or a plan or reorganization of this
corporation is proposed between this corporation and its creditors or any class
of them or between this corporation and its shareholders or any class of them, a
court of equity jurisdiction within the state, on application of this
corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of a creditors or
class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or a reorganization, agree to a compromise or arrangement or a
reorganization of this corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the
<PAGE> 3
-3-
application has been made, shall be binding on all the creditors or class of
creditors, or on all the shareholders or class of shareholders and also on this
corporation.
ARTICLE VII OPTIONAL
Any action required or permitted by this act to be taken
at an annual or special meeting of shareholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, is signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote thereon were
present and voted.
Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
shareholders who have not consented in writing.
I (We), the incorporator(s) sign my (our) name(s) this
12th day of April, 1983.
/s/ David F. Gonynor
-----------------------------
DAVID F. GONYNOR
<PAGE> 4
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC CORPORATIONS
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982
(nonprofit corporations), the undersigned corporation executes
the following Certificate:
1. The present name of the corporation is: COMPU-EASE, INC.
2. The corporation identification number (CID) assigned by the Bureau is:
240-920.
3. The location of its registered office is:
2055 Franklin
Bloomfield Hills, MI 48302
4. Article I and IV of the Articles of Incorporation is hereby amended to
read as follows:
Article I is hereby amended by deleting the text thereof and
substituting in lieu therefor the following:
"The name of the corporation is ENTEX Information Services of
Michigan, Inc."
Article IV is hereby amended by deleting the text thereof and
substituting in lieu therefor the following:
"The address of the registered office is 1533 North Woodward
Avenue, Suite 330, Bloomfield Hills, Michigan 48304. The name
of the resident agent at the registered office is CSC-Lawyers
Incorporating Service (Company)."
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF
DIRECTORS OR TRUSTEES; OTHERWISE, COMPLETE SECTION (b)
a. [ ] The foregoing amendment to the Articles of Incorporation
was duly adopted on the ____ day of
<PAGE> 5
-2-
________, 19__, in accordance with the provisions of the Act
by the unanimous consent of the incorporator(s) before the
first meeting of the board of directors or trustees.
Signed this ___ day of ___________, 19__.
--------------------- ---------------------
(Signature) (Signature)
--------------------- ---------------------
(Type or Print Name) (Type or Print Name)
b. [x] The foregoing amendment to the Articles of Incorporation was duly
adopted on the 18th day of January, 1995. The amendment: (check one of
the following)
[ ] was duly adopted in accordance with Section 611(2) of the
Act by the vote of the shareholders if a profit corporation
or by the vote of the shareholders or members if a nonprofit
corporation, or by the vote of the directors if a nonprofit
corporation organized on a nonstock directorship basis. The
necessary votes were cast in favor of the amendment.
[ ] was duly adopted by the written consent of all the directors
pursuant to Section 525 of the Act and the corporation is a
nonprofit corporation organized on a nonstock directorship
basis.
[ ] was duly adopted by the written consent of the
shareholders or members having not less than the minimum
number of votes required by statute in accordance with
Section 407(1) and (2) of the Act if a nonprofit
corporation, and Section 407(1) of the Act if a profit
corporation. Written notice to shareholders or member who
have not consented in writing has been given. (Note: Written
consent by less than all of the shareholders or members is
permitted only if such provision appears
<PAGE> 6
-3-
in the Articles of Incorporation.)
[x] was duly adopted by the written consent of all the
shareholders or members entitled to vote in accordance with
Section 407(3) of the Act if a non-profit corporation, and
Section 407 (2) of the Act if a profit corporation.
Signed this 18th day of January, 1995
By /s/ Lynne A. Burgess
-------------------------------------------
(Only signature of: President,
Vice-President, Chairperson and
Vice-Chairperson)
Lynne A. Burgess Vice President
-------------------------------------------
(Type or Print Name) (Type or Print Title)
<PAGE> 1
COMPU-EASE, INC.
A Michigan Corporation
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
1. Shareholders meetings shall be held at the principal place of business
of the corporation in Michigan.
2. The annual meeting of the shareholders shall be held at 9951 Burgess
Court, Union Lake, Michigan, on the 20th of March of each year,
beginning with the year 1984.
3. At the annual meeting of the shareholders a board of not more than five
directors, as the shareholders may determine, shall be selected on one
ballot, with each shareholder entitled to vote as many shares as he
owns times the total number of directors to be elected, divided in any
manner he wishes among the various candidates.
4. Notice of the time and place of the annual meeting shall be sent to
each shareholder of record by first class mail at his address as
recorded on the stock books of the corporation. The notice shall be
mailed at least 15 days prior to the scheduled meeting.
5. A quorum of shareholders at any meeting shall consist of the owners of
a majority of the shares outstanding. If a quorum is present, the
shareholders may adjourn from day to day as they see fit; and no notice
of such adjournment need be given. If a quorum is not present, the
shareholders present in person or by proxy may adjourn to such future
time as shall be agreed upon by them; and notice of such adjournment
shall be mailed to each shareholder at least 15 days before such
adjourned meeting.
6. Special meetings of the shareholders shall be held at the same place as
the annual meetings. Special meetings may be called at any time by the
president, any
<PAGE> 2
-2-
two directors, or the holders of one-tenth of the outstanding shares of
capital stock. The secretary shall mail a notice of such call to each
shareholder of the corporation at least 15 days before such meeting;
and such notice shall state the time, place, and purpose of the
meeting. No business shall be transacted at a special meeting except as
stated in the notice sent to the shareholders, unless by the unanimous
consent of all shareholders, either in person or by proxy.
7. Each shareholder, whether represented in person or by proxy, shall be
entitled to one vote for each share of stock standing in his name on
the books of the company.
8. All proxies shall be in writing and shall be properly signed.
9. The following order of business shall be observed at all annual
meetings and special meetings of shareholders:
a. calling the roll;
b. reading, correcting, and approving the minutes
of the previous meeting;
c. reports of officers;
d. reports of committees;
e. election of directors;
f. unfinished business; and
g. new business.
ARTICLE II. STOCK
1. Certificates of stock shall be in a form adopted by the shareholders
and shall be signed by the president or vice president and the
secretary or treasurer.
2. All certificates shall be numbered consecutively. The name of the
person owning the shares represented thereby, with the number of such
shares and the date of issue, shall be entered upon the company's
books.
3. All certificates of stock transferred by endorsement thereon shall be
surrendered for cancellation and new certificates issued to the
purchaser or assignee.
<PAGE> 3
-3-
4. Shares of stock shall be transferred only on the books of the
corporation by the holder thereof.
ARTICLE III. DIRECTORS
1. The directors shall manage the affairs of the corporation.
2. A vacancy on the Board of Directors by reason of death, resignation, or
other causes may be filled by one of the remaining directors, or the
board may leave the position unfilled, in which case it may be filled
by the shareholders at the next annual meeting. During periods when
there are unfilled vacancies on the Board of Directors, actions taken
by a majority of a quorum of the reduced number shall constitute
actions of the board.
3. The Board of Directors shall meet at least annually, at times and
places to be fixed by the board. Special meetings may be called by the
president or by any two directors giving one day's notice to each
director.
4. The directors shall have the general management and control of the
business and affairs of the corporation and shall exercise all the
powers that may be exercised or performed by the corporation under the
statutes of the State of Michigan, the articles of incorporation and
the corporate by-laws.
5. Directors shall act on all matters by a majority of a quorum; a quorum
shall consist of a majority of the filled directorships.
6. The directors may be compensated for serving as such. Any director may
serve in other capacities with the corporation and receive compensation
for such service, but no director shall participate in setting the
level of his compensation.
7. Any action which might be taken at a meeting of the board may be taken
without a meeting if before or after the said action all members of the
board consent
<PAGE> 4
-4-
thereto in writing. The written consents shall filed with the Minutes
of the proceedings of the board. The consent has the same effect as a
vote of the board for all purposes.
8. The number of directors shall be not more than nine; but the number may
be changed from time to time by the amendment of these By-laws. The
first Board of Directors shall hold office until the first annual
meeting of the shareholders. At the first meeting of the shareholders
and at each annual meeting thereafter, the shareholders shall elect
directors to hold office until the succeeding annual meeting. A
director shall hold office for the term for which he is elected and
until his successor is elected and qualified or until his resignation
or removal.
ARTICLE IV. OFFICERS
1. The officers of the corporation shall consist of a president, a vice
president, a secretary, and a treasurer, and such other officers as
shall from time to time be chosen and appointed by the Board of
Directors, and any two offices may be combined and held by one
individual.
2. The president shall preside at all meetings of the directors and
shareholders and shall have general charge of and control over the
affairs of the corporation subject to the Board of Directors.
3. The vice-president shall perform such duties as may be assigned to him
by the president or the Board of Directors. In case of the death,
disability or absence of the president, he shall perform and be vested
with all the duties and powers of the president.
4. The secretary shall countersign all company stock certificates unless
he also holds the office of president. He shall keep a record of the
minutes of the proceedings of the shareholders and directors and shall
give notice as required in these By-Laws of all such meetings. He shall
have custody of all books, records, and papers of the company, except
such as shall be in the charge of the treasurer or of some
<PAGE> 5
-5-
other person authorized to have custody and possession thereof by a
resolution of the Board of Directors.
5. The treasurer shall keep accounts of all moneys of the corporation
received or disbursed, and shall deposit all moneys and valuables in
the name of and the credit of the corporation in the banks and
depositories as the Board of Directors shall designate. Checks against
company accounts shall be signed as directed by the Board of Directors.
6. The salaries of all officers shall be fixed by the Board of Directors
and may be changed from time to time by a majority vote of the Board.
The Board shall also fix the salaries of officer-directors by a
majority vote of disinterested directors.
ARTICLE V. TAKING ACTION
1. The shareholders, directors, or executive committee may take actions
either by motion or by resolution.
2. Motions are directions and actions affecting the corporation and those
involved in its operation. In the case of the shareholders' meetings
and the directors' meetings, motions shall be informally paraphrased in
the minutes of the meetings.
3. Resolutions are more formal orders usually affecting outsiders.
Resolutions are to be reported word for word in the minutes of
whichever group's meeting is involved. Names of those voting for and
against resolutions shall be reported, unless the vote is unanimous. A
copy of resolutions presented for consideration shall be provided by
the secretary to be used in reporting the minutes.
ARTICLE VI. FISCAL YEAR
1. The books of the corporation shall be closed on December 31 each year.
The books shall be kept on the accrual basis with such modifications as
the Board may direct.
<PAGE> 6
-6-
2. Within 75 days after the fiscal closing, the treasurer shall provide
each shareholder with a financial statement for the corporation
consisting of a statement of financial conditions and a statement of
the results of its operations for the period ending on the closing
date.
ARTICLE VII. AMENDMENTS
1. Any of these By-Laws may be amended or repealed by a majority vote of
the stockholders at any annual meeting or at any special meeting called
for that purpose.
/s/ Sadie Gonynor
-----------------
SADIE GONYNOR
Corporate Secretary
Adopted: July 7, 1983
<PAGE> 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENTEX INFORMATION SERVICES OF COLORADO, INC.
ENTEX Information Services of Colorado, Inc., a corporation
organized under the laws of the state of Colorado, does hereby certify as
follows:
1: The name of the corporation is ENTEX Information Services of
Colorado, Inc. (the "Corporation").
2: This Amended and Restated Certificate of Incorporation restates,
integrates, amends and supersedes the Corporation's Certificate of
Incorporation, as heretofore amended or supplemented (the "Certificate of
Incorporation"), and was duly adopted in accordance with the provisions of
Sections 7-110-103 and 7-110-107 of the Colorado Business Corporation Act. The
number of votes cast by each voting group of shareholders entitled to vote
separately on the amendments contained herein was sufficient for approval by
that voting group.
3: The text of the Certificate of Incorporation are amended and
restated hereby to read as herein set forth in full:
FIRST: The name of the corporation is ENTEX INFORMATION SERVICES OF
COLORADO, INC. (the "Corporation").
SECOND: The total number of shares of capital stock which the
Corporation shall have authority to issue is One Thousand (1,000) shares of
common stock, par value $.0001 per share.
THIRD: The address of its registered office in the State of Colorado
is One Civic Center Plaza, 1560 Broadway, Denver, Colorado 80202 and the name
and address of its registered agent is CORPORATION SERVICE COMPANY, One Civic
Center Plaza, 1560 Broadway, Denver, Colorado 80202.
FOURTH: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the Colorado Business Corporation Act.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: Cumulative voting of shares of stock of the Corporation shall
not be allowed or authorized in the election of the Board of Directors of the
Corporation.
SEVENTH: The Board of Directors is expressly authorized to make,
alter or repeal the By-Laws of the Corporation.
<PAGE> 2
-2-
EIGHTH: No director of this Corporation shall be personally liable
to the Corporation or to its shareholders for monetary damages for breach of
fiduciary duty as a director except as expressly provided in Section 7-109-102
of the Colorado Business Corporation Act or any other present or future
provision of Colorado law. It is the intention of this Article EIGHTH to limit
the liability of directors of this Corporation to the fullest extent permitted
by Colorado law.
NINTH: The Corporation shall indemnify to the full extent authorized
by law any person made or threatened to be made a party to an action or
proceeding whether criminal, civil, administrative or investigative, by reason
of the fact that he, his testator or intestate is or was a director, officer,
employee or agent of the Corporation or serves or served any other enterprise as
a director or officer at the request of the Corporation or any predecessor of
the Corporation. The Corporation shall pay and advance expenses to directors and
officers for matters covered by indemnification to the full extent permitted by
such law, and may similarly pay and advance expenses for employees and agents.
This Article NINTH shall not exclude any other indemnification or other rights
to which any party may be entitled in any manner.
TENTH: The Corporation reserves the right to amend or repeal any
provisions contained in this Certificate of Incorporation from time to time and
at any time in the manner now or hereafter prescribed by the law of the State of
Colorado, and all rights herein conferred upon shareholders, directors and
officers are subject to this reserved power.
IN WITNESS WHEREOF, the undersigned, does hereby certify that the
facts hereinabove stated are truly set forth and, accordingly, hereby executes
this Amended and Restated Certificate of Incorporation this 25th day of
September, 1998.
/s/ Michael G. Archambault
-------------------------------------
Michael G. Archambault
Vice President
<PAGE> 1
BYLAWS
OF
RANDOM ACCESS, INC.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I - OFFICES............................................................................. 1
1.1 Business Office.................................................... 1
1.2 Registered Office.................................................. 1
ARTICLE II - SHARES AND TRANSFER THEREOF........................................................ 1
2.1 Regulation......................................................... 1
2.2 Certificates for Shares............................................ 2
2.3 Cancellation of Certificates....................................... 3
2.4 Lost, Stolen or Destroyed Certificates............................. 3
2.5 Transfer of Shares................................................. 4
2.6 Transfer Agent..................................................... 5
2.7 Close of Transfer Book and Record Date............................. 6
2.8 Shares without Certificates........................................ 7
ARTICLE III - SHAREHOLDERS AND MEETINGS THEREOF................................................. 8
3.1 Shareholders of Record............................................. 8
3.2 Meetings........................................................... 8
3.3 Annual Meeting..................................................... 8
3.4 Special Meetings................................................... 9
3.5 Court Ordered Meeting.............................................. 9
3.6 Notice............................................................. 10
3.7 Meeting of all Shareholders........................................ 11
3.8 Voting Record...................................................... 12
3.9 Quorum............................................................. 13
3.10 Manner of Acting................................................... 13
3.11 Proxies............................................................ 13
3.12 Voting of Shares................................................... 14
3.13 Voting of Shares by Certain Holders................................ 14
3.14 Informal Action by Shareholders.................................... 17
3.15 Voting by Ballot................................................... 18
3.16 Cumulative Voting.................................................. 18
3.17 Waiver of Notice................................................... 18
ARTICLE IV - DIRECTORS, POWERS AND MEETINGS..................................................... 19
4.1 Board of Directors................................................. 19
4.2 General Powers..................................................... 20
4.3 Performance of Duties.............................................. 20
4.4 Regular Meetings................................................... 21
4.5 Special Meetings................................................... 22
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
4.6 Notice............................................................. 22
4.7 Participation by Electronic Means.................................. 23
4.8 Quorum and Manner of Acting........................................ 24
4.9 Organization....................................................... 24
4.10 Presumption of Assent.............................................. 24
4.11 Informal Action By Directors....................................... 25
4.12 Vacancies.......................................................... 26
4.13 Compensation....................................................... 26
4.14 Removal of Directors............................................... 27
4.15 Resignation........................................................ 27
ARTICLE V - OFFICERS............................................................................ 27
5.1 Number............................................................. 27
5.2 Election and Term of Office........................................ 28
5.3 Removal............................................................ 28
5.4 Vacancies.......................................................... 28
5.5 Powers............................................................. 29
5.6 Compensation....................................................... 33
5.7 Bonds.............................................................. 33
ARTICLE VI - DIVIDENDS.......................................................................... 34
ARTICLE VII - FINANCE........................................................................... 34
7.1 Reserve Fund....................................................... 34
7.2 Banking............................................................ 34
ARTICLE VIII - CONTRACTS, LOANS AND CHECKS...................................................... 35
8.1 Execution of Contracts............................................. 35
8.2 Loans.............................................................. 35
8.3 Checks............................................................. 36
8.4 Deposits........................................................... 36
ARTICLE IX - FISCAL YEAR........................................................................ 36
ARTICLE X - CORPORATE SEAL...................................................................... 37
ARTICLE XI - AMENDMENTS......................................................................... 37
ARTICLE XII - EXECUTIVE COMMITTEE............................................................... 37
12.1 Appointment........................................................ 37
12.2 Authority.......................................................... 38
12.3 Tenure and Qualifications.......................................... 39
12.4 Meetings........................................................... 39
12.5 Quorum............................................................. 39
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
12.6 Informal Action by Executive Committee............................. 40
12.7 Vacancies.......................................................... 40
12.8 Resignations and Removal........................................... 40
12.9 Procedure.......................................................... 40
ARTICLE XIII - EMERGENCY BYLAWS................................................................. 41
CERTIFICATE..................................................................................... 43
</TABLE>
-iii-
<PAGE> 5
ARTICLE I
OFFICES
1.1 Business Office. The principal office and place of business of
the corporation in the State of Colorado shall be at 8000 East Iliff Avenue,
Denver, Colorado 80231. Other offices and places of business may be established
from time to time by resolution of the Board of Directors or as the business of
the corporation may require.
1.2 Registered Office. The registered office of the corporation,
required by the Colorado Corporation Code to be maintained in the State of
Colorado, may be, but need not be, identical with the principal office in the
State of Colorado, and the address of the registered office may be changed from
time to time by the Board of Directors.
ARTICLE II
SHARES AND TRANSFER THEREOF
2.1 Regulation. The Board of Directors may make such rules and
regulations as it may deem appropriate concerning the issuance, transfer and
registration of certificates for shares of the corporation, including the
appointment of transfer agents and registrars.
<PAGE> 6
-2-
2.2 Certificates for Shares. The shares of the corporation may, but
need not be represented by certificates. Unless the Colorado Corporation Code or
another law expressly provides otherwise, the fact that the shares are not
represented by certificates shall have no effect on the rights and obligations
of shareholders.
Certificates representing shares of the corporation shall be
respectively numbered serially for each class of shares, or series thereof, as
they are issued, shall be impressed with the corporate seal or a facsimile
thereof, and shall be signed by the Chairman or Vice-Chairman of the Board of
Directors or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or by the Secretary or an Assistant Secretary; provided that
such signatures may be a facsimile if the certificate is countersigned by a
transfer agent, or registered by a registrar, both of which may be the
corporation itself or its employee. Each certificate shall state the name of the
corporation, the fact that the corporation is organized or incorporated under
the laws of the State of Colorado, the name of the person to whom issued, the
date of issue, the class (or series of any class), the number of shares
represented thereby and the par value of the shares represented thereby or a
statement that such shares are without par value. A statement of the
designations, preferences, qualifications, limitations, re-
<PAGE> 7
-3-
strictions and special or relative rights of the shares of each class shall be
set forth in full or summarized on the face or back of the certificates which
the corporation shall issue, or in lieu thereof, the certificate may set forth
that such a statement or summary will be furnished to any shareholder upon
request without charge. Each certificate shall be otherwise in such form as may
be prescribed by the Board of Directors and as shall conform to the rules of any
stock exchange on which the shares may be listed.
The corporation may issue certificates representing fractional
shares and may make transfers creating a fractional interest in a share of
stock. The corporation may issue scrip in lieu of any fractional shares, such
scrip to have terms and conditions specified by the Board of Directors.
2.3 Cancellation of Certificates. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificates shall be
issued in lieu thereof until the former certificate for a like number of shares
shall have been surrendered and canceled, except as herein provided with respect
to lost, stolen or destroyed certificates.
2.4 Lost, Stolen or Destroyed Certificates. Any shareholder claiming
that his certificate for shares is lost, stolen or destroyed may make an
affidavit or affirmation of the fact
<PAGE> 8
-4-
and lodge the same with the Secretary of the corporation, accompanied by a
signed application for a new certificate. Thereupon, and upon the giving of a
satisfactory bond of indemnity to the corporation not exceeding an amount double
the value of the shares as represented by such certificate (the necessity for
such bond and the amount required to be determined by the President and
Treasurer of the corporation), a new certificate may be issued of the same tenor
and representing the same number, class and series of shares as were represented
by the certificate alleged to be lost, stolen or destroyed.
2.5 Transfer of Shares. Subject to the terms of any shareholder
agreement relating to the transfer of shares or other transfer restrictions
contained in the Articles of Incorporation or authorized therein, shares of the
corporation shall be transferable on the books of the corporation by the holder
thereof in person or by his duly authorized attorney, upon the surrender and
cancellation of a certificate or certificates for a like number of shares. Upon
presentation and surrender of a certificate for shares properly endorsed and
payment of all taxes therefor, the transferee shall be entitled to a new
certificate or certificates in lieu thereof. As against the corporation, a
transfer of shares can be made only on the books of the corporation and in the
manner hereinabove provided, and the corporation shall be entitled to treat the
holder of record of
<PAGE> 9
-5-
any share as the owner thereof and shall not be bound to recognize any equitable
or other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, save as expressly
provided by the statutes of the State of Colorado.
2.6 Transfer Agent. Unless otherwise specified by the Board of
Directors by resolution, the Secretary of the corporation shall act as transfer
agent of the certificates representing the shares of stock of the corporation.
He shall maintain a stock transfer book, the stubs in which shall set forth
among other things, the names and addresses of the holders of all issued shares
of the corporation, the number of shares held by each, the certificate numbers
representing such shares, the date of issue of the certificates representing
such shares, and whether or not such shares originate from original issue or
from transfer. Subject to Section 3.8, the names and addresses of the
shareholders as they appear on the stubs of the stock transfer book shall be
conclusive evidence as to who are the shareholders of record and as such
entitled to receive notice of the meetings of shareholders; to vote at such
meetings; to examine the list of the shareholders entitled to vote at meetings;
to receive dividends; and to own, enjoy and exercise any other property or
rights deriving from such shares against the corporation. Each shareholder shall
be responsible for notify-
<PAGE> 10
-6-
ing the Secretary in writing of any change in his name or address and failure so
to do will relieve the corporation, its directors, officers and agents, from
liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other than
the name and address appearing on the stub of the stock transfer book.
2.7 Close of Transfer Book and Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders, or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period, but not to exceed, in any
case, fifty days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of, or to vote at a meeting of
shareholders, such books shall be closed for at least ten days immediately
preceding such meeting. In lieu of closing the stock transfer books, the Board
of Directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than fifty
days and, in case of a meeting of shareholders, not less than ten days prior to
the date on which the particular
<PAGE> 11
-7-
action requiring such determination of shareholders is to be taken. If the stock
transfer books are not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the Board
of Directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
2.8 Shares Without Certificates.
(A) Unless provided otherwise in these Bylaws or in the
corporation's Articles of Incorporation, the Board of Directors may
authorize the issuance of any of the corporation's classes or series of shares
without certificates. Such authorization shall not affect shares already
represented by certificates until they are surrendered to the corporation.
(B) Within a reasonable time following the issue or
transfer of shares without certificates, the corporation shall send the
shareholder a complete written statement of the information required by Section
2.2 hereof to be on certificates.
<PAGE> 12
-8-
ARTICLE III
SHAREHOLDERS AND MEETINGS THEREOF
3.1 Shareholders of Record. Only shareholders of record on the books
of the corporation shall be entitled to be treated by the corporation as holders
in fact of the shares standing in their respective names, and the corporation
shall not be bound to recognize any equitable or other claim to, or interest in,
any shares on the part of any other person, firm or corporation, whether or not
it shall have express or other notice thereof, except as expressly provided by
the laws of Colorado.
3.2 Meetings. Meetings of shareholders shall be held at the
principal office of the corporation, or at such other place, either within or
without the State of Colorado, as specified from time to time by the Board of
Directors. If the Board of Directors shall specify another location such change
in location shall be recorded on the notice calling such meeting.
3.3 Annual Meeting. The annual meeting of shareholders of the
corporation for the election of directors, and for the transaction of such other
business as may properly come before the meeting shall be held within eleven
months of the close of the corporation's accounting and tax year, pursuant to
resolu-
<PAGE> 13
-9-
tion of the Board of Directors. If the election of Directors shall not be held
on the day designated herein for any annual meeting of the shareholders, the
Board of Directors shall cause the election to be held at a special meeting of
the shareholders as soon thereafter as may be convenient. Failure to hold the
annual meeting at the designated time shall not work a forfeiture or dissolution
of the corporation.
3.4 Special Meetings. Special meetings of shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the President, the Board of Directors, or the holders of not less than one-tenth
of all the shares entitled to vote at the meeting.
3.5 Court Ordered Meeting.
(A) Any court of competent jurisdiction in the State of Colorado
may summarily order a meeting to be held:
(1) On application of any shareholder of the corporation if an
annual meeting was not held within six months after the end of the corporation's
fiscal year or fifteen months after its last annual meeting, whichever is
earlier; or
(2) On application of a shareholder who participated in a proper
call for a special meeting if (i) notice of the special meeting was not given
within thirty days after
<PAGE> 14
-10-
the date the demand was delivered to the corporation's Secretary; or (ii) the
special meeting was not held in accordance with the notice.
(B) The court may fix the time and place of the meeting, specify
a record date for determining shareholders entitled to notice of and to vote at
the meeting, prescribe the form and content of the meeting notice, fix the
quorum required for the meeting or direct that the votes represented at the
meeting constitute a quorum for the meeting, and enter other orders necessary to
permit the meeting to be held.
3.6 Notice.
(A) Written notice stating the place, day and hour of the
meeting of shareholders and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered unless otherwise
prescribed by statute not less than ten days nor more than fifty days before the
date of the meeting, either personally or by mail, by or at the direction of the
President, the Secretary, or the officer or person calling the meeting to each
shareholder of record entitled to vote at such meeting; except that, if the
authorized shares are to be increased, at least thirty days' notice shall be
given, and if the sale of all or substantially all of the corpora-
<PAGE> 15
-11-
tion's assets is to be voted upon, at least twenty days' notice shall be given.
(B) Notice to shareholders of record, if mailed, shall be deemed
delivered as to any shareholder of record, when deposited in the United States
mail, addressed to the shareholder at his address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid. If three
successive letters mailed to the last-known address of any shareholder of record
are returned as undeliverable, no further notices to such shareholder shall be
necessary until another address for such shareholder is made known to the
corporation.
(C) When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
3.7 Meeting of all Shareholders. If all of the shareholders shall meet
at any time and place, either within or
<PAGE> 16
-12-
without the State of Colorado, and consent to the holding of a meeting at such
time and place, such meeting shall be valid without call or notice, and at such
meeting any corporate action may be taken.
3.8 Voting Record. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten days
before such meeting of shareholders, a complete record of the shareholders
entitled to vote at each meeting of shareholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each. The record, for a period of ten days prior to such meeting, shall
be kept on file at the principal office of the corporation, whether within or
without the State of Colorado, and shall be subject to inspection by any
shareholder for any purpose germane to the meeting at any time during usual
business hours. Such record shall be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
during the whole time of the meeting for the purposes thereof.
The original stock transfer books shall be the prima facie evidence as
to who are the shareholders entitled to examine the record or transfer books or
to vote at any meeting of shareholders.
<PAGE> 17
-13-
3.9 Quorum. A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at any meeting of shareholders, except as otherwise provided by the Colorado
Corporation Code and the Articles of Incorporation. In the absence of a quorum
at any such meeting, a majority of the shares so represented may adjourn the
meeting from time to time for a period not to exceed sixty days without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
3.10 Manner of Acting. If a quorum is present, the affirmative vote of
a majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders, unless the vote of a
greater proportion or number or voting by classes is otherwise required by
statute or by the Articles of Incorporation or these Bylaws.
3.11 Proxies. At all meetings of shareholders a shareholder may vote in
person or by proxy executed in writing by the shareholder or by his duly
authorized attorney-in-fact.
<PAGE> 18
-14-
Such proxy shall be filed with the Secretary of the corporation before or at the
time of the meeting. No proxy shall be valid after eleven months from the date
of its execution, unless otherwise provided in the proxy.
3.12 Voting of Shares. Unless otherwise provided by these Bylaws or the
Articles of Incorporation, each outstanding share entitled to vote shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders, and each fractional share shall be entitled to a corresponding
fractional vote on each such matter.
3.13 Voting of Shares by Certain Holders.
(A) If shares or other securities having voting power stand of
record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety, or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, voting with respect to the shares shall have the
following effect:
(1) If only one person votes, his act binds all;
(2) If two or more persons vote, the act of the majority so
voting binds all;
<PAGE> 19
-15-
(3) If two or more persons vote, but the vote is evenly split on
any particular matter, each faction may vote the securities in question
proportionately, or any person voting the shares of a beneficiary, if any, may
apply to any court of competent jurisdiction in the State of Colorado to appoint
an additional person to act with the persons so voting the shares. The shares
shall then be voted as determined by a majority of such persons and the person
appointed by the court. If a tenancy is held in unequal interests, a majority or
even split for the purpose of this subparagraph (3) shall be a majority or even
split in interest.
The effects of voting stated in paragraph (A) of this Section 3.13
shall not be applicable if the Secretary of the corporation is given written
notice of alternate voting provisions and is furnished with a copy of the
instrument or order wherein the alternate voting provisions are stated.
(B) Shares standing in the name of another corporation may be
voted by such officer, agent or proxy as the bylaws of such corporation may
prescribe, or, in the absence of such provision, as the board of directors of
such other corporation may determine.
(C) Shares standing in the name of a deceased person, a minor
ward or an incompetent person, may be voted by his
<PAGE> 20
-16-
administrator, executor, court appointed guardian or conservator, either in
person or by proxy without a transfer of such shares into the name of such
administrator, executor, court appointed guardian or conservator. Shares
standing in the name of a trustee may be voted by him, either in person or by
proxy, but no trustee shall be entitled to vote shares held by him without a
transfer of such shares into his name.
(D) Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
(E) A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(F) Neither shares of its own stock belonging to this
corporation, nor shares of its own stock held by it in a fiduciary capacity, nor
shares of its own stock held by another corporation if the majority of shares
entitled to vote for the election of directors of such corporation is held by
this corporation may be voted, directly or indirectly, at any meeting
<PAGE> 21
-17-
and shall not be counted in determining the total number of outstanding shares
at any given time.
(G) Redeemable shares which have been called for redemption
shall not be entitled to vote on any matter and shall not be deemed outstanding
shares on and after the date on which written notice of redemption has been
mailed to shareholders and a sum sufficient to redeem such shares has been
deposited with a bank or trust company with irrevocable instruction and
authority to pay the redemption price to the holders of the shares upon
surrender of certificates therefor.
3.14 Informal Action by Shareholders.
(A) Any action required or permitted to be taken at a meeting of
the shareholders may be taken without a meeting if the action is evidenced by
one or more written consents describing the action taken, signed by each
shareholder entitled to vote and delivered to the Secretary of the corporation
for inclusion in the minutes or for filing with the corporate records. Action
taken under this subsection (A) is effective when all shareholders entitled to
vote have signed the consent, unless the consent specifies a different effective
date.
<PAGE> 22
-18-
(B) Written consent of the shareholders entitled to vote has the
same force and effect as an unanimous vote of such shareholders and may be
stated as such in any document.
(C) The record date for determining shareholders entitled to
take action without a meeting is the date the first shareholder signs the
consent under subsection (A) of this section.
3.15 Voting by Ballot. Voting on any question or in any election may
be by voice vote unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
3.16 Cumulative Voting. No shareholder shall be permitted to cumulate
his votes.
3.17 Waiver of Notice.
(A) When any notice is required to be given to any shareholder
of the corporation under the provisions of the Colorado Corporation Code or
under the provisions of the Articles of Incorporation or Bylaws of the
corporation, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated herein, shall be equivalent
to the giving of such notice.
<PAGE> 23
-19-
(B) By attending a meeting, a shareholder:
(1) Waives objection to lack of notice or defective notice
of such meeting unless the shareholder, at the beginning of the meeting objects
to the holding of the meeting or the transacting of business at the meeting;
(2) Waives objection to consideration at such meeting of a
particular matter not within the purpose or purposes described in the meeting
notice unless the shareholder objects to considering the matter when it is
presented.
ARTICLE IV
DIRECTORS, POWERS AND MEETINGS
4.1 Board of Directors. The business and affairs of the corporation
shall be managed by a board of five to seven directors (as further specified by
resolution of the board of directors) who shall be natural persons of at least
18 years of age but who need not be shareholders of the corporation or residents
of the State of Colorado and who shall be elected at the annual meeting of
shareholders or some adjournment thereof. Directors shall hold office until the
next succeeding annual meeting of shareholders and until their successors shall
have been elected and shall qualify. The Board of Directors may increase or
decrease, to not less than three, the number of di-
<PAGE> 24
-20-
rectors by resolution; except that there need only be as many directors as there
are shareholders in the event that the outstanding shares are held of record by
fewer than three shareholders.
4.2 General Powers. The business and affairs of the corporation shall
be managed by the Board of Directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders. The directors shall pass upon any and all
bills or claims of officers for salaries or other compensation and, if deemed
advisable, shall contract with officers, employees, directors, attorneys,
accountants, and other persons to render services to the corporation.
4.3 Performance of Duties. A director of the corporation shall perform
his duties as a director, including his duties as a member of any committee of
the board upon which he may serve, in good faith, in a manner he reasonably
believes to be in the best interests of the corporation, and with such care as
an ordinarily prudent person in a like position would use under similar
circumstances. In performing his duties, a director shall be entitled to rely on
information, opinions, reports, or statements, including financial statements
and other
<PAGE> 25
-21-
financial data, in each case prepared or presented by persons and groups listed
in paragraphs (A), (B), and (C) of this Section 4.3; but he shall not be
considered to be acting in good faith if he has knowledge concerning the matter
in question that would cause such reliance to be unwarranted. A person who so
performs his duties shall not have any liability by reason of being or having
been a director of the corporation. Those persons and groups on whose
information, opinions, reports, and statements a director is entitled to rely
upon are:
(A) One or more officers or employees of the corporation whom
the director reasonably believes to be reliable and competent in the matters
presented;
(B) Counsel, public accountants, or other persons as to matters
which the director reasonably believes to be within such persons' professional
or expert competence; or
(C) A committee of the board upon which he does not serve, duly
designated in accordance with the provisions of the Articles of Incorporation or
the Bylaws, as to matters within its designated authority, which committee the
director reasonably believes to merit confidence.
4.4 Regular Meetings. A regular, annual meeting of the Board of
Directors shall be held at the same place as, and im-
<PAGE> 26
-22-
mediately after, the annual meeting of shareholders, and no notice shall be
required in connection therewith. The annual meeting of the Board of Directors
shall be for the purpose of electing officers and the transaction of such other
business as may come before the meeting. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of Colorado,
for the holding of additional regular meetings without other notice than such
resolution.
4.5 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President, Chief Executive Officer,
Treasurer, Secretary or any two directors. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the State of Colorado, as the place for holding any special meeting
of the Board of Directors called by them.
4.6 Notice. Written notice of any special meeting of directors shall be
given as follows:
(A) By mail to each director at his business address at least two
days prior to the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, so addressed, with postage
thereon prepaid; or
<PAGE> 27
-23-
(B) By personal delivery, facsimile transmission, telephone call,
or telegram at least twenty-four hours prior to the meeting to the business
address of each director, or in the event such notice is given on a Saturday,
Sunday or holiday, to the residence address of each director. If notice be given
by telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company.
When any notice is required to be given to any director pursuant to
these Bylaws, the Articles of Incorporation or law, a waiver thereof in writing
signed by the persons entitled to such notice, whether before, at or after the
time stated therein, shall be equivalent to the giving of such notice. By
attending or participating in a regular or special meeting, a director waives
any required notice of such meeting unless the director, at the beginning of the
meeting, objects to the holding of the meeting or the transacting of business
thereat.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
4.7 Participation by Electronic Means. Except as may be otherwise
provided by the Articles of Incorporation or Bylaws, members of the Board of
Directors or any committee desig-
<PAGE> 28
-24-
nated by such Board may participate in a meeting of the Board or committee by
means of conference telephone or similar communications equipment by which all
persons participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting.
4.8 Quorum and Manner of Acting. A quorum at all meetings of the Board
of Directors shall consist of a majority of the number of directors then holding
office, but a smaller number may adjourn from time to time without further
notice, until a quorum is secured. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, unless the act of a greater number is required by the laws of the
State of Colorado or by the Articles of Incorporation or these Bylaws.
4.9 Organization. The Board of Directors shall elect a chairman from
among the directors to preside at each meeting of the Board of Directors and at
all meetings of the stockholders. The Board of Directors shall elect a Secretary
to record the discussions and resolutions of each meeting.
4.10 Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken is deemed to have assented to the
action taken unless:
<PAGE> 29
-25-
(A) He objects at the beginning of such meeting to the holding of the
meeting or the transacting of business at the meeting;
(B) He contemporaneously requests that his dissent from the action
taken be entered in the minutes of such meeting; or
(C) He gives written notice of his dissent to the presiding officer of
such meeting before its adjournment or to the Secretary of the corporation
immediately after adjournment of such meeting.
The right of dissent as to a specific action taken in a meeting of the
Board of Directors or a committee of the Board of Directors is not available to
a director who votes in favor of such action.
4.11 Informal Action By Directors. Any action required or permitted to
be taken at a meeting of the Board of Directors or any committee designated by
said Board of Directors may be taken without a meeting if the action is
evidenced by one or more written consents describing the action taken, signed by
each director or committee member, and delivered to the Secretary for inclusion
in the minutes or for filing with the corporate records. Action taken under this
section is effective
<PAGE> 30
-26-
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date. Such consent has the same force
and effect as an unanimous vote of the directors or committee members and may be
stated as such in any document.
4.12 Vacancies. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors though
less than a quorum of the Board of Directors. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office,
and shall hold such office until his successor is duly elected and shall
qualify. Any directorship to be filled by reason of an increase in the number of
directors shall be filled by the affirmative vote of a majority of the directors
then in office or by an election at an annual meeting, or at a special meeting
of shareholders called for that purpose. A director chosen to fill a position
resulting from an increase in the number of directors shall hold office only
until the next election of directors by the shareholders.
4.13 Compensation. By resolution of the Board of Directors and
irrespective of any personal interest of any of the members, each director may
be paid his expenses, if any, of attendance at each meeting of the Board of
Directors, and may be
<PAGE> 31
-27-
paid a stated salary as director or a fixed sum for attendance at each meeting
of the Board of Directors or both. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
4.14 Removal of Directors. Any director or directors of the corporation
may be removed at any time, with or without cause, in the manner provided in the
Colorado Corporation Code.
4.15 Resignations. A director of the corporation may resign at any time
by giving written notice to the Board of Directors, President or Secretary of
the corporation. The resignation shall take effect upon the date of receipt of
such notice, or at such later time specified therein. The acceptance of such
resignation shall not be necessary to make it effective, unless the resignation
requires such acceptance to be effective.
ARTICLE V
OFFICERS
5.1 Number. The officers of the corporation shall be a President, a
Secretary, and a Treasurer, each of whom shall be natural persons of the age of
eighteen years or older and who shall be elected by the Board of Directors. Such
other officers and assistant officers as may be deemed necessary may be
<PAGE> 32
-28-
elected or appointed by the Board of Directors. Any two or more offices may be
held by the same person, except the offices of President and Secretary.
5.2 Election and Term of Office. The officers of the corporation to be
elected by the Board of Directors shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after the annual
meeting of the shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as practicable.
Each officer shall hold office until his successor shall have been duly elected
and shall have qualified or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided.
5.3 Removal. Any officer or agent may be removed by the Board of
Directors with or without cause whenever in its judgment the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors
for the unexpired portion
<PAGE> 33
-29-
of the term. In the event of absence or inability of any officer to act, the
Board of Directors may delegate the powers or duties of such officer to any
other officer, director or person whom it may select.
5.5 Powers. The officers of the corporation shall exercise and perform
the respective powers, duties and functions as are stated below, and as may be
assigned to them by the Board of Directors.
(A) Chief Executive Officer. The Chief Executive Officer shall
be the chief executive officer of the corporation and, subject to the control of
the Board of Directors, shall have general supervision, direction and control
over all the business and affairs of the corporation and of the corporation's
other officers. The Chief Executive Officer shall, when present, and in the
absence of the Chairman of the Board, preside at all meetings of the
shareholders and of the Board of Directors. The Chief Executive Officer shall
have the authority to execute contracts, agreements, deeds, mortgages, bonds and
other instruments which the Board of Directors has authorized to be executed,
and in general shall perform all duties incident to the position of chief
executive officer and such other duties as may be prescribed by the Board of
Directors from time to time.
<PAGE> 34
-30-
(B) President. The President shall be the chief operating
officer of the corporation and, subject to the control of the Chief Executive
Officer and the Board of Directors, shall have general supervision, direction
and control over all of the business and affairs of the corporation. The
President may sign, with the Secretary or any other proper officer of the
corporation authorized by the Board of Directors, certificates for shares of the
corporation and deeds, mortgages, bonds, contracts, or other instruments which
the Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the corporation,
or shall be required by law to be otherwise signed or executed; and in general
shall perform all duties incident to the position of chief operating officer and
such other duties as may be prescribed by the Chief Executive Officer and the
Board of Directors from time to time.
(C) Vice President. If elected or appointed by the Board of
Directors, the Vice President (or in the event there is more than one Vice
President, the Vice Presidents in the order designated by the Board of
Directors, or in the absence of any designation, then in the order of their
election) shall, in the absence of the President or in the event of his death,
inability or refusal to act, perform all duties of the President,
<PAGE> 35
-31-
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign, with the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certificates for shares of the corporation; and shall perform such other duties
as from time to time may be assigned to him by the President or by the Board of
Directors.
(D) Secretary. The Secretary shall: keep the minutes of the
proceedings of the shareholders and of the Board of Directors in one or more
books provided for that purpose; see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; keep a
register of the post office address of each shareholder which shall be furnished
to the Secretary by such shareholder; sign with the Chairman or Vice Chairman of
the Board of Directors, or the President, or a Vice President, certificates for
shares of the corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; have general charge of the stock transfer
books of the corporation; and in general perform all duties incident to the
office of Secretary and such other duties as from
<PAGE> 36
-32-
time to time may be assigned to him by the President or by the Board of
Directors.
(E) Assistant Secretary. The Assistant Secretary, when
authorized by the Board of Directors, may sign with the Chairman or Vice
Chairman of the Board of Directors or the President or a Vice President
certificates for shares of the corporation the issuance of which shall have been
authorized by a resolution of the Board of Directors. An Assistant Secretary, at
the request of the Secretary, or in the absence or disability of the Secretary,
also may perform all of the duties of the Secretary. An Assistant Secretary
shall perform such other duties as may be assigned to him by the President or by
the Secretary.
(F) Treasurer. The Treasurer shall: have charge and custody of
and be responsible for all funds and securities of the corporation; receive and
give receipts for monies due and payable to the corporation from any source
whatsoever, and deposit all such monies in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of these Bylaws; and keep accurate books of accounts of the
corporation's transactions, which shall be the property of the corporation, and
shall render financial reports and statements of condition of
<PAGE> 37
-33-
the corporation when so requested by the Board of Directors or President. The
Treasurer shall perform all duties commonly incident to his office and such
other duties as may from time to time be assigned to him by the President or the
Board of Directors. In the absence or disability of the President and
Vice-President or Vice-Presidents, the Treasurer shall perform the duties of the
President.
(G) Assistant Treasurer. An Assistant Treasurer may, at the
request of the Treasurer, or in the absence or disability of the Treasurer,
perform all of the duties of the Treasurer. He shall perform such other duties
as may be assigned to him by the President or by the Treasurer.
5.6 Compensation. All officers of the corporation may receive salaries
or other compensation if so ordered and fixed by the Board of Directors. The
Board shall have authority to fix salaries in advance for stated periods or
render the same retroactive as the Board may deem advisable. No officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
5.7 Bonds. If the Board of Directors by resolution shall so require,
any officer or agent of the corporation shall give bond to the corporation in
such amount and with such surety as the Board of Directors may deem sufficient,
condi-
<PAGE> 38
-34-
tioned upon the faithful performance of their respective duties and offices.
ARTICLE VI
DIVIDENDS
The Board of Directors from time to time may declare and the
corporation may pay dividends on its outstanding shares upon the terms and
conditions and in the manner provided by law and the Articles of Incorporation.
ARTICLE VII
FINANCE
7.1 Reserve Funds. The Board of Directors, in its uncontrolled
discretion, may set aside from time to time, out of the net profits or earned
surplus of the corporation, such sum or sums as it deems expedient as a reserve
fund to meet contingencies, for equalizing dividends, for maintaining any
property of the corporation, and for any other purpose.
7.2 Banking. The moneys of the corporation shall be deposited in the
name of the corporation in such bank or banks or trust company or trust
companies, as the Board of Directors shall designate, and may be drawn out only
on checks signed in the name of the corporation by such person or persons as the
<PAGE> 39
-35-
Board of Directors, by appropriate resolution, may direct. Notes and commercial
paper, when authorized by the Board, shall be signed in the name of the
corporation by such officer or officers or agent or agents as shall be
authorized from time to time.
ARTICLE VIII
CONTRACTS, LOANS AND CHECKS
8.1 Execution of Contracts. Except as otherwise provided by statute or
by these Bylaws, the Board of Directors may authorize any officer or agent of
the corporation to enter into any contract, or execute and deliver any
instrument in the name of, and on behalf of the corporation. Such authority may
be general or confined to specific instances. Unless so authorized, no officer,
agent or employee shall have any power to bind the corporation for any purpose,
except as may be necessary to enable the corporation to carry on its normal and
ordinary course of business.
8.2 Loans. No loans shall be contracted on behalf of the corporation
and no negotiable paper or otherwise evidence of indebtedness shall be issued in
its name unless authorized by the Board of Directors. When so authorized, any
officer or agent of the corporation may effect loans and advances at any
<PAGE> 40
-36-
time for the corporation from any bank, trust company or institution, firm,
corporation or individual. An agent so authorized may make and deliver
promissory notes or other evidence of indebtedness of the corporation and may
mortgage, pledge, hypothecate or transfer any real or personal property held by
the corporation as security for the payment of such loans. Such authority, in
the Board of Directors discretion, may be general or confined to specific
instances.
8.3 Checks. Checks, notes, drafts and demands for money or other
evidence of indebtedness issued in the name of the corporation shall be signed
by such person or persons as designated by the Board of Directors and in the
manner the Board of Directors prescribes.
8.4 Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositories as the Board of Directors may select.
ARTICLE IX
FISCAL YEAR
The fiscal year of the corporation shall be the year adopted by
resolution of the Board of Directors.
<PAGE> 41
-37-
ARTICLE X
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "CORPORATE SEAL".
ARTICLE XI
AMENDMENTS
Any Article or provision of these Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted by a majority of the directors present
at any meeting of the Board of Directors of the corporation at which a quorum is
present. Notwithstanding the foregoing, however, these Bylaws may be altered,
amended or repealed and new Bylaws adopted by a vote of a majority in interest
of the outstanding shares of the corporation entitled to vote at a meeting duly
called for that purpose.
ARTICLE XII
EXECUTIVE COMMITTEE
12.1 Appointment. The Board of Directors by resolution adopted by a
majority of the full Board, may designate two or
<PAGE> 42
-38-
more of its members to constitute an Executive Committee. The designation of
such committee and the delegation thereto of authority shall not operate to
relieve the Board of Directors, or any member thereof, of any responsibility
imposed by law.
12.2 Authority. The Executive Committee, when the Board of Directors is
not in session shall have and may exercise all of the authority of the Board of
Directors except to the extent, if any, that such authority shall be limited by
the resolution appointing the Executive Committee and except also that the
Executive Committee shall not have the authority of the Board of Directors in
reference to declaring dividends and distributions, recommending to the
shareholders that the Articles of Incorporation be amended, recommending to the
shareholders the adoption of a plan of merger or consolidation, filling
vacancies on the Board of Directors or any committee thereof, recommending to
the shareholders the sale, lease or other disposition of all or substantially
all of the property and assets of the corporation otherwise than in the usual
and regular course of its business, recommending to the shareholders a voluntary
dissolution of the corporation or a revocation thereof, authorize or approve the
issuance or reacquisition of shares, or amending the Bylaws of the corporation.
<PAGE> 43
-39-
12.3 Tenure and Qualifications. Each member of the Executive Committee
shall hold office until the next regular annual meeting of the Board of
Directors following the designation of such member and until his successor is
designated as a member of the Executive Committee and is elected and qualified.
12.4 Meetings. Regular meetings of the Executive Committee may be held
without notice at such time and places as the Executive Committee may fix from
time to time by resolution. Special meetings of the Executive Committee may be
called by any member thereof upon not less than one day's notice stating the
place, date and hour of the meeting, which notice may be written or oral, and if
mailed, shall be deemed to be delivered when deposited in the United States mail
addressed to the member of the Executive Committee at his business address. Any
member of the Executive Committee may waive notice of any meeting and no notice
of any meeting need be given to any member thereof who attends in person. The
notice of a meeting of the Executive Committee need not state the business
proposed to be transacted at the meeting.
12.5 Quorum. A majority of the members of the Executive Committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
action of the Executive Committee must be authorized by the affirmative vote of
a ma-
<PAGE> 44
-40-
jority of the members present at a meeting at which a quorum is present.
12.6 Informal Action by Executive Committee. Any action required or
permitted to be taken by the Executive Committee at a meeting may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the members of the Committee entitled to vote with
respect to the subject matter thereof.
12.7 Vacancies. Any vacancy in the Executive Committee may be filled by
a resolution adopted by a majority of the full Board of Directors.
12.8 Resignations and Removal. Any member of the Executive Committee
may be removed at any time with or without cause by resolution adopted by a
majority of the full Board of Directors. Any member of the Executive Committee
may resign from the Executive Committee at any time by giving written notice to
the President or Secretary of the corporation, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
12.9 Procedure. The Executive Committee shall elect a presiding officer
from its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws.
<PAGE> 45
-41-
It shall keep regular minutes of its proceedings and report the same to the
Board of Directors for its information at the meeting thereof held next after
the proceedings shall have been taken.
ARTICLE XIII
EMERGENCY BYLAWS
The Emergency Bylaws provided in this Article XIII shall be operative
during any emergency in the conduct of the business of the corporation resulting
from an attack on the United States or any nuclear or atomic disaster,
notwithstanding any different provision in the preceding articles of the Bylaws
or in the Articles of Incorporation of the corporation or in the Colorado
Corporation Code. To the extent not inconsistent with the provisions of this
Article, the Bylaws provided in the preceding articles shall remain in effect
during such emergency and upon its termination the Emergency Bylaws shall cease
to be operative.
During any such emergency:
(A) A meeting of the Board of Directors may be called by any
officer or director of the corporation. Notice of the time and place of the
meeting shall be given by the person calling the meeting to such of the
directors as it may be
<PAGE> 46
-42-
feasible to reach by any available means of communication. Such notice shall be
given at such time in advance of the meeting as circumstances permit in the
judgment of the person calling the meeting.
(B) At any such meeting of the Board of Directors, a quorum
shall consist of the number of directors in attendance at such meeting.
(C) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the principal office or
designate several alternative principal offices or regional offices, or
authorize the officers so to do.
(D) The Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession in the
event that during such an emergency any or all officers or agents of the
corporation shall for any reason be rendered incapable of discharging their
duties.
(E) No officer, director or employee acting in accordance with
these Emergency Bylaws shall be liable except for willful misconduct. No
officer, director, or employee shall be liable for any action taken by him in
good faith in such an emergency in furtherance of the ordinary business affairs
of
<PAGE> 47
-43-
the corporation even though not authorized by the Bylaws then in effect.
(F) These Emergency Bylaws shall be subject to repeal or
change by further action of the Board of Directors or by action of the
shareholders, but no such repeal or change shall modify the provisions of the
next preceding paragraph with regard to action taken prior to the time of such
repeal or change. Any amendment of these Emergency Bylaws may make any further
or different provision that may be practical and necessary for the circumstances
of the emergency.
CERTIFICATE
I hereby certify that the foregoing Bylaws, consisting of 43 pages,
including this page, constitute the Bylaws of Random Access, Inc., adopted by
the Board of Directors of the corporation as of April 8, 1992.
/s/ Patrick Smith
--------------------------------
Patrick Smith, Secretary
<PAGE> 1
CERTIFICATE OF INCORPORATION
OF
ENTEX SERVICES, INC.
THE UNDERSIGNED, for the purpose of forming a corporation pursuant to
the provisions of the General Corporation Law of the State of Delaware, does
hereby certify as follows:
1: The name of the corporation is ENTEX Services, Inc. (the
"Corporation").
2: The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware
19805. The name of its registered agent at such address is Corporation Service
Company.
3: The nature of the business or purposes to be conducted or promoted
by the Corporation are to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
4: The total number of shares of capital stock which the Corporation
shall have authority to issue is One Thousand Five Hundred (1,500) shares of
common stock, par value $1.00 per share (the "Common Stock").
5: The following provisions relate to the management of the business
and the conduct of the affairs of the Corporation and are not inserted for the
purpose of creating, defining, limiting and regulating the powers of the
Corporation and its directors and stockholders:
(A) The election of officers may be conducted in any manner
the By-Laws provide, and need not be by written ballot.
(B) The Board of Directors shall have the power to make,
alter, amend or repeal the By-Laws of the Corporation, except to the extent that
the By-Laws otherwise provide.
6: The Corporation shall indemnify to the full extent authorized by law
any person made or threatened to be made a party to an action or proceeding
whether criminal, civil, administrative or investigative, by reason of the fact
that he,
<PAGE> 2
-2-
his testator or intestate is or was a director or officer of the Corporation or
serves or served any other enterprise as a director or officer at the request of
the Corporation or any predecessor of the Corporation.
7: No director of the Corporation shall be liable to the Corporation 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 Corporation 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 Delaware General Corporation Law; or (iv)
for any transaction from which the director derived an improper personal
benefit.
8: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
9: The Corporation reserves the right to amend or repeal any provisions
contained in this Certificate of Incorporation from time to time and at any time
in the manner now or hereafter prescribed by the law of the State of Delaware,
and all rights herein conferred upon stockholders, directors and officers are
subject to this reserved power.
<PAGE> 3
-3-
10: The name and mailing address of the sole Incorporator of the
Corporation is Richard S. Green, c/o Reid & Priest, 40 West 57th Street, New
York, New York 10019.
IN WITNESS WHEREOF, the undersigned, being the sole Incorporator
hereinabove named, does hereby certify that the facts hereinabove stated are
truly set forth and, accordingly, hereby executes this Certificate of
Incorporation this 23rd day of January, 1995.
/s/ Richard S. Green
------------------------------
Incorporator
<PAGE> 1
BY-LAWS
OF
ENTEX SERVICES, INC.
ARTICLE I
Stockholders' Meetings; Voting
Section 1.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors on the first Monday in
May of each year, if not a legal holiday, and, if a legal holiday, then on the
next day not a legal holiday, at 10:00 o'clock in the forenoon at such time and
place either within or without the State of Delaware as may be designated by the
Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of
stockholders may be called at any time by the Chairman of the Board, the
President, the Board of Directors, or as provided in Section 2.2, to be held at
such date, time and place either within or without the State of Delaware as may
be stated in the notice of the meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of the Corporation. The Corporation shall,
at the written request of any stockholder, cause such notice to such stockholder
to be confirmed to such other address and/or by such other means as such
stockholder may reasonably request, provided that if such written request is
received after the date any such notice is mailed, such request shall be
effective for subsequent notices only.
<PAGE> 2
-2-
Section 1.4. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the certificate of incorporation or these
by-laws, the holders of a majority of the outstanding shares of each class of
stock entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum. With respect to any matter on which
stockholders vote separately as a class, the holders of a majority of the
outstanding shares of such class shall constitute a quorum for a meeting with
respect to such matter. Two or more classes or series of stock shall be
considered a single class for purposes of determining existence of a quorum for
any matter to be acted on if the holders thereof are entitled or required to
vote together as a single class at the meeting on such matter. In the absence of
a quorum the stockholders so present may, by majority vote, adjourn the meeting
from time to time in the manner provided by Section 1.4 of these by-laws until a
quorum shall attend.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, or in his absence by the President,
or in his absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meet-
<PAGE> 3
-3-
ing may authorize another person or persons to act for him by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors unless the holders of a majority
of the outstanding shares of any class of stock entitled to vote thereon present
in person or by proxy at such meeting shall so determine. At all meetings of
stockholders for the election of directors, such election and all other
elections and questions shall, unless otherwise provided by law or by the
certificate of incorporation or these by-laws, be decided by the vote of the
holders of a majority of the outstanding shares of all classes of stock entitled
to vote thereon present in person or by proxy at the meeting, voting as a single
class.
Section 1.8. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action. If no record date is fixed: (1) the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the Board is necessary, shall be the day on which the first written consent
is expressed; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. A determination
<PAGE> 4
-4-
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present.
Section 1.10. Consent of Stockholders in Lieu of Meeting. To
the extent provided by any statute at the time in force, whenever the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action, by any statute, by the certificate of
incorporation or by these by-laws, the meeting and prior notice thereof and vote
of stockholders may be dispensed with if the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted shall consent in writing to such corporate action without
a meeting by less than unanimous written consent and notice thereof shall be
given to those stockholders who have not consent in writing.
ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors, except as may be otherwise provided by law or in the
certificate of incorporation. The number of Directors which shall constitute the
whole Board of Directors shall be less than one (1). The number of
<PAGE> 5
-5-
directors may be fixed from time to time by vote of the stockholders or of the
Board of Directors, at any regular or special meeting, subject to the provisions
of the certificate of incorporation.
Section 2.2. Election; Term of Office; Resignation; Removal;
Vacancies; Special Elections. Except as otherwise provided in this Section 2.2,
the directors shall be elected annually at the annual meeting of the
stockholders. Each director (whenever elected) shall hold office until the
annual meeting of stockholders or any special meeting of stockholders called to
elect directors next succeeding his election and until his successor is elected
and qualified or until his earlier resignation or removal, except as provided in
the certificate of incorporation. Any director may resign at any time upon
written notice to the Board of Directors or to the Chairman of the Board or to
the President of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. Any director may be removed
with or without cause at any time upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such director, given at a special meeting of such
stockholders called for the purpose. If any vacancies shall occur in the Board
of Directors, by reason of death, resignation, removal or otherwise, or if the
authorized number of directors shall be increased, the directors then in office
shall continue to act, and such vacancies may be filled by a majority of the
directors then in office, though less than a quorum; provided, however, that
whenever the holders of any class or classes of stock or series thereof are
entitled to elect one or more directors by the provisions of the certificate of
incorporation, vacancies and newly created directorships of such class or
classes or series shall be filled by a majority of the directors elected by such
class or classes or series thereof then in office though less than a quorum or
by a sole remaining director so elected. Any such vacancies or newly created
directorships may also be filled upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of directors, given at a special meeting of the stockholders
called for the purpose.
Section 2.3. Regular Meetings. Regular meetings of the Board
of Directors may be held at such places within or without the State of Delaware
and at such times as the Board
<PAGE> 6
-6-
may from time to time determine, and if so determined notice thereof need not be
given.
Section 2.4. Special Meetings. Special meetings of the Board
of Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, by the President or by
any two directors. Reasonable notice thereof shall be given by the person or
persons calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Unless otherwise
restricted by the certificate of incorporation or these by-laws, any member of
the Board of Directors, or any committee designated by the Board, may
participate in a meeting of the Board or of such committee, as the case may be,
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this by-law shall constitute presence in
person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors the presence of [a majority] of the total number of
directors shall constitute a quorum for the transaction of business. The vote of
at least [a majority] of the directors present at any meeting at which a quorum
is present shall be necessary to constitute and shall be the act of the Board
unless the certificate of incorporation or these by-laws shall otherwise
provide. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall attend.
Section 2.7. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, or in his absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless
otherwise restricted by the certificate of incorporation or these by-laws, any
action required or permitted to be taken at any meeting of the Board of
Directors, or of any committee thereof, may be taken without a meeting if all
members of the Board or such committee, as the case may be, consents thereto
<PAGE> 7
-7-
in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may, by
resolution passed by a majority of the total number of directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. Any such committee, to the extent provided in the resolution of
the Board, and unless otherwise restricted by the certificate of incorporation
or these by-laws, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the Corporation, to
the full extent permitted by law.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business, the vote of all such members present at a
meeting shall be the act of such committee, and in other respects each committee
shall conduct its business pursuant to Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after
the annual meeting of stockholders in each year, the Board shall elect a
President and a Secretary. The Board may also elect a Chairman of the Board, one
or more Vice Presidents, one or more Assistant Vice Presidents, one or more
Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and may
give any of them such further designations or alternate titles as it considers
desirable. Any number of offices may be held by the same person.
<PAGE> 8
-8-
Section 4.2. Term of Office; Resignation; Removal; Vacancies.
Except as otherwise provided in the resolution of the Board of Directors
electing any officer, each officer shall hold office until the first meeting of
the Board after the annual meeting of stockholders next succeeding his election,
and until his successor is elected and qualified or until his earlier
resignation or removal. Any officer may resign at any time upon written notice
to the Board or to the President of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. The
Board may remove any officer with or without cause at any time, provided that
such action by the Board shall require the vote of a majority of the whole
Board. Any such removal shall be without prejudice to the contractual rights of
such officer, if any, with the Corporation, but the election of an officer shall
not of itself create contractual rights. Any vacancy occurring in any office of
the Corporation by death, resignation, removal or otherwise shall or may be
filled for the unexpired portion of the term by the Board at any regular or
special meeting in the manner provided in Section 4.1 for election of officers
following the annual meeting of stockholders.
Section 4.3. Chairman of the Board. The Chairman of the Board
shall have and may exercise such powers and perform such other duties as are,
from time to time, assigned to him by the Board and as may be provided by law.
In addition, he shall preside at all meetings of the Board of Directors and of
the stockholders at which he shall be present.
Section 4.4. President. The President shall perform all duties
incident to such office, and such other duties as, from time to time, may be
assigned to him by the Board or as may be provided by law.
Section 4.5. Chief Executive Officer. The Board of Directors
may by resolution designate an officer to be the Chief Executive Officer of the
Corporation. Such Chief Executive Officer shall have general charge and
supervision of the management and affairs of the Corporation and such other
duties as may be assigned by the Board from time to time.
Section 4.6. Vice Presidents. The Vice President or Vice
Presidents, at the request of the President or in his absence or during his
inability to act, shall perform the duties of the President, and when so acting
shall have the powers of the President. If there be more than one Vice
President,
<PAGE> 9
-9-
the Board of Directors may determine which one or more of the Vice Presidents
shall perform any of such duties; or if such determination is not made by the
Board, the President may make such determination; otherwise any of the Vice
Presidents may perform any of such duties. The Vice President or Vice Presidents
shall have such other powers and perform such other duties as may be assigned to
him or them by the Board or the President or as may be provided by law.
Section 4.7. Secretary. The Secretary shall have the duty to
record the proceedings of the meetings of the stockholders, the Board of
Directors and any committees in a book to be kept for that purpose; he shall see
that all notices are duly given in accordance with the provisions of these
by-laws or as required by law; he shall be custodian of the records of the
Corporation; he may affix the corporate seal to any document the execution of
which, on behalf of the Corporation, is duly authorized, and when so affixed may
attest the same; and, in general, he shall perform all duties incident to the
office of secretary of a corporation, and such other duties as, from time to
time, may be assigned to him by the Board or the President or as may be provided
by law.
Section 4.8. Treasurer. The Treasurer shall have charge of and
be responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit or cause to be deposited, in the name of the
Corporation, all moneys or other valuable effects in such banks, trust companies
or other depositories as shall, from time to time, be selected by or under
authority of the Board of Directors; if required by the Board, he shall give a
bond for the faithful discharge of his duties, with such surety or sureties as
the Board may determine; he shall keep or cause to be kept full and accurate
records of all receipts and disbursements in books of the Corporation and shall
render to the President and to the Board, whenever requested, an account of the
financial condition of the Corporation; and, in general, he shall perform all
the duties incident to the office of treasurer of a corporation, and such other
duties as may be assigned to him by the Board or the President or as may be
provided by law.
Section 4.9. Other Officers. The other officers, if any, of
the Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in a resolution adopted by the Board of Directors
which is not inconsistent with these by-laws and, to the extent not so stated,
as generally pertain to their respective offices, subject to the control of the
Board. The Board may require any officer, agent
<PAGE> 10
-10-
or employee to give security for the faithful performance of his duties.
ARTICLE V
Stock
Section 5.1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, of the Corporation, certifying the number of shares
owned by him in the Corporation. If such certificate is manually signed by one
officer or manually countersigned by a transfer agent or by a registrar, any
other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate theretofore issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Seal. The Corporation may have a corporate seal
which shall have the name of the Corporation inscribed thereon and shall be in
such form as may be approved from time to time by the Board of Directors. The
corporate
<PAGE> 11
-11-
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or in any other manner reproduced.
Section 6.2. Waiver of Notice of Meetings of Stockholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the certificate of incorporation or these by-laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these by-laws.
Section 6.3. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
Section 6.4. Dividends. Dividends upon the stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, bonds, in property, or
in shares of stock, subject to the provisions of the Certificate of
Incorporation.
Section 6.5. Reserves. Before the payment of any dividend,
there may be set aside out of any funds of the corporation available for
dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purposes as the directors shall think conducive
to the interest of the Corporation, and the directors may modify or abolish any
such reserve.
<PAGE> 12
-12-
Section 6.6. Checks. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 6.7. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 6.8. Offices. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware. The
Corporation may also have offices at such other places within or outside the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation may require.
ARTICLE VII
Amendments
Section 7.1. Amendments. These by-laws may be altered, amended
or repealed at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such alteration, amendment or repeal be contained in the
notice of such special meeting.
ARTICLE VIII
Indemnification
Section 8.1. Indemnification. The Corporation shall indemnify
to the fullest extent permitted by law any person made or threatened to be made
a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person, or a
person of whom he or she is the legal representative, is or was a director,
officer, employee or agent of the Corporation or any predecessor of the
Corporation, or serves or served any other enterprise as a director, officer,
employee or agent at the request of the Corporation or any predecessor of the
Corporation.
The Corporation shall pay any expenses reasonably incurred by
a director or officer in defending a civil or crimi-
<PAGE> 13
-13-
nal action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
under this Article or otherwise. The Corporation may, by action of its Board of
Directors, provide for the payment of such expenses incurred by employees and
agents of the Corporation as it deems appropriate.
The rights conferred on any person under this Article shall
not be deemed exclusive of any other rights that such person may have or
hereafter acquire under any statute, provision of the Corporation's Certificate
of Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise. All rights to indemnification and to the advancement of
expenses under this Article shall be deemed to be provided by a contract between
the Corporation and the director, officer, employee or agent who serves in such
capacity at any time while these By-Laws and any other relevant provisions of
the Delaware General Corporation Law and any other applicable law, if any, are
in effect. Any repeal or modification thereof shall not affect any rights or
obligations then existing.
For purposes of this Article, references to "the Corporation"
shall be deemed to include any subsidiary of the Corporation now or hereafter
organized under the laws of the State of Delaware.
<PAGE> 1
CERTIFICATE OF INCORPORATION
OF
ERLANGER LAND CO., INC.
THE UNDERSIGNED, in order to form a corporation for the
purposes hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST: The name of the corporation is Erlanger Land Co., Inc.
(hereinafter the "Corporation")
SECOND: Its registered office is to be located at 32
Loockerman Square, Suite L-100, in the City of Dover, County of Kent, State of
Delaware, 19901. The name of its registered agent at that address is The
Prentice-Hall Corporation System, Inc.
THIRD: To engage in any act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have the authority to issue is one thousand (1,000) shares of
common stock, all of which shall have a par value of $.01 each.
FIFTH: The name and mailing address of the incorporator is:
Concetta N. Golden
JWP Inc.
2975 Westchester Avenue
Purchase, New York 10677
SIXTH: The By-Laws of the Corporation may be made, altered,
amended, changed, added to or repealed by the Board of directors without the
assent or vote of the stockholders. Elections of directors need not be by ballot
unless the By-Laws so provide.
SEVENTH: The Corporation shall, to the full extent permitted
by Section 145 of the Delaware General Corporation Law, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
<PAGE> 2
-2-
EIGHTH: The Corporation shall to the full extent permitted by
Section 102(b)(7) of the Delaware General Corporation Law, as amended from time
to time, eliminate or limit the personal monetary liabilities of the directors
of the Corporation.
NINTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate in the manner now
or hereafter prescribed by law, and all rights and powers conferred herein on
stockholders, directors and officers are subject to this reserved power.
IN WITNESS WHEREOF, the undersigned being the sole
incorporator of the above-named corporation, has hereto signed this Certificate
of Incorporation, this 24th day of January, 1992.
/s/ Concetta N. Golden
--------------------------------------
Concetta N. Golden, Sole Incorporator
<PAGE> 1
BY LAWS
OF
ERLANGER LAND CO., INC.
(a Delaware corporation)
<PAGE> 2
BY-LAWS
OF
ERLANGER LAND CO., INC.
(a Delaware corporation)
TABLE OF CONTENTS
PAGE
ARTICLE I. Offices................................................ 1
Section 1. Registered Office...................................... 1
Section 2. Additional Offices..................................... 1
ARTICLE II. Stockholders........................................... 1
Section 1. Annual Meetings........................................ 1
Section 2. Special Meetings....................................... 2
Section 3. Notice................................................. 2
Section 4. Quorum................................................. 2
Section 5. Voting................................................. 3
Section 6. Inspectors of Meetings................................. 3
Section 7. Chairman of Meetings................................... 3
Section 8. Secretary of Meeting................................... 4
Section 9. Action by Written Consent..............................
ARTICLE III. Board of Directors..................................... 4
Section 1. Functions and Definitions.............................. 4
Section 2. Qualification and Number............................... 4
Section 3. Vacancies.............................................. 5
Section 4. Regular Meetings....................................... 5
Section 5. Special Meetings....................................... 5
Section 6. Quorum and Action...................................... 6
Section 7. Action by Written Consent.............................. 6
Section 8. Conference Telephone................................... 7
ARTICLE IV. Committees............................................. 7
Section 1. Committees of Directors................................ 7
Section 2. Quorum; Action; Removal................................ 7
ARTICLE V. Officers............................................... 8
Section 1. Executive Officers..................................... 8
Section 2. Term of Office; Removal; Vacancies..................... 8
Section 3. Authority and Duties................................... 9
Section 4. Chairman of the Board..................................
ARTICLE VI. Capital Stock.......................................... 9
Section 1. Certificates Representing Shares....................... 9
Section 2. Transfer Agents and/or Registrars...................... 10
-i-
<PAGE> 3
PAGE
Section 3. Stock Transfers........................................ 10
Section 4. Lost or Stolen Certificates............................ 11
Section 5. Stockholders of Record................................. 11
Section 6. Record Date for Stockholders........................... 11
ARTICLE VII. Indemnification........................................ 13
ARTICLE VIII. Miscellaneous.......................................... 13
Section 1. Corporate Seal......................................... 13
Section 2. Fiscal Year............................................ 13
Section 3. Notice................................................. 13
ARTICLE IX. Amendment.............................................. 14
-ii-
<PAGE> 4
BY-LAWS
OF
ERLANGER LAND CO., INC.
(a Delaware Corporation)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The corporation shall maintain a
registered office in the State of Delaware as required by law.
SECTION 2. ADDITIONAL OFFICES. The corporation may also have
offices and places of business at such other places, within or without the State
of Delaware, as the Board of Directors may from time to time determine or as the
business of the corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of the
stockholders for the election of directors and for the transaction of such other
business as may properly come before the meeting, shall be held on such dates
and at such times and
<PAGE> 5
-2-
places, either within or without the State of Delaware, as may be fixed from
time to time by resolution of the Board of Directors.
SECTION 2. SPECIAL MEETINGS. Except as otherwise required by
statute or by the corporation's Certificate of Incorporation, special meetings
of the stockholders for any purpose, may be called by the Board of Directors or
by the Chairman of the Board. Special meetings of the stockholders shall be held
on such dates and at such times and places, either within or without the State
of Delaware, as shall be stated in the notices of such meetings. Notice of any
special meeting shall state the purpose or purposes for which the meeting is to
be held and no other business shall be transacted except as stated in such
notice.
SECTION 3. NOTICE. Written notice of all meetings of the
stockholders shall be mailed or delivered to each stockholder entitled to vote
thereat at least ten, but not more than fifty days prior to the meeting. Notice
of any meeting shall state in general terms the purposes for which the meeting
is to be held and no other business shall be transacted except as stated in such
notice.
SECTION 4. QUORUM. The holders of a majority of the issued and
outstanding shares of the capital stock of the
<PAGE> 6
-3-
corporation entitled to vote thereat, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of
stockholders.
SECTION 5. VOTING. Except as otherwise required by statute, or
provided in the Certificate of Incorporation or these By-Laws, all matters
coming before any meeting of the stockholders shall be decided by the vote of
the holders of a majority of the shares of capital stock of the corporation
present in person or represented by proxy at such meeting and voting thereon, a
quorum being present.
SECTION 6. INSPECTORS OF MEETINGS. The Board of Directors, or,
if the Board shall not have made the appointment, the Chairman presiding at any
meeting of the stockholders, shall have the power to appoint two or more persons
to act as inspectors, to receive, canvass and report the votes cast by the
stockholders at such meeting.
SECTION 7. CHAIRMAN OF MEETING. The Chairman of the Board, or,
in his absence, the President, shall preside at all meetings of the
stockholders; and in their absence, the Board of Directors may appoint a person
to act as Chairman of the meeting.
<PAGE> 7
-4-
SECTION 8. SECRETARY OF MEETING. The Secretary of the
corporation, or, in his absence, an Assistant Secretary, shall act as Secretary
at all meetings of the stockholders; and in their absence the Chairman of the
meeting shall appoint a person to act as Secretary of the meeting.
SECTION 9. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the stockholders of the corporation may
be taken without a meeting if all of the stockholders of the corporation consent
thereto in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. FUNCTIONS AND DEFINITIONS. The business and affairs
of the corporation shall be managed and controlled by or under the Board of
Directors. The word "director" means any member of the Board of Directors. The
use of the phrase "entire Board" herein refers to the total number of directors
which the corporation would have if there were no vacancies.
SECTION 2. QUALIFICATION AND NUMBER. Each director shall be at
least eighteen years of age. A director need not be a stockholder, a citizen of
the United States, or a resident of the State of Delaware. The Board of
Directors shall consist
<PAGE> 8
-5-
of one or more directors, as may be fixed from time to time. If the number is
not so fixed, the number shall be two. The number of directors may be increased
or decreased by action of the Board of Directors or the stockholders. Any action
of the directors to effect such increase or decrease shall require the vote of a
majority of the entire Board. No decrease shall shorten the term of any
incumbent director.
SECTION 3. VACANCIES. Any vacancies in the Board of Directors
resulting from death, resignation, increase in the number of directors, or from
any other reason whatsoever, may be filled by a vote of a majority of the
directors then in office, although less than a quorum, or by vote of the
stockholders. A director elected by the stockholders to fill a vacancy shall
hold office for the unexpired term of his predecessor.
SECTION 4. REGULAR MEETINGS. Regular meetings of the Board of
Directors, other than the annual meeting, shall be held on such dates and at
such times and places and on such notice, if any, as the Board of Directors may
from time to time determine.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or by the President and
shall be called by the President upon a request in writing by any two directors.
Notice shall
<PAGE> 9
-6-
be given of the time and place of each special meeting by mailing the same at
least three days before the meeting or by telephoning, telegraphing or
personally delivering the same at least one day before the meeting to each
director. Except as otherwise required by statute, or as provided in the
Certificate of Incorporation or these By-Laws, any and all business may be
transacted at any special meeting.
SECTION 6. QUORUM AND ACTION. At meetings of the Board of
Directors, the Chairman of the Board, or, in his absence, the President, shall
preside. A majority of the entire Board of Directors shall constitute a quorum
for the transaction of business, but less than a quorum may adjourn any meeting
from time to time until a quorum shall be present, whereupon the meeting may be
held, as adjourned, without further notice. Except as otherwise required by any
applicable statute, or as provided in the Certificate of Incorporation or these
By-Laws, all matters coming before any meeting of the Board of Directors shall
be decided by the vote of a majority of the directors present at the time of the
vote, if a quorum is present at such time, and shall be the act of the Board.
SECTION 7. ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without
<PAGE> 10
-7-
a meeting if all of the members of the Board or committee, as the case may be,
consent thereto in writing.
SECTION 8. CONFERENCE TELEPHONE. Any one or more of the
members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or committee, as the case may be, by means of a
conference telephone or similar communications equipment, by means of which all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by such means shall constitute presence in person at
such meeting.
ARTICLE IV
COMMITTEES
SECTION 1. COMMITTEES OF DIRECTORS. Except as otherwise
provided by statute, the Board of Directors may, by resolution passed by a
majority of the entire Board, designate from among its own members such
committees to have such powers and duties as shall from time to time be
prescribed by the Board of Directors.
SECTION 2. QUORUM; ACTION; REMOVAL. A majority of the whole
committee shall constitute a quorum for the transaction of business of any
committee and may fix its rules of procedure. Each committee shall keep regular
minutes of its meet-
<PAGE> 11
-8-
ings and report the same to the Board of Directors. All such committees shall
serve at the pleasure of the Board. The Board of Directors may discharge any
committee or remove any member thereof either with or without cause at any time.
ARTICLE V
OFFICERS
SECTION 1. EXECUTIVE OFFICERS. The Board of Directors may
elect or appoint the following executive officers: a Chairman of the Board of
Directors, a President, one or more Vice Presidents (one or more of whom may be
designated as "Executive Vice President"), a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, and such other
officers as the Board of Directors may determine from time to time.
SECTION 2. TERM OF OFFICE; REMOVAL; VACANCIES. Unless
otherwise provided in the resolution of election or appointment, each officer
shall hold office for one year or until the meeting of the Board of Directors
following the next meeting of stockholders and until their respective successors
have been elected and qualified. The Board of Directors may remove any officer
either with cause or without cause. Vacancies in
<PAGE> 12
-9-
any office may be filled at any regular or special meeting of the Board of
Directors.
SECTION 3. AUTHORITY AND DUTIES. All of the officers of the
corporation, as between themselves and the corporation, shall, unless otherwise
ordered by the Board of Directors, each have such authority and perform such
duties in the management of the corporation as generally pertain to their
respective offices, as well as such authority and duties as may from time to
time be specifically conferred or imposed by the Board of Directors.
ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES REPRESENTING SHARES. Certificates
representing shares of stock of the corporation shall be in such form as the
Board of Directors may from time to time prescribe and shall be signed by the
Chairman of the Board, President, or a Vice President and by the Treasurer or an
Assistant Treasurer, or by the secretary or an Assistant Secretary. If the
certificates are signed by a transfer agent acting on behalf of the corporation,
or registered by a registrar other than the corporation itself or its employee,
the signature of the officers upon such certificates may be facsimiles.
<PAGE> 13
-10-
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is delivered,
it may be issued and delivered by the corporation with the same effect as if he
were such officer, transfer agent or registrar on the date of its issue and
delivery.
SECTION 2. TRANSFER AGENTS AND/OR REGISTRARS. The Board of
Directors shall have the power to appoint one or more transfer agents and/or
registrars for the transfer and/or registration of certificates of stock of any
class or series and may require that stock certificates shall be countersigned
and or registered by one or more of such transfer agents and/or registrars.
SECTION 3. STOCK TRANSFERS. Upon compliance with provisions
restricting the transferability of shares of stock, if any, shares of the
capital stock of the corporation shall be transferable on the books of the
corporation only by the holder of record thereof in person or by his duly
authorized attorney, upon surrender and cancellation of certificates for a like
number of shares, with an assignment or power of transfer endorsed thereon or
delivered therewith, duly executed and filed with the Secretary of the
corporation or with a transfer agent or a
<PAGE> 14
-11-
registrar, if any, and with such proof of the authenticity of the signature and
of authority to transfer, and of payment of all transfer taxes due thereon, as
the corporation or its agent may require.
SECTION 4. LOST OR STOLEN CERTIFICATES. In case any
certificate representing shares of the capital stock of the corporation shall be
alleged to have been lost, destroyed or stolen, the corporation may require such
proof of the fact and such indemnity to be given to it and/or to its transfer
agent and/or registrar, if any, in such amount and upon such terms and secured
by such surety as the Board of Directors may in its discretion deem necessary or
advisable.
SECTION 5. STOCKHOLDERS OF RECORD. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder thereof in fact, and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
SECTION 6. RECORD DATE FOR STOCKHOLDERS. For the purpose of
determining the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to or dissent
from any proposal
<PAGE> 15
-12-
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a date as the record date for any such
determination of stockholders. Such date shall not be more than fifty days nor
less than ten days before the date of such meeting, nor more than fifty days
prior to any other action. If no record date is fixed, the record date for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if no notice is given, the day on which the
meeting is held; the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided in this paragraph, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date under this
paragraph for the adjourned meeting.
<PAGE> 16
-13-
ARTICLE VII
INDEMNIFICATION
Section 1. The corporation shall indemnify to the full extent
permitted by law any person who is or was made, or threatened to be made, a
party to any action, suit or proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that he, his testator or intestate is or
was a director, officer or employee of the corporation or serves or served any
other corporation or enterprise at the request of the corporation.
ARTICLE VIII
MISCELLANEOUS
Section 1. CORPORATE SEAL. The corporate seal, if any, shall
be circular in form and shall contain the name of the corporation and the year
and state of the incorporation.
Section 2. FISCAL YEAR. The Board of Directors shall have the
power to fix, and from time to time change, the fiscal year of the corporation.
Section 3. NOTICE. Any notice required to be given under the
provisions of these By-Laws or otherwise may be waived by the stockholder,
director, member of any committee
<PAGE> 17
-14-
or officer to whom such notice is required to be given, before or after the
meeting or other action of which notice was required to be given.
ARTICLE IX
AMENDMENT
The Board of Directors shall have the power to make, alter and
repeal the By-Laws of the corporation by a vote of the majority of the Board of
Directors at any regular or special meeting of the Board, subject to the power
of the stockholders to alter or repeal the By-Laws made or altered by the Board
of Directors. The By-Laws may be altered or repealed by the stockholders by the
vote of the holders of a majority of the outstanding shares entitled to vote
thereon at any meeting, provided that notice of the proposed alteration or
repeal shall have been given in the notice of such meeting of the stockholders.
<PAGE> 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FCP TECHNOLOGIES, INC.
FCP Technologies, Inc., a corporation organized under the laws of
the state of Delaware, does hereby certify as follows:
1: The name of the corporation is FCP Technologies, Inc. (the
"Corporation"). The name under which the Corporation was originally incorporated
was Frederick Computers Plus, Inc. The date of filing of its original
Certificate of Incorporation with the Secretary of State was December 7, 1993.
2: This Amended and Restated Certificate of Incorporation restates,
integrates, amends and supersedes the Corporation's Certificate of
Incorporation, as heretofore amended or supplemented (the "Certificate of
Incorporation"), and was duly adopted in accordance with the provisions of
Section 242 and 245 of the General Corporation Law of the State of Delaware.
3: The text of the Certificate of Incorporation are amended and
restated hereby to read as herein set forth in full:
FIRST: The name of the corporation is FCP TECHNOLOGIES, INC.
(the "Corporation").
SECOND: The address of its registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle
and the name and address of its registered agent is CORPORATION SERVICE COMPANY,
1013 Centre Road, Wilmington, Delaware 19805.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is One Thousand (1,000) shares of
common stock, par value $.0001 per share.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The Board of Directors is expressly authorized to make, alter
or repeal the By-Laws of the Corporation.
SEVENTH: No director of this Corporation shall be personally liable
to the Corporation or to its stockholders for monetary damages for breach of
fiduciary duty
<PAGE> 2
-2-
as a director except for liability (i) for any breach of the director's duty of
loyalty to the Corporation 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 Delaware General Corporation Law; or (iv)
for any transaction from which the director derived an improper personal
benefit. It is the intention of this Article SEVENTH to limit the liability of
directors of this Corporation to the fullest extent permitted by Section 102(b)7
of Title 8 or by any other present or future provision of Delaware law.
EIGHTH: The Corporation shall indemnify to the full extent
authorized by law any person made or threatened to be made a party to an action
or proceeding whether criminal, civil, administrative or investigative, by
reason of the fact that he, his testator or intestate is or was a director,
officer, employee or agent of the Corporation or serves or served any other
enterprise as a director or officer at the request of the Corporation or any
predecessor of the Corporation. The Corporation shall pay and advance expenses
to directors and officers for matters covered by indemnification to the full
extent permitted by such law, and may similarly pay and advance expenses for
employees and agents. This Article EIGHTH shall not exclude any other
indemnification or other rights to which any party may be entitled in any
manner.
NINTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
TENTH: The Corporation reserves the right to amend or repeal any
provisions contained in this Certificate of Incorporation from time to time and
at any time in the manner now or hereafter prescribed by the law of the State of
Delaware, and all rights herein conferred upon stockholders, directors and
officers are subject to this reserved power.
<PAGE> 3
-3-
IN WITNESS WHEREOF, the undersigned, does hereby certify that the
facts hereinabove stated are truly set forth and, accordingly, hereby executes
this Amended and Restated Certificate of Incorporation this 25th day of
September, 1998.
/s/ Lynne A. Burgess
-------------------------------------
Lynne A. Burgess
Vice President
<PAGE> 1
BYLAWS
OF
FCP TECHNOLOGIES, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
I.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the
certificate of incorporation of the corporation.
I.2 OTHER OFFICES
The board of directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to
do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
II.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or
outside the State of Delaware designated by the board of directors. In the
absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the corporation.
II.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on
a date and at a time designated by the board of directors. In the absence of
such designation, the annual meeting of stockholders shall be held on the [first
Monday in May] in each year at [10:00 a.m.] However, if such day falls on a
legal holiday, then the meeting shall be held at the same time and place on the
next succeeding full business day. At the meeting, directors shall be elected,
and any other proper business may be transacted.
<PAGE> 2
-2-
II.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any
time by the board of directors, or by the chairman of the board, or by the
president.
II.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or
otherwise given in accordance with Section 2.5 of these bylaws not less than ten
(10) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the purpose or purposes for which the meeting is called (no
business other than that specified in the notice may be transacted) or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the stockholders
(but any proper matter may be presented at the meeting for such action). The
notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
II.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES
AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special
meeting, nominations for the election of directors or other business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board of directors, (b) otherwise properly brought before
the meeting by or at the direction of the board of directors or (c) otherwise
properly brought before the meeting by a stockholder.
II.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given
either personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any
notice of any stockholders' meeting, executed by the secretary, assistant
secretary or any transfer agent of the corporation giving the notice, shall be
prima facie evidence of the giving of such notice.
<PAGE> 3
-3-
II.7 QUORUM
The holders of a majority in voting power of the stock issued
and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.8 of these bylaws.
When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the laws of the
State of Delaware or of the certificate of incorporation or these bylaws, a
different vote is required, in which case such express provision shall govern
and control the decision of the question.
If a quorum be initially present, the stockholders may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum, if any action taken is
approved by a majority of the stockholders initially constituting the quorum.
II.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time and place, unless
these bylaws otherwise require, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact any
business that might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
II.9 VOTING
The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners, and to voting trusts and other voting agreements).
<PAGE> 4
-4-
Except as may be otherwise provided in the certificate of
incorporation or these bylaws, each stockholder shall be entitled to one vote
for each share of capital stock held by such stockholder.
II.10 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to
notice of any meeting or to vote thereat, the board of directors may fix, in
advance, a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the board of directors and which
shall not be more than sixty (60) days nor less than ten (10) days before the
date of any such meeting, and in such event only stockholders of record on the
date so fixed are entitled to notice and to vote, notwithstanding any transfer
of any shares on the books of the corporation after the record date.
If the board of directors does not so fix a record date, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the business day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting unless the board of directors fixes a new record date for the adjourned
meeting, but the board of directors shall fix a new record date if the meeting
is adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in
Section 8.1 of these bylaws.
II.11 PROXIES
Every person entitled to vote for directors, or on any other
matter, shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission, telefacsimile or
otherwise) by the stockholder or the stockholder's attorney-in-fact. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(e) of the General Corporation Law of
Delaware (relating to the irrevocability of proxies).
<PAGE> 5
-5-
II.12 ORGANIZATION
The chairman of the board, or in the absence of the chairman
of the board, the president, shall call the meeting of the stockholders to
order, and shall act as chairman of the meeting. In the absence of the chairman
of the board, the president, and all of the vice presidents, the stockholders
shall appoint a chairman for such meeting. The chairman of any meeting of
stockholders shall determine the order of business and the procedures at the
meeting, including such matters as the regulation of the manner of voting and
the conduct of business. The secretary of the corporation shall act as secretary
of all meetings of the stockholders, but in the absence of the secretary at any
meeting of the stockholders, the chairman of the meeting may appoint any person
to act as secretary of the meeting.
II.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
ARTICLE III
DIRECTORS
III.1. POWERS
Subject to the provisions of the General Corporation Law of
Delaware and to any limitations in the certificate of incorporation or these
bylaws relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
<PAGE> 6
-6-
III.2 NUMBER OF DIRECTORS
The board of directors shall consist of five (5) members. The
number of directors may be changed by an amendment to this bylaw, duly adopted
by the board of directors or by the stockholders, or by a duly adopted amendment
to the certificate of incorporation.
III.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors
shall hold office until the expiration of the term for which elected and until a
successor has been elected and qualified; except that if any such election shall
not be so held, such election shall take place at a stockholders' meeting called
and held in accordance with the Delaware General Corporation Law.
III.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to
the chairman of the board, the president, the secretary or the board of
directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a director is effective at a future
time, the board of directors may elect a successor to take office when the
resignation becomes effective. Each director so elected shall hold office until
the expiration of the term of office of the director whom he has replaced and
until a successor has been elected and qualified.
Effective upon the closing of a firm commitment underwritten
public offering of any of the corporation's securities pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as amended,
vacancies occurring on the Board of Directors for any reason and newly created
directorships resulting from an increase in the authorized number of directors
may be filled only by vote of a majority of the remaining members of the Board
of Directors, although less than a quorum, at any meeting of the Board of
Directors. A person so elected by the Board of Directors to fill a vacancy or
newly created directorship shall hold office until the next election of the
Class for which such director shall have been chosen and until his or her
successor shall have been duly elected and qualified.
Unless otherwise provided in the certificate of incorporation
or these bylaws (including, without limitation, the certificate of incorporation
and bylaws as amended effective upon the closing of a firm commitment
underwritten public offering of any of the corporation's securities pursuant to
a registration statement on Form S-1 under the Securities Act of 1933, as
amended:
<PAGE> 7
-7-
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of
the stockholders having the right to vote as a single class may be
filled by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the
provisions of the certificate of incorporation, vacancies and newly
created directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes or
series thereof then in office, or by a sole remaining director so
elected.
If at any time, by reason of death or resignation or other
cause, the corporation should have no directors in office, then any officer or
any stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of stockholders in
accordance with the provisions of the certificate of incorporation or these
bylaws, or may apply to the Court of Chancery for a decree summarily ordering an
election as provided in Section 211 of the General Corporation Law of Delaware
(relating to meetings of shareholders).
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware (relating to meetings of shareholders) as far as
applicable.
III.5 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors; provided, however,
that, if and so long as stockholders of the corporation are entitled to
cumulative voting, if less than the entire board is to be removed, no director
may be removed without cause if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
board of directors. Whenever the holders of any class or series are entitled to
elect one or more directors by the certificate of incorporation, this Section
3.5 shall apply, in respect to the removal without cause of a director or
directors
<PAGE> 8
-8-
so elected, to the vote of the holders of the outstanding shares of that class
or series and not to the vote of the outstanding shares as a whole.
Effective upon the closing of a firm commitment underwritten
public offering of any of the corporation's securities pursuant to a
registration statement on Form S-1 under the Securities Act of 1933, as amended,
any director may be removed from office by the stockholders of the corporation
only for cause.
III.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any
place within or outside the State of Delaware that has been designated from time
to time by resolution of the board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
corporation. Special meetings of the board may be held at any place within or
outside the State of Delaware that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the corporation.
Any meeting of the board, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another; and all such
participating directors shall be deemed to be present in person at the meeting.
III.7 FIRST MEETINGS
The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
III.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without
notice at such time as shall from time to time be determined by the board of
directors. If any regular meeting day shall fall on a legal holiday, then the
meeting shall be held at the same time and place on the next succeeding full
business day.
<PAGE> 9
-9-
III.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board, the president,
any vice president, the secretary or any two directors.
Notice of the time and place of special meetings shall be
delivered personally or by telephone to each director or sent by first-class
mail, telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone, telecopy or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the director. The
notice need not specify the purpose or the place of the meeting, if the meeting
is to be held at the principal executive office of the corporation.
III.10 QUORUM
A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided in Section 3.12 of these bylaws. Every act or decision done or made by
a majority of the directors present at a duly held meeting at which a quorum is
present shall be regarded as the act of the board of directors, subject to the
provisions of the certificate of incorporation and applicable law.
A meeting at which a quorum is initially present may continue
to transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the quorum for that meeting.
III.11 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who
signs a waiver of notice, whether before or after the meeting, or (ii) who
attends the meeting other than for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. All such waivers shall be filed with the
corporate records or made part of the minutes of the meeting. A waiver of notice
need not specify the purpose of any regular or special meeting of the board of
directors.
<PAGE> 10
-10-
III.12 ADJOURNMENT
A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting of the board to another time and
place.
III.13 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting
of the board need not be given unless the meeting is adjourned for more than
twenty-four (24) hours. If the meeting is adjourned for more than twenty-four
(24) hours, then notice of the time and place of the adjourned meeting shall be
given before the adjourned meeting takes place, in the manner specified in
Section 3.9 of these bylaws, to the directors who were not present at the time
of the adjournment.
III.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of
directors may be taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board of directors.
III.15 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such
compensation, if any, for their services and such reimbursement of expenses as
may be fixed or determined by resolution of the board of directors. This Section
3.15 shall not be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee or otherwise
and receiving compensation for those services.
III.16 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation
of, or otherwise assist any officer or other employee of the corporation or any
of its subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
<PAGE> 11
-11-
III.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION
In the event only one director is required by these bylaws or
the certificate of incorporation, then any reference herein to notices, waivers,
consents, meetings or other actions by a majority or quorum of the directors
shall be deemed to refer to such notice, waiver, etc., by such sole director,
who shall have all the rights and duties and shall be entitled to exercise all
of the powers and shall assume all the responsibilities otherwise herein
described as given to the board of directors.
III.18 NOMINATION OF DIRECTORS; STOCKHOLDER BUSINESS AT ANNUAL
MEETINGS
Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, nominations for the election of directors may be made by the board
of directors or any nominating committee appointed by the board of directors or
by any stockholder entitled to vote in the election of directors generally.
However, a stockholder generally entitled to vote in the election of directors
may nominate one or more persons for election as directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the secretary of the corporation not later than (i)
with respect to an election to be held at an annual meeting of stockholders, 60
days in advance of such meeting and (ii) with respect to an election to be held
at a special meeting of stockholders for the election of directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth the following
information: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that the stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder, each
nominee or any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the board of directors of the
corporation; and (e) the consent of each nominee to serve as a director of the
corporation if so elected. At the request of the board of directors any person
nominated by the board of directors for election as a director shall furnish to
the secretary of the corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the corporation unless nominated
in accordance with the procedures set forth herein. A majority of the board of
directors may reject any nomination by a stockholder not timely
<PAGE> 12
-12-
made or otherwise not in accordance with the terms of this Section 3.18. If a
majority of the board of directors reasonably determines that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 3.18 in any material respect, the secretary of the
corporation shall promptly notify such stockholder of the deficiency in writing.
The stockholder shall have an opportunity to cure the deficiency by providing
additional information to the secretary within such period of time, not to
exceed ten days from the date such deficiency notice is given to the
stockholder, as a majority of the board of directors shall reasonably determine.
If the deficiency is not cured within such period, or if a majority of the board
of directors reasonably determines that the additional information provided by
the stockholder, together with the information previously provided, does not
satisfy the requirements of this Section 3.18 in any material respect, then a
majority of the board of directors may reject such stockholder's nomination. The
secretary of the corporation shall notify a stockholder in writing whether the
stockholder's nomination has been made in accordance with the time and
information requirements of this Section 3.18.
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting (i) by or at
the direction of the chairman of the meeting or (ii) by any stockholder of the
corporation who complies with the notice procedures set forth in this Section
3.18. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 60 days prior to the meeting; provided, however, that
in the event that less than 70 days notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be received not later than the close of business on the tenth
day following the earlier of the day on which such notice of the date of the
annual meeting was mailed or such public disclosure was made. A stockholder's
notice to the secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting the following information: (a) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation which are beneficially owned by the stockholder and (d) any material
direct or indirect interest, financial or otherwise of the stockholder or its
affiliates or associates in such business. The board of directors may reject any
stockholder proposal not timely made in accordance with this Section 3.18. If
the board of directors determines that the information provided in a
stockholder's notice does not satisfy the informational requirements hereof, the
secretary of the corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall then have an opportunity to cure
the deficiency by providing additional information to the secretary within such
period of time, not to exceed ten days from the date such deficiency notice is
<PAGE> 13
-13-
given to the stockholder, as the board of directors shall determine. If the
deficiency is not cured within such period, or if the board of directors
determines that the additional information provided by the stockholder, together
with the information previously provided, does not satisfy the requirements of
this Section 3.18, then the board of directors may reject such stockholder's
proposal. The Secretary of the corporation shall notify a stockholder in writing
whether the stockholder's proposal has been made in accordance with the time and
information requirements hereof
This provision shall not prevent the consideration and
approval or disapproval at an annual meeting of reports of officers, directors
and committees of the board of directors, but in connection therewith no new
business shall be acted upon at any such meeting unless stated, filed and
received as herein provided. Notwithstanding anything in these bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with procedures set forth in this Section 3.18.
ARTICLE IV
COMMITTEES
IV.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or more
committees, each consisting of two or more directors, to serve at the pleasure
of the board. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Any committee, to the extent provided in the resolution of the board, shall have
and may exercise all the powers and authority of the board, but no such
committee shall have the power or authority to (i) amend the certificate of
incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the board of directors as provided in Section 151(a) of the General
Corporation Law of Delaware, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the corporation),
(ii) adopt an agreement of merger or consolidation under Sections 251 or 252 of
the General Corporation Law of Delaware (relating to mergers and consolidations
of domestic and foreign corporations), (iii) recommend to the stockholders the
sale, lease or exchange of all or substantially all of the corporation's
property and assets, (iv) recommend to the stockholders a
<PAGE> 14
-14-
dissolution of the corporation or a revocation of a dissolution or (v) amend the
bylaws of the corporation; and, unless the board resolution establishing the
committee, the bylaws or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware
(relating to mergers of parent and subsidiary corporations).
IV.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and
held and taken in accordance with, the following provisions of Article III of
these bylaws: Section 3.6 (place of meetings; meetings by telephone), Section
3.8 (regular meetings), Section 3.9 (special meetings; notice), Section 3.10
(quorum), Section 3.11 (waiver of notice), Section 3.12 (adjournment), Section
3.13 (notice of adjournment) and Section 3.14 (board action by written consent
without meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not consistent with the
provisions of these bylaws.
IV.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
ARTICLE V
OFFICERS
V.1 OFFICERS
The Corporate Officers of the corporation shall be a
president, a secretary and a chief financial officer. The corporation may also
have, at the discretion of the board of directors, a chairman of the board, one
or more vice presidents (however denominated), one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these bylaws. Any
number of offices may be held by the same person.
<PAGE> 15
-15-
In addition to the Corporate Officers of the Company described
above, there may also be such Administrative Officers of the corporation as may
be designated and appointed from time to time by the president of the
corporation in accordance with the provisions of Section 5.12 of these bylaws.
V.2 ELECTION OF OFFICERS
The Corporate Officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 5.3 or
Section 5.5 of these bylaws, shall be chosen by the board of directors, subject
to the rights, if any, of an officer under any contract of employment, and shall
hold their respective offices for such terms as the board of directors may from
time to time determine.
V.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the
president to appoint, such other Corporate Officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such power and authority, and perform such duties as are provided in these
bylaws or as the board of directors may from time to time determine.
The president may from time to time designate and appoint
Administrative Officers of the corporation in accordance with the provisions of
Section 5.12 of these bylaws.
V.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of a Corporate Officer under
any contract of employment, any Corporate Officer may be removed, either with or
without cause, by the board of directors at any regular or special meeting of
the board or, except in case of a Corporate Officer chosen by the board of
directors, by any Corporate Officer upon whom such power of removal may be
conferred by the board of directors.
Any Corporate Officer may resign at any time by giving written
notice to the corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the corporation under any contract to which
the Corporate Officer is a party.
Any Administrative Officer designated and appointed by the
president may be removed, either with or without cause, at any time by the
president. Any Administrative Officer may resign at any time by giving written
notice to the president or to the secretary of the corporation.
<PAGE> 16
-16-
V.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these bylaws for regular appointments to that office.
V.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected,
shall, if present, preside at meetings of the board of directors and exercise
such other powers and perform such other duties as may from time to time be
assigned to him by the board of directors or as may be prescribed by these
bylaws. If there is no president, then the chairman of the board shall also be
the chief executive officer of the corporation and shall have the powers and
duties prescribed in Section 5.7 of these bylaws.
V.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by
the board of directors to the chairman of the board, if there be such an
officer, the president shall be the chief executive officer of the corporation
and shall, subject to the control of the board of directors, have general
supervision, direction and control of the business and the officers of the
corporation. He or she shall preside at all meetings of the stockholders and, in
the absence or nonexistence of a chairman of the board, at all meetings of the
board of directors. He or she shall have the general powers and duties of
management usually vested in the office of president of a corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or these bylaws.
V.8 VICE PRESIDENTS
In the absence or disability of the president, and if there is
no chairman of the board, the vice presidents, if any, in order of their rank as
fixed by the board of directors or, if not ranked, a vice president designated
by the board of directors, shall perform all the duties of the president and
when so acting shall have all the powers of, and be subject to all the
restrictions upon, the president. The vice presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the board of directors, these bylaws, the president or the
chairman of the board.
V.9 SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of the board
of directors, committees of directors and stockholders.
<PAGE> 17
-17-
The minutes shall show the time and place of each meeting, whether regular or
special (and, if special, how authorized and the notice given), the names of
those present at directors' meetings or committee meetings, the number of shares
present or represented at stockholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of the
corporation's transfer agent or registrar, as determined by resolution of the
board of directors, a share register or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of shares
held by each, the number and date of certificates evidencing such shares and the
number and date of cancellation of every certificate surrendered for
cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the board of directors required to be given
by law or by these bylaws. He or she shall keep the seal of the corporation, if
one be adopted, in safe custody and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or by these
bylaws.
V.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director for a purpose reasonably related to his
position as a director.
The chief financial officer shall deposit all money and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the board of directors. He or she shall
disburse the funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever they request
it, an account of all of his or her transactions as chief financial officer and
of the financial condition of the corporation, and shall have such other powers
and perform such other duties as may be prescribed by the board of directors or
these bylaws.
V.11 ASSISTANT SECRETARY
The assistant secretary, if any, or, if there is more than
one, the assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the secretary
and
<PAGE> 18
-18-
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
V.12 ADMINISTRATIVE OFFICERS
In addition to the Corporate Officers of the corporation as
provided in Section 5.1 of these bylaws and such subordinate Corporate Officers
as may be appointed in accordance with Section 5.3 of these bylaws, there may
also be such Administrative Officers of the corporation as may be designated and
appointed from time to time by the president of the corporation. Administrative
Officers shall perform such duties and have such powers as from time to time may
be determined by the president or the board of directors in order to assist the
Corporate Officers in the furtherance of their duties. In the performance of
such duties and the exercise of such powers, however, such Administrative
Officers shall have limited authority to act on behalf of the corporation as the
board of directors shall establish, including but not limited to limitations on
the dollar amount and on the scope of agreements or commitments that may be made
by such Administrative Officers on behalf of the corporation, which limitations
may not be exceeded by such individuals or altered by the president without
further approval by the board of directors.
V.13 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing powers, authority and duties, all
officers of the corporation shall respectively have such authority and powers
and perform such duties in the management of the business of the corporation as
may be designated from time to time by the board of directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
VI.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, indemnify any person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation shall mean any person (i) who is or
was a director or officer of the corpora-
<PAGE> 19
-19-
tion, (ii) who is or was serving at the request of the corporation as a director
or officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
The corporation shall be required to indemnify a director or
officer in connection with an action, suit, or proceeding (or part thereof)
initiated by such director or officer only if the initiation of such action,
suit, or proceeding (or part thereof) by the director or officer was authorized
by the board of Directors of the corporation.
The corporation shall pay the expenses (including attorney's
fees) incurred by a director or officer of the corporation entitled to
indemnification hereunder in defending any action, suit or proceeding referred
to in this Section 6.1 in advance of its final disposition; provided, however,
that payment of expenses incurred by a director or officer of the corporation in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by the director or officer to repay all
amounts advanced if it should ultimately be determined that the director or
officer is not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the corporation's Certificate of Incorporation,
these bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
Any repeal or modification of the foregoing provisions of this
Article shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
VI.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent
and in the manner permitted by the General Corporation Law of Delaware as the
same now exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the corporation (other than a director or officer) shall mean any person (i) who
is or was an employee or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
<PAGE> 20
-20-
employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
VI.3 INSURANCE
The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of the General
Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
VII.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive
office or at such place or places as designated by the board of directors, keep
a record of its stockholders listing their names and addresses and the number
and class of shares held by each stockholder, a copy of these bylaws as amended
to date, accounting books and other records of its business and properties.
Any stockholder of record, in person or by attorney or other
agent, shall, upon written demand under oath stating the purpose thereof, have
the right during the usual hours for business to inspect for any proper purpose
the corporation's stock ledger, a list of its stockholders, and its other books
and records and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
VII.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's
stock ledger, a list of its stockholders and its other books and records for a
purpose reasonably related to his or her position as a director.
<PAGE> 21
-21-
VII.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, if any, the president, any vice
president, the chief financial officer, the secretary or any assistant secretary
of this corporation, or any other person authorized by the board of directors or
the president or a vice president, is authorized to vote, represent and exercise
on behalf of this corporation all rights incident to any and all shares of the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
VII.4 CERTIFICATION AND INSPECTION OF BYLAWS
The original or a copy of these bylaws, as amended or
otherwise altered to date, certified by the secretary, shall be kept at the
corporation's principal executive office and shall be open to inspection by the
stockholders of the corporation, at all reasonable times during office hours.
ARTICLE VIII
GENERAL MATTERS
VIII.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not
precede the date upon which the resolution fixing the record date is adopted and
which shall not be more than sixty (60) days before any such action. In that
case, only stockholders of record at the close of business on the date so fixed
are entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then
the record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the board of directors adopts the
applicable resolution.
<PAGE> 22
-22-
VIII.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by
resolution which person or persons may sign or endorse all checks, drafts, other
orders for payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only the persons so
authorized shall sign or endorse those instruments.
VIII.3 CORPORATE CONTACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these
bylaws, may authorize and empower any officer or officers, or agent or agents,
to enter into any contract or execute any instrument in the name of and on
behalf of the corporation; such power and authority may be general or confined
to specific instances. Unless so authorized or ratified by the board of
directors or within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it liable for any
purpose or for any amount.
VIII.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES
The shares of the corporation shall be represented by
certificates, provided that the board of directors of the corporation may
provide by resolution or resolutions that some or all of any or all classes or
series of its stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such a
resolution by the board of directors, every holder of stock represented by
certificates and, upon request, every holder of uncertificated shares, shall be
entitled to have a certificate signed by, or in the name of the corporation by,
the chairman or vice-chairman of the board of directors, or the president or
vice-president, and by the chief financial officer or an assistant treasurer, or
the secretary or an assistant secretary of such corporation representing the
number of shares registered in certificate form. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
Certificates for shares shall be of such form and device as
the board of directors may designate and shall state the name of the record
holder of the shares represented thereby; its number; date of issuance; the
number of shares for which it is issued; a summary statement or reference to the
powers, designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer
<PAGE> 23
-23-
or registration of transfer, if any; a statement as to any applicable voting
trust agreement; and, if the shares be assessable, or, if assessments are
collectible by personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
The corporation may issue the whole or any part of its shares
as partly paid and subject to call for the remainder of the consideration to be
paid therefor. Upon the face or back of each stock certificate issued to
represent any such partly paid shares, or upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares of the same class,
but only upon the basis of the percentage of the consideration actually paid
thereon.
VIII.5 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class
of stock or more than one series of any class, then the powers, the
designations, the preferences and the relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate that the
corporation shall issue to represent such class or series of stock; provided,
however, that, except as otherwise provided in Section 202 of the General
Corporation Law of Delaware (relating to transfers of stock, stock certificates
and uncertificated stock), in lieu of the foregoing requirements there may be
set forth on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences and the relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
VIII.6 LOST CERTIFICATES
Except as provided in this Section 8.6, no new certificates
for shares shall be issued to replace a previously issued certificate unless the
latter is surrendered to the corporation and canceled at the same time. The
board of directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance of
replacement certificates on such terms and conditions as the board may
<PAGE> 24
-24-
require; the board may require indemnification of the corporation secured by a
bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it, including any expense or liability, on
account of the alleged loss, theft or destruction of the certificate or the
issuance of the replacement certificate.
VIII.7 TRANSFER AGENTS AND REGISTRARS
The board of directors may appoint one or more transfer agents
or transfer clerks, and one or more registrars, each of which shall be an
incorporated bank or trust company -- either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the board of directors may designate.
VIII.8 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions,
rules of construction and definitions in the General Corporation Law of Delaware
shall govern the construction of these bylaws. Without limiting the generality
of this provision, as used in these bylaws, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both an entity and a natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be
adopted, amended or repealed by the stockholders entitled to vote; provided,
however, that the corporation may, in its certificate of incorporation, confer
the power to adopt, amend or repeal bylaws upon the directors. The fact that
such power has been so conferred upon the directors shall not divest the
stockholders of the power, nor limit their power to adopt, amend or repeal
bylaws.
Whenever an amendment or new bylaw is adopted, it shall be
copied in the book of bylaws with the original bylaws, in the appropriate place.
If any bylaw is repealed, the fact of repeal with the date of the meeting at
which the repeal was enacted or the filing of the operative written consent(s)
shall be stated in said book.
<PAGE> 1
ENTEX INFORMATION SERVICES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (1)
(Unaudited)
<TABLE>
<CAPTION>
YEARS ENDED
----------------------------------------------------------------------
JUNE 28, JUNE 29, JUNE 30, JULY 2, JULY 3,
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Income (loss) before income taxes $ 18,560 $ 1,569 $(25,648) $(29,763) $ (5,546)
Fixed charges:
Interest expense, net 36,663 37,147 29,726 23,151 17,444
Interest component of rent expense 4,361 3,969 3,137 1,687 1,975
-------- -------- -------- -------- --------
Fixed charges $ 41,024 $ 41,116 $ 32,863 $ 24,838 $ 19,419
======== ======== ======== ======== ========
Earnings $ 59,584 $ 42,685 $ 7,215 $ (4,925) $ 13,873
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 1.45x 1.04x 0.22x (0.20)x 0.71x
======== ======== ======== ======== ========
</TABLE>
- ---------------
(1) For purposes of computing the ratio of earnings to fixed charges, fixed
charges consist of interest (including the interest component of rental
expenses) and amortization of debt expense. Earnings consist of
earnings from continuing operations before taxes, plus fixed charges.
For the fiscal years ended June 30, 1996, July 2, 1995 and July 3,
1994, earnings were insufficient to cover fixed charges by $25.6
million, $29.8 million and $5.5 million, respectively.
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
ENTEX Information Services, Inc.
The audits referred to in our report dated August 21, 1998, included the
related financial statement schedule as of June 28, 1998, and for each of the
years in the three-year period ended June 28, 1998, included in the registration
statement. The financial statement schedule is the responsibility of the
Company's management. Our responsibility is to express an opinion on the
financial statement schedule based on our audits. In our opinion, such financial
statement schedule, when considered in relation to the basic consolidated
financial statements taken as a whole, presents fairly in all material respects
the information set forth therein.
We consent to the use of our reports included herein and to the reference
to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Stamford, Connecticut
September 30, 1998
<PAGE> 1
LETTER OF TRANSMITTAL
ENTEX INFORMATION SERVICES, INC.
OFFER TO EXCHANGE ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006
PURSUANT TO THE PROSPECTUS, DATED , 1998
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
MARINE MIDLAND BANK, as Exchange Agent
<TABLE>
<S> <C> <C>
BY REGISTERED OR CERTIFIED MAIL: BY OVERNIGHT COURIER: BY HAND:
MARINE MIDLAND BANK MARINE MIDLAND BANK MARINE MIDLAND BANK
140 BROADWAY, LEVEL A 140 BROADWAY, LEVEL A 140 BROADWAY, LEVEL A
NEW YORK, NEW YORK 10005-1180 NEW YORK, NEW YORK 10005-1180 NEW YORK, NEW YORK 10005-1180
ATTENTION: CORPORATE TRUST OPERATIONS ATTENTION: CORPORATE TRUST OPERATIONS
</TABLE>
BY FACSIMILE:
(FOR ELIGIBLE INSTITUTIONS ONLY)
(212) 658-2292
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE
A VALID DELIVERY.
The undersigned acknowledges that he or she has received and reviewed the
Prospectus, dated , 1998 (the "Prospectus"), of ENTEX Information
Services, Inc., a Delaware corporation (the "Company"), ENTEX Information
Services of Michigan, Inc., a Michigan corporation, ENTEX Information Services
of Colorado, Inc., a Colorado corporation, ENTEX Services, Inc., a Delaware
corporation, Erlanger Land Co., Inc., a Delaware corporation, and FCP
Technologies, a Delaware corporation, and this Letter of Transmittal, which
together constitute the Company's offer (the "Exchange Offer") to exchange up to
$100,000,000 aggregate principal amount of the Company's 12 1/2% Senior
Subordinated Notes Due 2006 (the "New Notes"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act"), for a like
principal amount of the Company's issued and outstanding 12 1/2% Senior
Subordinated Notes Due 2006 (the "Old Notes"), which have not been so
registered.
For each Old Note accepted for exchange, the registered holder of such Old
Note (collectively with all other registered holders of Old Notes, the
"Holders") will receive a New Note having a principal amount equal to that of
the surrendered Old Note. Registered holders of New Notes on the relevant record
date for the first interest payment date following the consummation of the
Exchange Offer will receive interest accruing from the most recent date to which
interest has been paid or, if no interest has been paid, from February 1, 1999.
Old Notes accepted for exchange will cease to accrue interest from and after the
date of consummation of the Exchange Offer. Accordingly, Holders whose Old Notes
are accepted for exchange will not receive any payment in respect of accrued
interest on such Old Notes otherwise payable on any interest payment date the
record date for which occurs on or after consummation of the Exchange Offer.
This Letter of Transmittal is to be completed by a Holder of Old Notes
either if certificates are to be forwarded herewith or if a tender of
certificates for Old Notes, if available, is to be made by book-entry transfer
to the account maintained by the Exchange Agent at The Depository Trust Company
(the "Book-Entry Transfer Facility") pursuant to the procedures set forth in
"The Exchange Offer -- Acceptance of Old Notes for Exchange; Delivery of New
Notes" section of the Prospectus. Holders of Old Notes whose certificates are
not immediately available, or who are unable to deliver their certificates or
confirmation of the book-entry tender of their Old Notes into the Exchange
Agent's account at the Book-Entry Transfer Facility (a "Book-Entry
Confirmation") and all other documents required by this Letter of Transmittal to
the Exchange Agent on or prior to the Expiration Date, must tender their Old
Notes according to the guaranteed delivery procedures set forth in "The Exchange
Offer -- Guaranteed Delivery Procedures" section of the Prospectus. See
Instruction 1. Delivery of documents to the Book-Entry Transfer Facility does
not constitute delivery to the Exchange Agent.
THE UNDERSIGNED HAS COMPLETED THE APPROPRIATE BOXES BELOW AND SIGNED THIS LETTER
OF TRANSMITTAL TO INDICATE THE ACTION THE UNDERSIGNED DESIRES TO TAKE WITH
RESPECT TO THE EXCHANGE OFFER.
<PAGE> 2
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Notes indicated below. Subject to, and effective upon, the acceptance for
exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns
and transfers to, or upon the order of, the Company all right, title and
interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Old Notes
tendered hereby and that the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim when the same are accepted by the Company. The
undersigned hereby further represents that any New Notes acquired in exchange
for Old Notes tendered hereby will have been acquired in the ordinary course of
business of the person receiving such New Notes, whether or not such person is
the undersigned, that neither the Holder of such Old Notes nor any such other
person has an arrangement or understanding with any person to participate in a
distribution of such New Notes and that neither the Holder of such Old Notes nor
any such other person is an "affiliate" (as defined in Rule 405 under the
Securities Act) of the Company.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance on interpretations by the staff of the Securities and Exchange
Commission (the "SEC"), as set forth in no-action letters issued to third
parties, that the New Notes issued pursuant to the Exchange Offer in exchange
for the Old Notes may be offered for resale, resold and otherwise transferred by
a Holder thereof (other than a Holder that is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act) without compliance with
the registration and prospectus delivery provisions of the Securities Act,
provided that such New Notes are acquired in the ordinary course of such
Holder's business and such Holder has no arrangement with any person to
participate in a distribution of such New Notes. However, the SEC has not
considered the Exchange Offer in the context of a no-action letter and there can
be no assurance that the staff of the SEC would make a similar determination
with respect to the Exchange Offer as in other circumstances. If the undersigned
is not a broker-dealer, the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of New Notes and has no
arrangement or understanding to participate in a distribution of New Notes. If
any Holder is an affiliate of the Company, is engaged in or intends to engage
in, or has any arrangement or understanding with any person to participate in, a
distribution of the New Notes to be acquired pursuant to the Exchange Offer,
such Holder could not rely on the applicable interpretations of the staff of the
SEC and must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with any resale transaction. If the
undersigned is a broker-dealer that will receive New Notes for its own account
in exchange for Old Notes that were acquired as a result of market-making
activities or other trading activities, it acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such New Notes. However, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
conferred or agreed to be conferred in this Letter of Transmittal and every
obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in "The Exchange
Offer -- Withdrawal of Tenders" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" herein, please issue the New Notes (and, if applicable, substitute
certificates representing Old Notes for any Old Notes not exchanged) in the name
of the undersigned or, in the case of a book-entry delivery of Old Notes, please
credit the account indicated below maintained at the Book-Entry Transfer
Facility. Similarly, unless otherwise indicated under the box entitled "Special
Delivery Instructions" herein, please send the New Notes (and, if applicable,
substitute certificates representing Old Notes for any Old Notes not exchanged)
to the undersigned at the address shown in the box herein entitled "Description
of Old Notes Delivered."
<PAGE> 3
THE UNDERSIGNED, BY COMPLETING THE BOX BELOW ENTITLED "DESCRIPTION OF OLD
NOTES DELIVERED" BELOW AND SIGNING THIS LETTER, WILL BE DEEMED TO
HAVE TENDERED OLD NOTES AS SET FORTH IN SUCH BOX.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the certificate numbers and principal
amount of Old Notes should be listed on a separate signed schedule affixed
hereto.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES DELIVERED
- -----------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS OF REGISTERED HOLDER(S) AGGREGATE PRINCIPAL AMOUNT
(PLEASE FILL-IN, IF BLANK) CERTIFICATE NUMBER(S)* PRINCIPAL AMOUNT TENDERED**
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
Totals:
- -----------------------------------------------------------------------------------------------------------------------
* Need not be completed if Old Notes are being tendered by book-entry transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the Old Notes
represented by the listed certificates. See Instruction 2. Old Notes tendered hereby must be in denominations of
principal amount of $1,000 and any integral multiple thereof. See Instruction 1.
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
----------------------------------------------------------------------------
Account Number
----------------------------------------------------------------------------
Transaction Code Number
----------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING:
Name of Registered Holder
----------------------------------------------------------------------------
Window Ticket Number (if any)
----------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
---------------------------------------------------------------
Name of Institution Which Guaranteed Delivery
-------------------------------------------------------------------
If Delivered by Book-Entry Transfer, Complete the Following:
Account Number
----------------------------------------------------------------------------
Transaction Code Number
----------------------------------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE ADDITIONAL COPIES
OF THE PROSPECTUS AND ANY AMENDMENTS OR SUPPLEMENTS THERETO. (UNLESS
OTHERWISE SPECIFIED, 10 ADDITIONAL COPIES WILL BE FURNISHED.)
Name
----------------------------------------------------------------------------
Address
----------------------------------------------------------------------------
<PAGE> 4
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Notes not exchanged and/or New
Notes are to be issued in the name of someone other than the person or persons
whose signature(s) appear(s) on this Letter of Transmittal below or if Old Notes
delivered by book-entry transfer which are not accepted for exchange are to be
returned by credit to an account maintained at the Book-Entry Transfer Facility
other than the account indicated above.
Issue New Notes and/or Old Notes to:
Name:
- ------------------------------------------------------
(PLEASE TYPE OR PRINT)
Address:
- ------------------------------------------------------
- ------------------------------------------------------
(ZIP CODE)
[ ] Credit unexchanged Old Notes delivered by book-entry transfer to the
Book-Entry Transfer Facility account set forth below.
------------------------------------------------------
(BOOK-ENTRY TRANSFER FACILITY ACCOUNT)
================================================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4)
To be completed ONLY if certificates for Old Notes not exchanged and/or New
Notes are to be sent to someone other than the person or persons whose
signature(s) appear(s) on this Letter of Transmittal below or to such person or
persons at an address other than shown in the box entitled "Description of Old
Notes Delivered" on this Letter of Transmittal above.
Mail New Notes and/or Old Notes to:
Name:
- ------------------------------------------------------
(PLEASE TYPE OR PRINT)
Address:
- ------------------------------------------------------
- ------------------------------------------------------
(ZIP CODE)
<PAGE> 5
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU
HEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY
CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED
DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING ANY BOX ABOVE
PLEASE SIGN HERE
(ALL TENDERING HOLDERS MUST COMPLETE THIS LETTER OF TRANSMITTAL
AND THE ACCOMPANYING SUBSTITUTE FORM W-9)
Dated:
- --------------------------- , 199
X
- --------------------------------------------------------------------------------
X
- --------------------------------------------------------------------------------
(SIGNATURE(S)
Area Code and Telephone Number:
- --------------------------------------------------------------------------------
If a holder is tendering any Old Notes, this letter must be signed by the
Holder(s) as the name(s) appear(s) on the certificate(s) for the Old Notes or by
any person(s) authorized to become Holder(s) by endorsements and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, officer or other person acting in a fiduciary or representative
capacity, please set forth full title. See Instruction 3.
Name:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity (full title):
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Telephone:
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEE (IF REQUIRED BY INSTRUCTION 3)
Signature(s) Guarantees by an Eligible Institution:
- -----------------------------------------------------------------
(AUTHORIZED SIGNATURE)
- --------------------------------------------------------------------------------
(TITLE)
- --------------------------------------------------------------------------------
(NAME AND FIRM)
Dated:
- ---------------------------, 199
<PAGE> 6
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE
THE 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006 OF ENTEX INFORMATION SERVICES,
INC., WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, FOR ANY AND ALL OF THE OUTSTANDING 12 1/2% SENIOR SUBORDINATED
NOTES DUE 2006 OF ENTEX INFORMATION SERVICES, INC.
1. DELIVERY OF THIS LETTER AND OLD NOTES; GUARANTEED DELIVERY PROCEDURES.
This Letter of Transmittal is to be completed by Holders of Old Notes
either if certificates are to be forwarded herewith or if tenders are to be made
pursuant to the procedures for delivery by book-entry transfer set forth in "The
Exchange Offer -- Acceptance of Old Notes for Exchange; Delivery of New Notes"
section of the Prospectus. Certificates for all physically tendered Old Notes,
or Book-Entry Confirmation, as the case may be, as well as a properly completed
and duly executed Letter of Transmittal (or a manually signed facsimile hereof)
and any other documents required by this Letter of Transmittal, must be received
by the Exchange Agent at the address set forth herein on or prior to the
Expiration Date, or the tendering holder must comply with the guaranteed
delivery procedures set forth below. Old Notes tendered hereby must be in
denominations of principal amount of $1,000 and any integral multiple thereof.
Holders whose certificates for Old Notes are not immediately available or
who cannot deliver their certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Old Notes
pursuant to the guaranteed delivery procedures set forth in "The Exchange
Offer -- Guaranteed Delivery Procedures" section of the Prospectus. Pursuant to
such procedures, (i) such tender must be made through an Eligible Institution,
(ii) on or prior to 5:00 p.m., New York City time, on the Expiration Date, the
Exchange Agent must receive from such Eligible Institution a properly completed
and duly executed Letter of Transmittal (or a facsimile thereof) and Notice of
Guaranteed Delivery, substantially in the form provided by the Company (by
telegram, telex, facsimile transmission, mail or hand delivery), setting forth
the name and address of the holder of Old Notes and the amount of Old Notes
tendered, stating that the tender is being made thereby and guaranteeing that
within three New York Stock Exchange ("NYSE") trading days after the date of
execution of the Notice of Guaranteed Delivery, the certificates for all
physically tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, and any other documents required by this
Letter of Transmittal will be deposited by the Eligible Institution with the
Exchange Agent, and (iii) the certificates for all physically tendered Old
Notes, in proper form for transfer, or Book-Entry Confirmation, as the case may
be, and any other documents required by this Letter of Transmittal, are
deposited by the Eligible Institution within three NYSE trading days after the
date of execution of the Notice of Guaranteed Delivery.
The method of delivery of this Letter of Transmittal, the Old Notes and all
other required documents is at the election and risk of the tendering Holders,
but delivery will be deemed made only upon actual receipt or confirmation by the
Exchange Agent. If Old Notes are sent by mail, it is suggested that the mailing
be registered mail, properly insured, with return receipt requested, and made
sufficiently in advance of the Expiration Date to permit delivery to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
See "The Exchange Offer" section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER).
If less than all of the Old Notes evidenced by a submitted certificate are
to be tendered, the tendering holder(s) should fill in the aggregate principal
amount of Old Notes to be tendered in the box above entitled "Description of Old
Notes -- Principal Amount Tendered." A reissued certificate representing the
balance of nontendered Old Notes will be sent to such tendering Holder, unless
otherwise provided in the appropriate box of this Letter of Transmittal,
promptly after the Expiration Date. See Instruction 4. All of the Old Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
<PAGE> 7
3. SIGNATURES ON THIS LETTER, BOND POWERS AND ENDORSEMENTS, GUARANTEE OF
SIGNATURES.
If this Letter of Transmittal is signed by the Holder of the Old Notes
tendered hereby, the signature must correspond exactly with the name as written
on the face of the certificates without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners,
all of such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this letter as there are different registrations of certificates.
When this Letter of Transmittal is signed by the Holder or Holders of the
Old Notes specified herein and tendered hereby, no endorsements of certificates
or separate bond powers are required. If however, the New Notes are to be
issued, or any untendered Old Notes are to be reissued, to a person other than
the Holder, then endorsements of any certificates transmitted hereby or separate
bond powers are required. Signatures on such certificates(s) must be guaranteed
by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the Holder
or Holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the Holder or Holders appear(s) on the
certificate(s) and signatures on such certificate(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal or any certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS
REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FINANCIAL INSTITUTION
(INCLUDING MOST BANKS, SAVINGS AND LOAN ASSOCIATIONS AND BROKERAGE HOUSES) THAT
IS A PARTICIPANT IN THE SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE NEW
YORK STOCK EXCHANGE MEDALLION SIGNATURE PROGRAM OR THE STOCK EXCHANGES MEDALLION
PROGRAM (EACH, AN "ELIGIBLE INSTITUTION").
SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE
INSTITUTION, PROVIDED THE OLD NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF
OLD NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY
PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON A
SECURITY POSITION LISTING AS THE HOLDER OF SUCH OLD NOTES) WHO HAS NOT COMPLETED
THE BOX ENTITLED "SPECIAL ISSUANCE INSTRUCTIONS" OR "SPECIAL DELIVERY
INSTRUCTIONS" ON THIS LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE
INSTITUTION.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering Holders of Old Notes should indicate in the applicable box the
name and address to which New Notes issued pursuant to the Exchange Offer and/or
substitute certificates evidencing Old Notes not exchanged are to be issued or
sent, if different from the name or address of the person signing this Letter of
Transmittal. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. Holders tendering Old Notes by book-entry transfer may request that
Old Notes not exchanged be credited to such account maintained at the Book-Entry
Transfer Facility as such Holder may designate hereon. If no such instructions
are given, such Old Notes not exchanged will be returned to the name and address
of the person signing this Letter of Transmittal.
5. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer
of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New
Notes and/or substitute Old Notes not exchanged are to be delivered to, or are
to be registered or issued in the name of, any person other than the Holder of
the Old Notes tendered hereby, or if tendered
2
<PAGE> 8
Old Notes are registered in the name of any person other than the person signing
this Letter of Transmittal, or if a transfer tax is imposed for any reason other
than the transfer of Old Notes to the Company or its order pursuant to the
Exchange Offer, the amount of any such transfer taxes (whether imposed on the
registered holder or any other persons) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted herewith, the amount of such transfer taxes will be billed to such
tendering Holder and the Exchange Agent will retain possession of an amount of
New Notes with a face amount equal to the amount of such transfer taxes due by
such tendering Holder pending receipt by the Exchange Agent of the amount of
such taxes.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes specified in this Letter of
Transmittal.
6. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive satisfaction of any or all
conditions enumerated in the Prospectus.
7. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders of Old Notes, by execution of this Letter of
Transmittal, shall waive any right to receive notice of the acceptance of their
Old Notes for exchange.
Although the Company intends to notify Holders of defects or irregularities
with respect to tenders of Old Notes, neither the Company, the Exchange Agent
nor any other person shall incur any liability for failure to give any such
notice.
8. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
Any Holder whose Old Notes have been mutilated, lost, stolen or destroyed
should contact the Exchange Agent at the address indicated above for further
instructions.
9. WITHDRAWAL OF TENDERS.
Tenders of Old Notes may be withdrawn at any time prior to 5:00 P.M., New
York City time, on the Expiration Date. For a withdrawal to be effective, a
written notice of withdrawal must be received by the Exchange Agent at one of
the addresses set forth above. Any such notice of withdrawal must specify the
name of the person having tendered the Old Notes to be withdrawn, identify the
Old Notes to be withdrawn (including the principal amount of such Old Notes),
and (where certificates for Old Notes have been transmitted) specify the name in
which such Old Notes are registered, if different from that of the withdrawing
Holder. If certificates for Old Notes have been delivered or otherwise
identified to the Exchange Agent, then prior to the release of such certificates
the withdrawing Holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with signatures
guaranteed by an Eligible Institution unless such Holder is an Eligible
Institution in which case such guarantee will not be required. If Old Notes have
been tendered pursuant to the procedure for book-entry transfer described above,
any notice of withdrawal must specify the name and number of the account at the
Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and
otherwise comply with the procedures of such facility. All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company, whose determination will be final and binding on
all parties. Any Old Notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the Exchange Offer. Any Old Notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to the Holder thereof without cost to such Holder (or, in the case
of Old Notes tendered by book-entry transfer into the Exchange Agent's account
at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures described above, such Old Notes will be credited to an account
maintained with such Book-Entry Transfer Facility for the Old Notes) as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Old Notes may be retendered by following one of the
procedures set forth in "The Exchange Offer -- Procedures for Tendering Old
Notes" section of the Prospectus at any time on or prior to the Expiration Date.
3
<PAGE> 9
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus, this Letter of Transmittal and other
related documents may be directed to the Exchange Agent at
IMPORTANT TAX INFORMATION
Under current federal income tax law, a Holder of New Notes is required to
provide the Company (as payor) with such Holder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 or otherwise establish a
basis for exemption from backup withholding to prevent backup withholding on any
New Notes delivered pursuant to the Exchange Offer and any payments received in
respect of the New Notes. If a Holder of New Notes is an individual, the TIN is
such holder's social security number. If the Company is not provided with the
correct taxpayer identification number, a Holder of New Notes may be subject to
a $50 penalty imposed by the Internal Revenue Service. Accordingly, each
prospective Holder of New Notes to be issued pursuant to Special Issuance
Instructions should complete the attached Substitute Form W-9. The Substitute
Form W-9 need not be completed if the box entitled Special Issuance Instructions
has not been completed.
Certain Holders of New Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. Exempt prospective Holders of New Notes should indicate
their exempt status on Substitute Form W-9. A foreign individual may qualify as
an exempt recipient by submitting to the Company, through the Exchange Agent, a
properly completed Internal Revenue Service Form W-8 (which the Exchange Agent
will provide upon request) signed under penalty of perjury, attesting to the
Holder's exempt status. See the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Company is required to withhold 31% of
any payment made to the Holder of New Notes or other payee. Backup withholding
is not an additional federal income tax. Rather, the federal income tax
liability of persons subject to backup withholding will be reduced by the amount
of tax withheld. If withholding results in an overpayment of taxes, a refund may
be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on any New Notes delivered pursuant to the
Exchange Offer and any payments received in respect of the New Notes, each
prospective Holder of New Notes to be issued pursuant to Special Issuance
Instructions should provide the Company, through the Exchange Agent, with
either: (i) such prospective Holder's correct TIN by completing the form below,
certifying that the TIN provided on Substitute Form W-9 is correct (or that such
prospective Holder is awaiting a TIN) and that (A) such prospective Holder has
not been notified by the Internal Revenue Service that he or she is subject to
backup withholding as a result of a failure to report all interest or dividends
or (B) the Internal Revenue Service has notified such prospective Holder that he
or she is no longer subject to backup withholding; or (ii) an adequate basis for
exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The prospective Holder of New Notes to be issued pursuant to Special
Issuance Instructions is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the prospective
record owner of the New Notes. If the New Notes will be held in more than one
name or are not held in the name of the actual owner, consult the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional guidance regarding which number to report.
4
<PAGE> 10
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE IMPORTANT TAX INFORMATION)
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
PAYOR'S NAME: MARINE MIDLAND BANK
- --------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT OR
FORMW-9 INDICATE THAT YOU APPLIED FOR A TIN AND CERTIFY BY
SIGNING AND DATING BELOW. TIN: --------------------------
Social Security Number or
Employer Identification Number
TIN Applied for [ ]
-------------------------------------------------------------------------------------------
Department of the PART 2 -- CERTIFICATION -- UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
Treasury Internal
Revenue Service (1) The number shown on this form is my correct Taxpayer Identification Number (or I am
PAYOR'S REQUEST FOR waiting for a number to be issued to me);
TAXPAYER IDENTIFICATION
NUMBER ("TIN") AND (2) I am not subject to backup withholding either because: (a) I am exempt from backup
CERTIFICATION withholding, or (b) I have not been notified by the Internal Revenue Service (the
"IRS") that I am subject to backup withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has notified me that I am no longer subject to
backup withholding; and
(3) any other information provided on this form is true and correct.
Signature: ------------------------------------------------- Date: -----------------------
- --------------------------------------------------------------------------------------------------------------------------
You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to
backup withholding because of underreporting of interest or dividends on your tax return and you have not been notified
by the IRS that you are no longer subject to backup withholding.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE BY A PROSPECTIVE HOLDER OF NEW NOTES TO BE ISSUED PURSUANT TO THE
SPECIAL ISSUANCE INSTRUCTIONS ABOVE TO COMPLETE AND RETURN THIS FORM MAY
RESULT IN BACKUP WITHHOLDING OF 31% OF THE NEW NOTES DELIVERED TO YOU
PURSUANT TO THE EXCHANGE OFFER AND ANY PAYMENTS RECEIVED BY YOU IN RESPECT
OF THE NEW NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
- -------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange, 31% of all
reportable payments made to me thereafter will be withheld until I provide a
number.
- ------------------------------------------------------ -----------------
Signature Date
5
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
ENTEX INFORMATION SERVICES, INC.
OFFER TO EXCHANGE ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006,
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS 12 1/2% SENIOR SUBORDINATED NOTES DUE 2006
PURSUANT TO THE PROSPECTUS, DATED , 1998
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
As set forth in the Prospectus dated , 1998 (the
"Prospectus") under the caption "The Exchange Offer -- Guaranteed Delivery
Procedures" and the accompanying Letter of Transmittal (the "Letter of
Transmittal") and Instruction 1 thereto, this form, or one substantially
equivalent hereto, must be used to accept the Exchange Offer if certificates
representing the 12 1/2% Senior Subordinated Notes due 2006 (the "Old Notes") of
ENTEX Information Services, Inc., a Delaware corporation (the "Company"), are
not immediately available or if the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit a Holder's certificates or
other required documents to reach the Exchange Agent on or prior to the
Expiration Date. Such form may be delivered by hand or transmitted by telegram,
telex, facsimile transmission or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution unless such form is submitted on behalf of
an Eligible Institution. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Prospectus.
The Exchange Agent is
MARINE MIDLAND BANK
<TABLE>
<S> <C> <C>
BY REGISTERED OR CERTIFIED MAIL: BY OVERNIGHT COURIER: BY HAND:
MARINE MIDLAND BANK MARINE MIDLAND BANK MARINE MIDLAND BANK
140 BROADWAY, LEVEL A 140 BROADWAY, LEVEL A 140 BROADWAY, LEVEL A
NEW YORK, NEW YORK 10005-1180 NEW YORK, NEW YORK 10005-1180 NEW YORK, NEW YORK 10005-1180
ATTENTION: CORPORATE TRUST OPERATIONS ATTENTION: CORPORATE TRUST OPERATIONS
</TABLE>
BY FACSIMILE:
(FOR ELIGIBLE INSTITUTIONS ONLY)
(212) 658-2292
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION VIA FACSIMILE NUMBER
OTHER THAN THE ONES ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE> 2
Ladies & Gentlemen:
Upon the terms and subject to the conditions set forth in the Prospectus
and the accompanying Letter of Transmittal, receipt of which is hereby
acknowledged, the undersigned hereby tenders to ENTEX Information Services,
Inc., a Delaware corporation (the "Company"), $ principal amount of Old
Notes, pursuant to the guaranteed delivery procedures set forth in the
Prospectus and accompanying Letter of Transmittal.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
CERTIFICATE NUMBERS OF OLD NOTES PRINCIPAL AMOUNT
(IF AVAILABLE) TENDERED
- -------------------------------------------------------------------------------------------------------
<S> <C>
- --------------------------------------------------- ---------------------------------------------------
- --------------------------------------------------- ---------------------------------------------------
- --------------------------------------------------- ---------------------------------------------------
- --------------------------------------------------- ---------------------------------------------------
- --------------------------------------------------- ---------------------------------------------------
</TABLE>
If Old Notes will be tendered by book-entry transfer to the Depositary
Trust Company, provide account number.
Account No.
---------------------------------------
The undersigned authorizes the Exchange Agent to deliver this Notice of
Guaranteed Delivery to the Company and Marine Midland Bank, as Trustee with
respect to the Old Notes tendered pursuant to the Exchange Offer.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding upon the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
SIGN HERE
- --------------------------------------------------------------------------------
SIGNATURE(S) OF REGISTERED HOLDER(S) OR AUTHORIZED SIGNATORY
- --------------------------------------------------------------------------------
NAME(S) OF REGISTERED HOLDER(S)
(PLEASE TYPE OR PRINT)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ADDRESS
- --------------------------------------------------------------------------------
ZIP CODE
- --------------------------------------------------------------------------------
AREA CODE AND TELEPHONE NUMBER
Dated: , 1997
-------------------
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc., or a commercial bank
or trust company having an office in the United States, hereby (a) represents
that the above-named person(s) has a net long position in the Old Notes tendered
hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of
1934, as amended, (b) represents that such tender of Old Notes complies with
Rule 14e-4 and (c) guarantees delivery to the Exchange Agent of certificates
representing the Old Notes tendered hereby, in proper form for transfer, or
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at a Book-Entry Transfer Facility (as defined in the Prospectus), in
each case together with a properly completed and duly executed Letter of
Transmittal with any required signature guarantees and any other documents
required by the Letter of Transmittal, within three New York Stock Exchange
trading days after the date hereof.
<TABLE>
<S> <C>
- ---------------------------------------------- ----------------------------------------------
NAME OF FIRM TITLE
- ---------------------------------------------- ----------------------------------------------
AUTHORIZED SIGNATURE NAME (PLEASE TYPE OR PRINT)
- ---------------------------------------------- ----------------------------------------------
ADDRESS Dated: , 1998
- ---------------------------------------------- --------------------
AREA CODE AND TELEPHONE NUMBER
</TABLE>
NOTE: DO NOT SEND CERTIFICATES REPRESENTING OLD NOTES WITH THIS FORM.
CERTIFICATES FOR OLD NOTES MUST BE SENT WITH YOUR LETTER OF TRANSMITTAL.
