<PAGE>
As filed with the Securities and Exchange Commission on July 19, 1999
Registration No. 333-81737
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
Pre-Effective Amendment No. 1 to
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
Building One Services Corporation
(Exact name of Registrant as specified in its charter)
Delaware 7600 52-2054952
(State or other (Primary Standard (IRS Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Number)
organization)
800 Connecticut Avenue, N.W., Suite 1111
Washington, DC 20006
(202) 261-6000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
Joseph M. Ivey
President and Chief Executive Officer
Building One Services Corporation
800 Connecticut Avenue, N.W., Suite 1111
Washington, DC 20006
(202) 261-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
F. Traynor Beck, Esquire Linda L. Griggs, Esquire
Executive Vice President, General Morgan, Lewis and Bockius LLP
Counsel and Secretary 1800 M Street, N.W.
800 Connecticut Avenue, N.W., Suite Washington, DC 20036
1111 (202) 467-7000
Washington, DC 20006
(202) 261-6000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(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
Title of each class of maximum Proposed maximum Amount of
securities to be Amount to be offering price aggregate offering registration
registered registered per unit(1) price(1) fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
10 1/2% Senior
Subordinated Notes due
2009.................. $200,000,000 100% $200,000,000 $55,600 (2)
- -------------------------------------------------------------------------------------
Subsidiary Guarantees of
10 1/2% Senior
Subordinated Notes due
2009.................. $200,000,000 -- -- (3)
- -------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(2) under the Securities Act of 1933, as amended.
(2) Previously paid.
(3) Pursuant to Rule 457(n) under the Securities Act, no separate fee is
payable for the subsidiary guarantees of the notes. The subsidiaries of
the registrant issuing these guarantees are listed on Table 1 to this
Registration Statement Cover Page.
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 the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE 1
BUILDING ONE SERVICES CORPORATION; SUBSIDIARY GUARANTORS
<TABLE>
<CAPTION>
Federal ID
Subsidiary Number
- --------------------------------------------------------------------- ----------
<S> <C>
Advent Electric Co., Inc.
(a Tennessee corporation)............................................ 62-1775021
American Air Co., Inc.
(a California corporation)........................................... 94-2233668
Barnes Ivey Mechanical Company, L.L.C.
(a North Carolina corporation)....................................... 64-0849022
Beltline Mechanical Services, Inc.
(a Texas corporation)................................................ 75-2198127
Boxberger, Inc.
(a North Carolina corporation)....................................... 66-1680974
Brazosport Management, Inc.
(a Texas corporation)................................................ 75-0554372
Building One Mechanical Services, Inc.
(a Mississippi corporation).......................................... 52-2125884
Building One Service Solutions, Inc.
(a Virginia corporation)............................................. 54-1732370
BUYR, Inc.
(a Delaware corporation)............................................. 62-2073333
Chambers Electronic Communications, Inc.
(an Arizona corporation)............................................. 86-0919799
Consolidated Electrical Group, Inc.
(a Delaware corporation)............................................. 52-2054952
Cramar Electric, Inc.
(a Kansas corporation)............................................... 48-1181737
Crest International, LLC
(a Wisconsin corporation)............................................ 39-1832516
DFW Mechanical Services, Inc.
(a Texas corporation)................................................ 75-1767390
Electrical Contracting, Inc.
(a California corporation)........................................... 33-0020560
Electrical Design & Construction, Inc.
(an Oklahoma corporation)............................................ 73-1061381
Engineering Design Group, Inc.
(an Oklahoma corporation)............................................ 73-0785554
Flor-Shin, Inc.
(a South Carolina corporation)....................................... 57-0735264
Fred Clark Electrical Contractors, Inc.
(a Texas corporation)................................................ 73-1291869
G.S. Financial, Inc.
(a Nevada corporation)............................................... 76-0194729
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Federal ID
Subsidiary Number
- --------------------------------------------------------------------- ----------
<S> <C>
G.S. Group, Inc.
(a Nevada corporation)............................................... 88-0394187
Gamewell Mechanical, Inc.
(a North Carolina corporation)....................................... 56-2116919
Garfield-Indecon Electrical Services, Inc.
(an Ohio corporation)................................................ 31-1589024
G.S.I. of California, Inc.
(a California corporation)........................................... 76-0266448
Gulf States, Inc.
(a Texas corporation)................................................ 74-1652173
Hunt Electric, Inc.
(a Utah corporation)................................................. 87-0436108
Ivey Mechanical Company, Inc.
(a Mississippi corporation).......................................... 64-8900367
Ivey Mechanical Services, L.L.C.
(a Texas corporation)................................................ 75-2721989
Lexington/Ivey Mechanical Company, LLC
(a Kentucky corporation)............................................. 31-1559756
McIntosh Mechanical, Inc.
(a South Carolina corporation)....................................... 58-2423622
Mountain View Electric, Inc.
(a Colorado corporation)............................................. 84-0757008
National Network Services, Inc.
(a Delaware corporation)............................................. 84-1476279
Oil Capital Electric, Inc.
(an Oklahoma corporation)............................................ 73-0942941
Omni Mechanical Company
(an Oklahoma corporation)............................................ 94-2233668
Omni Mechanical Services
(an Oklahoma corporation)............................................ 73-1289880
Perimeter Maintenance Corporation
(a Georgia corporation).............................................. 68-1616500
Potter Electric Co., Inc.
(a Nevada corporation)............................................... 88-0109547
Pro Wire Security Systems, Inc.
(a Kansas corporation)............................................... 48-1206187
Regency Electric Company Atlanta Office
(a Georgia corporation).............................................. 58-1821158
Regency Electric Company Charlotte Office, Inc.
(a North Carolina corporation)....................................... 56-1871003
Regency Electric Company Jacksonville Office, Inc.
(a Florida corporation).............................................. 59-2899507
Regency Electric Company Memphis Office, Inc.
(a Tennessee corporation)............................................ 59-3553585
Regency Electric Company Orlando Office, Inc.
(a Florida corporation).............................................. 59-3074515
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Federal ID
Subsidiary Number
- --------------------------------------------------------------------- ----------
<S> <C>
Regency Electric Company Projects Group, Inc.
(a Florida corporation).............................................. 59-3372744
Regency Electric Company South Florida, Inc.
(a Florida corporation).............................................. 59-3534202
Regency Electric Company, Inc.
(a Florida corporation).............................................. 59-3534683
Riviera Electric Construction Co.
(a Colorado corporation)............................................. 84-1451102
Riviera Electric of California, Inc.
(a Colorado corporation)............................................. 93-1170983
Robinson Mechanical Company
(a Colorado corporation)............................................. 84-0758337
Sanders Bros., Inc.
(a South Carolina corporation)....................................... 57-0521391
SKC Electric, Inc.
(a Kansas corporation)............................................... 48-0925068
SKCE, Inc.
(a Kansas corporation)............................................... 48-1090186
Spann Building Maintenance Company
(a Missouri corporation)............................................. 43-0758063
Spann Management Group, Inc.
(a Missouri corporation)............................................. 43-1735563
Taylor Electric, Inc.
(a Utah corporation)................................................. 87-0619446
Tess Holdings, Inc.
(a Wisconsin corporation)............................................ 39-1739469
Testronics, Inc.
(a Texas corporation)................................................ 76-0066345
The Lewis Companies, Inc.
(an Oklahoma corporation)............................................ 73-1061382
Town & Country Electric, Inc.
(a Wisconsin corporation)............................................ 39-1923036
Tri-City Electrical Contractors, Inc.
(a Florida corporation).............................................. 59-0944060
Tri-M Holding Corp.
(a Pennsylvania corporation)......................................... 23-2973688
Tri-M Corporation
(a Pennsylvania corporation)......................................... 23-2706546
Tri-M Electrical Construction Corp.
(a Pennsylvania corporation)......................................... 23-1886824
Tri-M Building Automation Systems Corp.
(a Pennsylvania corporation)......................................... 23-2705680
Tri-M Information Systems Corp.
(a Pennsylvania corporation)......................................... 23-2705681
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Federal ID
Subsidiary Number
- --------------------------------------------------------------------- ----------
<S> <C>
Tri-M Integrated Systems Solutions Corp.
(a Pennsylvania corporation)......................................... 23-2829286
Walker Engineering, Inc.
(a Texas corporation)................................................ 75-2763689
Warren Electrical Construction Corp.
(a Maryland corporation)............................................. 23-2427069
Watson Electric Construction Co.
(a North Carolina corporation)....................................... 66-0734692
Wilson Electric Company, Inc.
(an Arizona corporation)............................................. 86-0906188
</TABLE>
<PAGE>
Prospectus
$200,000,000
(LOGO) BUILDING ONE APPEARS HERE
Offer to exchange all outstanding 10 1/2% Senior Subordinated Notes due 2009
that were
originally issued on April 30, 1999 for new identical 10 1/2% Senior
Subordinated Notes due 2009
---------------
Building One Services Corporation offers to exchange up to $200,000,000 of
its 10 1/2% Senior Subordinated Notes due 2009, the "original notes," for new
identical 10 1/2% Senior Subordinated Notes due 2009, the "exchange notes."
. The exchange notes will have the same terms as the original notes that
were issued in a private offering on April 30, 1999, except that the
exchange notes will be registered with the Securities and Exchange
Commission and, except as set forth below, you will be able to offer and
sell them freely to any potential buyer. This is beneficial to you
because the original notes were not registered and may not be offered or
sold unless they are registered or your offer or sale is exempt from
registration under the federal securities laws.
. The exchange notes mature on May 1, 2009. We will pay interest on the
exchange notes on May 1 and November 1 of each year, commencing on
November 1, 1999.
. The exchange notes will be unsecured and subordinated to all of our
existing and future senior debt. Our subsidiaries will guarantee the
exchange notes with unconditional guarantees that will be unsecured and
subordinated to their existing and future senior debt.
. The exchange offer expires at 5:00 p.m., New York City time, on August
19, 1999 and is subject to customary terms and conditions, as specified
in this prospectus and the accompanying letter of transmittal.
. You may withdraw your tender of notes at any time prior to August 19,
1999, the expiration date of this exchange offer. We will exchange all
original notes that are validly tendered and not withdrawn before this
exchange offer expires.
. Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must deliver a prospectus in connection
with any resale of the exchange 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 exchange notes received in exchange
for original notes acquired by the broker-dealer as a result of market-
making activities or other trading activities. See "Plan of
Distribution."
-------------------------------------------------------------------------
Please carefully consider the "Risk Factors" beginning on page 10 of this
prospectus.
-------------------------------------------------------------------------
Because we issued the original notes in a transaction that did not require
registration under the Securities Act of 1933, as amended, their transfer is
restricted. In connection with our issuance of the original notes, we entered
into a registration rights agreement to furnish holders of the original notes
with the right to exchange their notes for notes that are freely tradable. We
are making this exchange offer to satisfy your registration rights, as holders
of the original notes, requiring us to either provide you with exchange notes
or to register your original notes for resale. If we do not fulfill these
obligations, we must make certain penalty interest payments to you, described
under "Exchange Offer--Purpose and Effect of the Exchange Offer."
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. It is illegal for any person to tell
you otherwise.
The date of this prospectus is July 19, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Where You Can Find More Information........................................ 1
Prospectus Summary......................................................... 3
Use of Proceeds............................................................ 9
Ratio of Earnings to Fixed Charges......................................... 9
Risk Factors............................................................... 10
Exchange Offer............................................................. 18
Capitalization............................................................. 26
Introduction to Selected Financial Data.................................... 27
Description of the Exchange Notes.......................................... 30
Description of the Convertible Junior Subordinated Debentures.............. 64
United States Federal Tax Consequences..................................... 67
Plan of Distribution....................................................... 70
Legal Matters.............................................................. 70
Experts.................................................................... 70
</TABLE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
information with the SEC. You may read and, for a set fee, copy any of the
information we file at the following SEC public reference facilities:
. 450 Fifth Street, N.W.
Washington, DC 20549
. Seven World Trade Center
Suite 1300
New York, New York 10048
. Citicorp Center
Suite 1400
500 West Madison Avenue
Chicago, Illinois 60661
Please call the SEC at 800/SEC-0330 for further information on these public
reference facilities. Our SEC filings are also available to the public over
the Internet at the SEC's web site (http://www.sec.gov).
The SEC allows us to "incorporate by reference" the information in documents
that we file with them. This means that we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information in
documents that we file later with the SEC will automatically update and may
supersede this information.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the date the exchange
offer expires:
. Annual Report on Form 10-K for the year ended December 31, 1998 (file no.
000-23421);
. The financial statements of the following acquired businesses included in
the Prospectus Supplement dated May 17, 1999 to the Prospectus dated
March 16, 1999, filed pursuant to Rule 424(b)(3): Service Management USA,
Inc., Tri-City Electrical Contractors, Inc., Wilson Electric Company,
Inc., SKC Electric, Inc. and Affiliate, Riviera Electric Construction
Co., Town & Country Electric Inc., Garfield Electric Company, Indecon,
Inc. and Taylor Electric, Inc. (file no. 333-60053);
1
<PAGE>
. Our pro forma financial statements included in the Prospectus Supplement
dated May 17, 1999 to the Prospectus dated March 16, 1999, filed pursuant
to Rule 424(b)(3) (file no. 333-60053);
. Current Reports on Form 8-K dated February 10, 1999, February 18, 1999,
March 23, 1999, April 9, 1999, June 28, 1999 and July 15, 1999 (file no.
000-23421); and
. Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1999 (file no. 000-23421).
You may request a copy of these filings, at no charge, by writing or
telephoning us at the following address:
Building One Services Corporation
800 Connecticut Avenue, N.W., Suite 1111
Washington, DC 20006
202/261-6000
In making your investment decision, you should rely only on the information
provided in this prospectus or on any information incorporated by reference.
We have not authorized anyone else to provide you with different information.
In addition, you should not assume that the information in this prospectus or
any other document is accurate as of any date other than the date on the front
of those documents.
2
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information from this prospectus and may not
contain all of the information that is important to you. You are encouraged to
read the entire prospectus.
The Company
Building One Services Corporation is a leading provider of integrated
facilities services in the United States. We provide many of the services and
related products necessary for the routine maintenance and operation of
commercial and industrial buildings. Our Building One Mechanical and Electrical
Group provides mechanical and electrical systems installation and maintenance
services and our Building One Service Solutions Group provides janitorial and
maintenance management services. Based on pro forma revenues, we believe that
our company is the second largest provider of mechanical and electrical
contracting and maintenance services in the United States and the largest
provider of janitorial and maintenance management services to the retail
industry in the United States. On a pro forma basis for the year ended December
31, 1998, our revenues were $1,467.3 million.
Since our initial public offering in December 1997 and through June 25, 1999,
we have grown primarily through acquisitions, having acquired 38 businesses
that have average revenues of approximately $41 million and an average
operating history of 22 years. We currently have 128 locations that provide
facilities services to over 8,800 commercial, industrial and institutional
customers in 48 states. The presidents of our operating companies have an
average of over 25 years of experience in the facilities services industry. The
businesses that we have acquired have demonstrated strong internal growth.
Our goal is to become the preeminent single-source provider of facilities
services in the United States. To achieve this goal, we intend to capitalize on
favorable industry dynamics such as the trend by our customers to outsource
significant portions of facilities services requirements to third-party
providers and the trend of building managers to seek a single-source provider
of facilities services. In addition, we believe that the recent combination of
our mechanical and electrical groups further enhances our ability to offer
combined services to existing customers and to attract new clients seeking to
reduce the number of vendors with which they do business. We believe our highly
skilled workforce, rigorous hiring and training programs, breadth of service
offerings, geographic coverage and reputation provide us with a competitive
advantage in achieving our goal.
Recent Developments
Tender Offer. On May 11, 1999, we announced our purchase from stockholders of
24,618,856 shares of our common stock at a price of $22.50 per share for cash
and 881,144 shares of our common stock underlying options at a price in cash of
$22.50 per share less the exercise price per share of the options. We spent a
total of $560.1 million to pay for the shares using the net proceeds of $195.5
million from the sale in a private placement of the original notes that we are
offering to exchange for the exchange notes in this exchange offer and $100
million from the sale to Boss Investment LLC, an affiliate of Apollo
Management, L.P., of our 7 1/2% convertible junior subordinated debentures,
approximately $120 million of available cash and borrowings of $144.6 million
under a credit facility.
In connection with our sale of the convertible junior subordinated debentures
to Boss Investment, we increased the size of our board of directors to ten
persons and, effective April 30, 1999, appointed three designees of Boss
Investment, Andrew Africk, Michael Gross and Brooks Newmark, to the board.
Effective April 30, 1999, Thomas Heule and David Ledecky resigned from the
board. Effective June 30, 1999, W. Russell Ramsey resigned from the board.
3
<PAGE>
Exchange Offer
The following summary describes the terms of the exchange offer. For a more
detailed explanation of the exchange offer you should refer to the section in
this prospectus entitled "Exchange Offer."
The Exchange Offer.......... We are offering to exchange $200,000,000
principal amount of our 10 1/2% senior
subordinated notes due 2009, which are registered
under this registration statement, for
$200,000,000 principal amount of our 10 1/2%
senior subordinated notes due 2009 that were
issued on April 30, 1999 in a private offering.
You have the right to exchange your original
notes for exchange notes with substantially
identical terms.
In order for your original notes to be exchanged,
you must properly tender them prior to the
expiration date. All validly tendered original
notes will be exchanged. We will issue the
exchange notes promptly after the expiration of
the exchange offer.
Termination of Registration We sold the original notes to the initial
Rights..................... purchasers, BT Alex. Brown, Incorporated, Bear,
Stearns & Co. Inc., Goldman, Sachs & Co., Salomon
Smith Barney Inc., Friedman, Billings, Ramsey &
Co., Inc., Jefferies & Company, Inc. and Fleet
Securities, Inc. on April 30, 1999. At that time,
we signed a registration rights agreement with
these initial purchasers, which requires us to
conduct this exchange offer.
After the exchange offer is complete, you will no
longer be entitled to registration rights with
respect to any original notes that you are
entitled to exchange for exchange notes but
choose not to exchange.
Failure to Exchange
Outstanding Notes.......... If you do not exchange your original notes for
exchange notes in this exchange offer, you will
continue to be subject to the restrictions on
transfer that are contained in the terms of the
original notes and the indenture governing those
notes. In general, those restrictions prohibit
you from offering or selling your original notes
unless the original notes are:
. registered under the federal securities laws;
or
. sold in a transaction that is exempt from or
not subject to the registration requirements of
the federal securities laws and applicable
state securities laws.
Expiration of the Exchange
Offer...................... The exchange offer will expire at 5:00 p.m., New
York City time, on August 19, 1999, unless we
decide to extend the expiration date.
Tender of Original Notes.... If you wish to tender your original notes for
exchange, you must:
. complete and sign the enclosed letter of
transmittal by following the related
instructions; and
4
<PAGE>
. send the letter of transmittal, as directed in
the instructions, together with any other
required documents, to IBJ Whitehall Bank &
Trust Company, the exchange agent, either with
the original notes to be tendered or in
compliance with the procedures for guaranteed
delivery of the original notes.
Brokers, dealers, commercial banks, trust
companies and other nominees may also effect
tenders by book-entry transfer.
Please do not send your letter of transmittal or
the certificates representing your original notes
to Building One. Those documents should only be
sent to the exchange agent. Questions regarding
how to tender and requests for information should
be directed to IBJ Whitehall Bank & Trust
Company. See "Exchange Offer--Exchange Agent."
Special Procedures for
Beneficial Owners.......... If your original notes are registered in the name
of a broker, dealer, commercial bank, trust
company or other nominee, we urge you to contact
that person promptly if you wish to tender you
original notes in the exchange offer. See
"Exchange Offer--Procedures for Tendering."
Withdrawal Rights........... You may withdraw the tender of your original
notes at any time prior to the expiration of the
exchange offer by delivering a written notice of
withdrawal to the exchange agent. You must follow
the withdrawal procedures described under the
heading "Exchange Offer--Withdrawal of Tenders."
Resale of the Exchange We believe that you will be able to offer for
Notes...................... resale, resell or otherwise transfer the exchange
notes without compliance with the registration
and prospectus delivery provisions of the federal
securities laws, as long as:
. you will acquire the exchange notes in the
ordinary course of business;
. you have no arrangement or understanding with
any person to participate in the distribution
of the exchange notes in violation of the
Securities Act;
. you are not an affiliate of Building One
Services Corporation as defined in Rule 405
under the Securities Act or, if you are an
affiliate, you will comply with the applicable
registration and prospectus delivery
requirements of the Securities Act;
. if you are not a broker-dealer, you are not
engaged, and do not intend to engage in, the
distribution of the exchange notes; and
. if you are a broker-dealer who will receive the
exchange notes for your own account in exchange
for original notes that were acquired as a
result of market-making or other trading
activities, you will deliver a prospectus in
connection with any resale of the exchange
notes.
5
<PAGE>
Our belief that the exchange notes will be freely
tradable is based upon interpretations by the
staff of the Securities and Exchange Commission
set forth in a series of no-action letters issued
to third parties who are unrelated to Building
One. The SEC staff has not considered this
exchange offer in the context of a no-action
letter. We cannot assure you that the SEC staff
would make a similar determination with respect
to this exchange offer.
If our belief is not accurate and you transfer an
exchange note without delivering a prospectus
that meets the requirements of the federal
securities laws or without an exemption from
these laws, you may incur liability under the
federal securities laws. We do not and will not
assume or indemnify you against this liability.
Certain Federal Tax
Consequences............... With respect to the exchange of initial notes for
exchange notes:
. the exchange should not constitute a taxable
exchange for federal income tax purposes; and
. you should not recognize gain or loss upon
receipt of the exchange notes.
You must include interest on the exchange notes
in gross income to the same extent as the
original notes.
The Exchange Agent.......... The exchange agent for this exchange offer is IBJ
Whitehall Bank & Trust Company. You may contact
the exchange agent at 212/858-2103. See "Exchange
Offer--Exchange Agent."
6
<PAGE>
The Exchange Notes
The terms of the exchange notes and the original notes are identical in all
material respects, except that the transfer restrictions and registration
rights relating to the original notes do not apply to the exchange notes. The
summary below describes the principal terms of the exchange notes. Certain of
the terms and conditions described below are subject to important limitations
and exceptions. The section in this prospectus entitled "Description of the
Exchange Notes" contains a more detailed description of the terms and
conditions of the exchange notes.
Securities Offered.......... $200,000,000 aggregate principal amount of our 10
1/2% senior subordinated notes due 2009.
Maturity.................... May 1, 2009.
Interest Rate............... 10 1/2% per year (calculated using a 360-day
year).
Interest Payment Dates...... May 1 and November 1, beginning on November 1,
1999. Interest on the exchange note will accrue
from the last date on which interest was paid on
the original notes, or if no such interest has
been paid, from April 30, 1999.
Guarantees.................. The exchange notes will be unconditionally
guaranteed by our subsidiaries. If we create or
acquire a new domestic subsidiary, it will
guarantee the exchange notes unless we designate
the subsidiary as an "unrestricted subsidiary"
under the indenture or the subsidiary does not
have significant assets.
Ranking..................... The exchange notes will be our unsecured senior
subordinated obligations and will rank junior to
our existing and future senior debt. The
guarantees by our subsidiaries will be
subordinated to all of their existing and future
senior debt. Because the exchange notes are
subordinated, in the event of bankruptcy,
liquidation or dissolution, holders of the
exchange notes would not receive any payment
until holders of senior debt and senior debt of
the guarantors have been paid in full.
As of June 25, 1999, we had approximately $215.0
million of senior debt.
Optional Redemption......... We may redeem the exchange notes, in whole or in
part, at any time on or after May 1, 2004, at the
redemption prices listed in the "Description of
the Exchange Notes" section under the heading
"Redemption--Optional Redemption," plus accrued
interest.
Optional Redemption after
Equity Offerings........... At any time, which may be more than once, before
May 1, 2002, we may redeem up to 35% of the
outstanding exchange notes with money that we
raise in one or more equity offerings, as long
as:
. we pay 110.875% of the face amount of the
exchange notes, plus accrued interest;
7
<PAGE>
. we buy the exchange notes back within 90 days
of completing the equity offering; and
. at least 65% of the total principal amount of
the exchange notes remains outstanding after
the redemption.
Change of Control Offer.....
If a change of control in our company occurs, we
must give holders of the exchange notes the
opportunity to sell us their exchange notes at
101% of their face amount, plus accrued interest.
We might not be able to pay you the required
price for the exchange notes you present to us
upon a change in control because:
. we might not have enough funds at that time; or
. the terms of our senior debt might prevent us
from paying.
Certain Indenture
Provisions................. The indenture governing the exchange notes
contains covenants that, among other things,
limit our ability and the ability of our
restricted subsidiaries to:
. incur additional debt;
. pay dividends or distributions on capital stock
or repurchase capital stock;
. issue preferred stock of subsidiaries;
. make certain investments;
. create liens on our assets to secure debt;
. enter into transactions with affiliates;
. merge or consolidate with another company; and
. transfer or sell assets or enter into sale and
leaseback transactions.
These covenants are subject to important
exceptions and qualifications, which are
described in the section "Description of the
Exchange Notes" under the heading "Certain
Covenants" in this prospectus.
Use of Proceeds.............
We will not receive any proceeds from this
exchange offer.
We are a Delaware corporation. Our executive offices are located at 800
Connecticut Avenue, N.W., Suite 1111, Washington, DC 20006, and our telephone
number is 202/261-6000.
8
<PAGE>
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the exchange
notes. The proceeds from the issuance and sale of the original notes were,
along with proceeds from the sale of $100 million of convertible junior
subordinated debentures to Boss Investment LLC, an affiliate of Apollo
Management, L.P., and borrowings under a credit facility, used to fund a
portion of our recently completed issuer tender offer.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three months ended
Year ended December 31, March 31,
---------------------------------------------------- -------------------------
Pro Forma Pro Forma
1994 1995 1996 1997 1998 1998 1999 1999
---- ---- ---- ---- ---- --------- --------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
2.3x -- (1) 2.0x 5.8x 24.3x 2.5x 17.1x 2.2x
</TABLE>
- --------
. For purposes of computing the ratio of earnings to fixed charges: (1)
"earnings" consists of income from continuing operations before income
taxes and fixed charges; and (2) "fixed charges" consists of interest,
amortization of debt issuance costs, the commitment fee on the unused
portion of the credit facility and the estimated interest component of
rental expense.
(1) Earnings were inadequate to cover fixed charges for the year ended
December 31, 1995 by $195,000.
9
<PAGE>
RISK FACTORS
Before you tender your original notes in this exchange offer, you should
consider carefully the following risks and all of the information included in
this prospectus. Unless otherwise indicated, references to the "notes"
describe risks associated with both the original notes and the exchange notes.
This prospectus contains some forward-looking statements. Forward-looking
statements give our current expectations or forecasts of future events. You
can identify these statements by the fact that they do not relate strictly to
historical or current facts. They use words like "believe," "may," "will,"
"expect," "intend," "plan," "anticipate," "estimate" or "continue" and other
words and terms of similar meaning. In particular, these include statements
relating to future actions, our acquisition program, the integration of
acquired businesses, our growth in revenues and earnings, our achievement of
operating efficiencies, the trading of our stock and our plans with respect to
potential new products or services. From time to time, we also may provide
oral or written forward-looking statements in other materials.
Any or all of our forward-looking statements in this prospectus or in any
other public statements we make may turn out to be wrong. They can be affected
by inaccurate assumptions we might make or by known or unknown risks and
uncertainties. Many factors mentioned below will be important in determining
our future results. Consequently, no forward-looking statement can be
guaranteed. Actual results could differ significantly.
Risks Related to a Failure to Participate in the Exchange Offer
Any market for the original notes is likely to decline after the completion
of the exchange offer.
After original notes are tendered and accepted in the exchange offer, the
principal amount of original notes remaining after the completion of the
exchange offer will decrease. This decrease will reduce the liquidity of the
trading market for the original notes. We cannot assure you that any trading
market that has developed for the original notes will continue to exist after
the completion of the exchange offer. Please refer to the section entitled
"Exchange Offer--Consequences of Failure to Exchange."
If you do not exchange your original notes for exchange notes, you will
remain subject to transfer restrictions.
We have not registered the original notes under the federal securities laws.
Original notes that are not exchanged after the completion of this exchange
offer will remain subject to the transfer restrictions under applicable
securities laws. This means that you will not be able to transfer, sell or
trade your original notes except based upon an exemption from the registration
requirements of the federal securities laws. Please refer to the section
entitled "Exchange Offer--Consequences of a Failure to Exchange Original
Notes."
Risk Factors Related to Our Company
We have a high level of debt on our balance sheet as a result of the tender
offer.
We borrowed approximately $455.0 million and used cash in the amount of
$120.0 million to finance the tender offer and its related fees and expenses
to date. We have approximately $511.0 million of outstanding debt as of June
25, 1999. This debt level and our use of our cash have the following
consequences:
. a substantial portion of our cash flow will be used to pay interest
expense on our debt, which will reduce the funds that would otherwise be
available to us for our operations, capital expenditures and future
business opportunities and will require us to borrow under our new
revolving credit agreement which provides for borrowings of $225.0
million, of which approximately $142.5 million is available as of June
25, 1999;
. a substantial decrease in our net operating cash flows or an increase in
our expenses could make it difficult for us to meet our debt service
requirements and force us to modify our operations;
. we may have more debt than our competitors, which may place us at a
competitive disadvantage; and
10
<PAGE>
. our high level of debt may make us more vulnerable in a downturn in our
business or the economy in general.
We are subject to restrictive debt covenants that may limit our flexibility
in operating our business.
The credit facility and the indentures governing the notes and the
convertible junior subordinated debentures we issued to finance our tender
offer contain a number of significant covenants that impose restrictions on us
and our subsidiaries. These covenants include restrictions on:
. indebtedness;
. liens;
. voluntary prepayments of the notes and other indebtedness;
. amendments of organizational, corporate and other documents;
. mergers, acquisitions and dispositions of assets;
. sale-leaseback transactions, capital lease payments and maintenance of
material properties;
. dividends and other payments in respect of capital stock;
. advances, credit extensions, capital contributions, investments and
capital expenditures;
. transactions with affiliates and the formation of subsidiaries and joint
ventures;
. changes in business; and
. entry into a change of control without offering to redeem the notes.
In addition, we are required to comply with financial covenants with respect
to the amount of our debt as compared to our earnings before interest expense,
taxes, depreciation and amortization expense ("EBITDA") and the amount of our
EBITDA as compared to our interest expense. Our indebtedness under the credit
facility and the notes is guaranteed by each of our subsidiaries and our
indebtedness under the credit facility is secured by a first priority lien on
substantially all of our properties and assets and those of our subsidiaries,
now owned or acquired later. If we should be unable to borrow under our
revolving credit facility due to a default, we would be left without
sufficient liquidity.
Your right to receive payments on the notes is subordinated to our existing
indebtedness and possibly our future indebtedness.
The notes and the guarantees of our subsidiaries are unsecured and are
contractually subordinated to all of our existing and future senior
indebtedness and that of our guarantors, including all indebtedness under the
credit facility. Please refer to the section entitled "Description of the
Exchange Notes--Subordination."
The notes and the guarantees are effectively subordinated to all of our
existing and future secured indebtedness and that of our subsidiaries to the
extent of the value of the assets securing that indebtedness. Indebtedness
under the credit facility is secured by liens against substantially all of our
assets and those of our subsidiaries. In the event of our default on that
indebtedness or our bankruptcy, liquidation, dissolution, reorganization or
similar proceeding, our assets, and those of our subsidiaries, would be
available to satisfy our obligations on that secured debt before we can make
any payments on the notes. In addition, to the extent that those assets cannot
fully satisfy the secured indebtedness, the holders of that indebtedness would
have a claim for any shortfall that would rank, subject to any contractual
subordination, equally in right of payment (or effectively senior if the
indebtedness were issued by a subsidiary that is not a guarantor) with the
notes. Accordingly, there might only be a limited amount of assets available
to satisfy your claims as a holder of the notes upon an acceleration of the
majority of the notes.
After giving pro forma effect to the tender offer and its related fees and
expenses, we would have had approximately $134.9 million of secured
indebtedness outstanding as of March 31, 1999, excluding unused commitments of
approximately $220.0 million. Our assets and those of our subsidiaries may not
be sufficient to repay in full this indebtedness.
11
<PAGE>
Under specific circumstances, the notes and guarantees may be voided.
Federal and state statutes allow courts, under specific circumstances, to
void the notes and the guarantees and require noteholders to return payments
they receive under the terms of the notes.
Under federal bankruptcy law and comparable provisions of state fraudulent
transfer laws, the notes and the guarantees could be voided, or claims in
respect of the notes or the guarantees could be subordinated to all of our
other debts or those of our guarantors if, when the indebtedness evidenced by
the notes was incurred, we or such guarantor, among other things:
. received less than the reasonably equivalent value or fair consideration
for the incurrence of the indebtedness;
. were insolvent or rendered insolvent by reason of such incurrence;
. were engaged in a business or transaction for which our remaining assets
or those of our subsidiaries constituted unreasonably small capital; or
. intended to incur, or believed that we would incur, debts beyond our
ability to pay.
In addition, any payment we make, or any payment by one of our guarantors,
pursuant to the notes or the guarantee could be voided and required to be
returned to us or the guarantor or to a fund for the benefit of our creditors
or those of our guarantors.
The measures of insolvency for purposes of these fraudulent transfer laws
will vary depending upon the law applied in any proceeding to determine
whether a fraudulent transfer has occurred. Generally, however, we or a
guarantor would be considered insolvent if:
. the sum of our debts or those of the guarantors, including contingent
liabilities, is greater than the fair saleable value of all of our assets
or those of our guarantors;
. if the present fair saleable value of our assets or those of the
guarantors is less than the amount that would be required to pay our
probable liability on our existing debts or those of the guarantors,
including contingent liabilities, as they become absolute and mature; or
. we, or the guarantors, could not pay debts as they come due.
We may not have the ability to raise the funds necessary to finance any
change of control offer required by the indenture relating to the notes.
If certain change of control events occur, we are required by the indenture
relating to the notes to offer to repurchase all of the outstanding notes at
101% of their face value, plus any accrued interest. However, it is possible
that we will not have sufficient funds at the time of the change of control to
make the required repurchase of notes or that restrictions in the credit
facility will not allow the repurchases. In addition, certain important
corporate events, such as a leveraged recapitalization, that would increase
the level of our indebtedness would not constitute a "change of control" under
the indenture. Please refer to the section entitled "Description of the
Exchange Notes--Change of Control."
An active trading market for the exchange notes may not develop.
We do not intend to apply for listing of the exchange notes on any
securities exchange or for quotation through the National Association of
Securities Dealers Automated Quotation system. The initial purchasers have
informed us that they intend to make a market in the exchange notes. However,
the initial purchasers are not obligated to do so and may discontinue any such
market making at any time without notice.
The liquidity of any market for the exchange notes will depend upon various
factors, including:
. the number of holders of the notes;
. the interest of securities dealers in making a market for the notes;
12
<PAGE>
. the overall market for high-yield securities;
. our financial performance or prospects; and
. the prospects for companies in our industry generally.
Accordingly, we cannot assure you that a market or liquidity will develop
for the exchange notes.
Historically, the market for non-investment grade debt has been subject to
disruptions that have caused substantial volatility in the prices of
securities that are similar to the exchange notes. We cannot assure you that
any market for the exchange notes will not be subject to similar disruptions.
Any such disruptions may affect you as a holder of the exchange notes.
We are subject to restrictive debt covenants that may restrict our ability to
make acquisitions.
We have financed, and intend to continue to finance, most of our
acquisitions with a combination of cash and shares of our common stock. We
have approximately $142.5 million available under our revolving credit
facility to use for acquisitions and general corporate purposes, including
working capital requirements and contingent payments that are required by
certain acquisition agreements with respect to previously completed
acquisitions. As of June 25, 1999, we had paid approximately $23.5 million in
cash relating to those contingent payments. We expect that the remaining cash
portion of those contingent payments will be approximately $33.5 million in
1999.
The ability to borrow funds under the revolving credit facility is subject
to various conditions, such as continued compliance with the financial
covenants, maximum individual and total purchase price requirements for
acquisitions, adequate remaining availability under the facility and the
nature of the particular business to be acquired. The restrictive covenants
contained in the indentures relating to the notes and the convertible junior
subordinated debentures may also limit our ability to make future
acquisitions. Depending on the pace of our acquisitions, we may need
additional debt or equity financing in order to continue to acquire
businesses. That financing may not be available if and when additional cash is
needed or it may not be available on terms that we think are acceptable. If we
do not have sufficient cash to pay the cash consideration for acquisitions, or
cannot otherwise finance acquisitions, we will be unable meet our acquisition
objectives.
Boss Investment LLC, together with our management, could significantly
influence the election of directors and other matters that require the
approval of our stockholders.
As of June 30, 1999, our directors, executive officers and Boss Investment
owned beneficially approximately 27.4% of our outstanding shares of common
stock. In addition, many members of the senior management of our operating
companies own shares of our common stock.
The holders of the convertible junior subordinated debentures have the right
to vote together with the holders of our common stock on all of the matters
submitted to our stockholders for a vote. The holders of the convertible
junior subordinated debentures are entitled to cast the number of votes that
they would be entitled to cast if they converted the convertible junior
subordinated debentures into shares of our common stock. Based upon a
conversion price of $22.50 per share and assuming all of the interest on the
convertible junior subordinated debentures is paid in cash, Boss Investment
has the right to cast 4,444,444 votes, or votes equivalent to approximately
15.1% of the votes based upon our currently outstanding shares of common
stock. In addition, the holders of the convertible junior subordinated
debentures have the right to elect, as a class, three of our ten directors (or
if the board has more than ten directors, no less than 30% of the board).
Our directors, executive officers and Boss Investment, if acting together,
may be able to significantly influence the election of directors and other
matters requiring the approval of our stockholders. If we default on any of
our indebtedness or materially and intentionally breach our agreement with
Boss Investment, Boss Investment has the right, among other remedies available
to a holder of indebtedness, to elect a majority of our directors, subject to
our prior right to cure any default or breach.
13
<PAGE>
Risk Factors Relating to Our Company's Business
A downturn in commercial and industrial construction could hurt our business.
Approximately 57% of our pro forma revenues in 1998 and the revenues of the
businesses we acquired involved the installation of mechanical and electrical
systems in newly constructed commercial and industrial buildings. Our ability
to maintain or increase our revenues from new installation services depends on
the levels of new construction starts in the geographic areas where we
operate. Because the construction industry is cyclical, our revenues from year
to year may fluctuate.
The level of new construction starts is affected by local economic
conditions, changes in interest rates and other related factors. A downturn in
levels of new construction would have a material adverse effect on our
business.
Our mechanical and electrical installation services are subject to the
seasonal variations in operations and demands that affect the construction
business. Specifically, the demand for construction services may be lower
during the winter months as a result of inclement weather conditions.
Accordingly, our revenues and operating results may be lower in the first
quarter.
Adverse changes in economic conditions can adversely affect our business.
Our success will depend upon the economic conditions in the geographic areas
in which a substantial number of our operating companies are located. In
addition, our success will depend upon occupancy levels at office buildings
for which we do business. Higher vacancy rates could have a material adverse
effect on, among other sectors of the facilities services industry, janitorial
and maintenance management services.
Fixed price contracts with our customers could expose us to losses if our
estimates of project costs are too low.
A substantial portion of our mechanical and electrical installation
contracts are "fixed price" contracts. The terms of these contracts require us
to guarantee the price of the services we provide and assume the risk that our
costs to perform the services and provide the materials will be greater than
anticipated.
Our profitability in this market is therefore dependent on our ability to
accurately predict the costs associated with our services. These costs may be
affected by a variety of factors, some of which may be beyond our control. If
we are unable to accurately predict the costs of fixed price contracts,
certain projects could have lower margins than anticipated, which could have a
material adverse effect on our business.
Our short operating history may make it difficult to evaluate our future
prospects.
Since our initial public offering in December 1997 and through June 25,
1999, we have acquired 38 businesses. Therefore, our combined company has a
short history of generating revenues, which may make it difficult to evaluate
our future prospects.
Our ability to generate revenues and earnings in the future will be
dependent upon, among other factors:
. the operating results of the businesses we have acquired;
. the operating results of any future businesses we acquire; and
. the successful integration and consolidation of those businesses.
Boss Investment has certain rights over our operations.
Under our agreement with Boss Investment, we are precluded from entering
into various types of transactions or making certain changes in our capital
structure, board size or management without the consent of Boss Investment. In
addition, Boss Investment has the right to acquire 50% of the shares of our
common stock or convertible securities that we offer to sell in a private
placement. Finally, Boss Investment and any other holders of the convertible
junior subordinated debentures have certain rights to require us to register
the shares of common stock that they acquire upon conversion of the
convertible junior subordinated debentures for sale under the Securities Act
of 1933, as amended (the "Securities Act").
14
<PAGE>
Risks Factors Related to Our Acquisition Strategy
The integration of our acquired businesses may result in substantial costs,
delays or other problems.
We may not be able to successfully integrate our acquisitions without
substantial costs, delays or other problems. We will have to continue to
expend substantial managerial, operating, financial and other resources to
integrate our businesses. The costs of this integration could have an adverse
effect on short-term operating results.
The integration of newly-acquired businesses may also lead to diversion of
our management team away from other ongoing business concerns. In addition,
the rapid pace of our acquisitions of other businesses may adversely affect
our efforts to integrate acquisitions and manage those acquisitions
profitably. We may seek to recruit additional managers to supplement the
incumbent management of the acquired businesses, but we may not have the
ability to recruit additional candidates with the necessary skills.
Our growth strategy will be impacted by our ability to acquire additional
businesses.
Our business strategy depends, in part, upon our ability to compete in the
facilities services industry by expanding into new markets and our ability to
broaden the services we provide by identifying and acquiring other businesses.
We may not be able to identify, attract or acquire additional businesses. In
addition, certain acquisitions may require the approval of Boss Investment. We
may also be unable to make appropriate acquisitions because of competition for
the acquisition. In pursuing acquisitions, we compete against other facilities
services providers, some of which are larger than we are and have greater
financial and other resources than we have. We compete for potential
acquisitions based on a number of factors, including price, terms and
conditions, size and ability to offer cash, stock or other forms of
consideration. In addition, the negotiation of potential acquisitions may
require members of management to divert their time and resources away from our
operations.
Once we acquire a business, we are faced with certain additional risks,
including:
. the possibility that it will be difficult to integrate the operations
into our other operations;
. the possibility that we have acquired substantial undisclosed
liabilities;
. the risks of entering markets or offering services for which we have no
prior experience; and
. the potential loss of customers or employees as a result of changes in
management.
We may not be successful in overcoming these risks.
The consolidation of our industry may adversely affect our acquisition
program.
Many of our acquisitions are subject to the requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, which could adversely affect the
pace of our acquisitions in one or more sectors of the facilities services
industry. Under the Hart-Scott-Rodino Act, we may be required to divest a
portion of our then-existing operations or those of the acquired business,
which may render a given acquisition disadvantageous. In addition, if we
acquire businesses in regulated industries, we would be subject to regulatory
requirements. Those regulatory requirements could limit our flexibility in
growing and operating our businesses.
We believe that the facilities services industry will continue to undergo
considerable consolidation and changes during the next several years. This
consolidation could increase the competition we face to acquire facilities
services businesses and increase the prices we must pay for the businesses
that we acquire.
In response to this consolidation, we consider from time to time additional
strategies to enhance stockholder value. One such strategy that we pursued is
the tender offer. Other strategies include, among others, strategic alliances
and joint ventures, purchase, sale and merger transactions with other large
companies and other similar transactions. In considering any of these
strategies, we evaluate the consequences of the strategies, including,
15
<PAGE>
among other things, the potential for high levels of debt that would result
from such a transaction, the tax effects of the transaction and the accounting
consequences of the transaction. In addition, these strategies could have
various other significant consequences, including changes in management,
control or operational or acquisition strategies. In view of the completed
tender offer, we may determine not to pursue any of these strategies, but, if
any of these are pursued, they may not be completed successfully.
Risks from Competition
Our business is highly competitive, which could cause us to lower our prices,
resulting in reduced revenues and profit margins.
We face a competitive environment in the market for facilities services. We
compete against both large national and international organizations providing
a wide variety of facilities services to their customers and numerous smaller
companies providing a single service or fewer services in limited geographic
areas.
Other types of companies are also beginning to offer facilities services.
For example, property management companies and real estate investment trusts
(REITS) are beginning to offer facilities services for the properties that
they own or manage. Also, large heating, ventilation and air conditioning
manufacturers, such as Carrier Corporation and Honeywell, Inc., and some
public utilities, are active in certain sectors of the facilities services
industry.
Barriers to entry to the markets for certain facilities services, such as
janitorial services, are low, and we compete against numerous small service
providers, many of which may have more experience in and knowledge of the
local market for such services. These smaller service providers may also have
lower overhead cost structures and may be able to provide their services at
lower rates than we can.
In these same markets, we face large competitors that offer multiple
services and that are willing to accept lower profit margins in order to
capture market share. In addition, we face competition from both large and
small companies that offer only one of the services that we offer and may face
competition in the future from companies that enter the markets that we are
in.
In some geographic regions, we may not be eligible to compete for certain
contracts if our employees are not subject to collective bargaining
arrangements. As a result of this requirement, we may lose customers or have
difficulty acquiring new customers.
We may have trouble hiring the employees we need and our employment needs may
increase our costs.
Our ability to increase productivity and profitability will depend upon our
ability to recruit, train and retain large numbers of hourly wage and skilled
employees necessary to meet our service requirements. Competition for these
employees has led to increased wage levels and employee turnover. Inability to
recruit, train and retain these employees at competitive wage rates could
increase our operating costs.
In addition, many companies that require skilled employees, such as
mechanical and electrical installation and maintenance and heating,
ventilation and air conditioning companies, are currently experiencing
shortages of qualified employees. We may not be able to maintain an adequate
labor force necessary to efficiently operate our business. Also, our labor
expenses may increase as a result of a shortage in the supply of hourly wage
or skilled employees. As a result, we may have to curtail our planned growth
and margins may decline.
Although fewer than 10% of our employees are members of unions, many sectors
of the facilities services industry involve unionized employees. Union
activity at our companies may be disruptive to our business and may increase
our costs. To the extent any of our union contracts expire or we acquire
businesses that are unionized, we may be required to renegotiate union
contracts in an environment of increasing wage rates. We may not be able to
renegotiate union contracts on terms favorable to us or without experiencing a
work stoppage.
16
<PAGE>
Other Business Risks
We depend on subcontractors to perform a majority of our janitorial services,
which reduces our ability to directly control our workforce and the quality
of services that we provide.
We depend, in part, on subcontractors to provide janitorial services to our
customers. This reliance reduces our ability to directly control both our
workforce and the quality of services that we provide. We may not be able to
control our subcontractors and the quality of services they provide.
Many of our contracts may be terminated on short notice.
Many of our janitorial services contracts have termination clauses
permitting the customer to cancel the contract on 30 to 90 days' notice. While
we maintain long-standing relationships with many of our customers, we may not
be able to keep customers if they exercise their rights to terminate their
contracts prior to expiration.
We may have potential environmental liabilities.
The nature of the facilities services industry often involves the transport,
storage, use and disposal of cleaning solvents, lubricants, chemicals,
gasoline, refrigerants and other hazardous materials by employees. These
activities are subject to stringent and changing federal, state and local
regulation and present the potential for liability for the actions of our
employees in handling these materials. In addition, the exposure of any
employees to these materials may give rise to claims by employees against us.
Compliance with governmental regulations or liability related to hazardous
materials may have a material adverse effect on our business.
We are subject to government regulation.
Due to the nature of the facilities services industry, our operations are
subject to a variety of federal, state, county and municipal laws, regulations
and licensing requirements, including labor, employment, immigration, health
and safety, consumer protection and environmental regulations. If we fail to
comply with applicable regulations, we may be subject to substantial fines or
revocation of our licenses.
Changes in these laws, regulations and licensing requirements may constrain
our ability to provide services to customers or increase the costs of our
services. In addition, competitive pricing conditions in the industry may
constrain our ability to adjust our billing rates to reflect any such
increased costs.
The Year 2000 issue could disrupt our business and adversely affect our
financial condition.
The Year 2000 issue refers to a number of date-related problems that may
affect information technology and non-information technology systems,
including codes embedded in chips and other hardware devices. These problems
include systems that identify a year by two digits and not four so that a date
using "00" would be recognized as the year "1900" rather than "2000." This
could result in system failures, miscalculations or errors causing disruptions
of operations or other business problems, including, among others, a temporary
inability to process transactions, send invoices or engage in normal business
activities. The Year 2000 issue is a significant issue for most, if not all
companies, with far reaching implications, some of which cannot be anticipated
or predicted with any degree of certainty.
We expect to complete our evaluation of our potential Year 2000 exposure and
to complete the development of a plan to address Year 2000 issues during the
second quarter of 1999. If we are unable to address these issues, our business
may be negatively impacted.
If we were to lose key members of our management, our business would suffer.
Our success depends principally upon the efforts of our executive management
team, the presidents of our operating companies and certain other members of
the senior management of the businesses we have acquired or will acquire in
the future. The loss of a substantial portion of this management could have a
material adverse effect on the company.
17
<PAGE>
EXCHANGE OFFER
The summary below of certain provisions of the registration rights agreement
is subject to, and is qualified in its entirety by, all the provisions of the
registration rights agreement, a copy of which is filed as an exhibit to the
exchange offer registration statement, of which this prospectus is a part.
Purpose and Effect of the Exchange Offer
On April 30, 1999, we sold $200,000,000 in principal amount at maturity of
the original notes in a private placement through the initial purchasers, BT
Alex. Brown, Incorporated, Bear, Stearns & Co., Inc., Goldman, Sachs & Co.,
Salomon Smith Barney Inc., Friedman, Billings, Ramsey & Co., Inc., Jefferies &
Company, Inc. and Fleet Securities, Inc. The initial purchasers resold the
original notes to qualified institutional buyers in reliance on, and subject
to the restrictions imposed under, Rule 144A under the Securities Act.
In connection with the private offering of the original notes, we entered
into a registration rights agreement dated April 30, 1999 with the initial
purchasers, in which we agreed, among other things:
. to file a registration statement with the SEC on or before June 29, 1999
relating to an exchange offer for the original notes;
. to use our commercially reasonable best efforts to cause the registration
statement to become effective under the Securities Act on or before
September 27, 1999;
. to offer to each holder of original notes the opportunity to exchange
their notes for an equal principal amount of exchange notes upon the
effectiveness of the registration statement;
. to keep the exchange offer open for not less than 30 days, or longer if
required by applicable law, after the notice of the exchange offer is
mailed to holders of original notes; and
. to use our commercially reasonable best efforts to complete the exchange
offer on or before November 11, 1999.
Based on several no-action letters issued by the staff of the SEC to third
parties in unrelated transactions, we believe that you may offer for resale,
resell or otherwise transfer any exchange notes that we issue to you in the
exchange offer without registration of your exchange notes or the delivery of
a prospectus, if you can represent to us in the accompanying letter of
transmittal that:
. you will acquire the exchange notes in the ordinary course of business;
. you have no arrangement or understanding with any person to participate
in the distribution of the exchange notes in violation of the Securities
Act;
. you are not an affiliate of Building One Services Corporation as defined
in Rule 405 under the Securities Act or, if you are an affiliate, you
will comply with the applicable registration and prospectus delivery
requirements of the Securities Act;
. if you are not a broker-dealer, that you are not engaged, and do not
intend to engage in, the distribution of the exchange notes; and
. if you are a broker-dealer who will receive the exchange notes for you
own account in exchange for original notes that were acquired as a result
of market-making or other trading activities, that you will deliver a
prospectus in connection with any resale of the exchange notes.
In exchange for properly tendered original notes, we will issue the exchange
notes without a restrictive legend and a holder of those notes may resell the
exchange notes without the restrictions and limitations that are currently
imposed on the original notes by the Securities Act. If you do not tender your
original notes for exchange in this exchange offer they will remain
outstanding, however, you will not keep any of your rights under the
registration rights agreement, including your right to receive incremental
interest on the original notes in the event that we do not file a registration
statement or a registration statement does not become effective
18
<PAGE>
within specified time periods. In addition, if you do not tender your original
notes for exchange, they will remain subject to the transfer restrictions
imposed by the Securities Act. For more information, see "--Consequences of a
Failure to Exchange Original Notes."
If you are an affiliate of our company, one of the initial purchasers to
whom we sold the original notes, or if you cannot make the representations
required by the letters of transmittal:
. you will not be able to rely on the interpretations of the staff of the
SEC in connection with any offer for resale, resale or other transfer of
the exchange notes; and
. you must comply with the registration and prospectus delivery
requirements of the Securities Act, or have an exemption available to
you.
We are required to keep the registration statement effective and to amend and
supplement this prospectus in order to permit any required use of the
registration statement and prospectus for a period of time not to exceed 150
days. See "Plan of Distribution." In addition, if our conclusion regarding the
resale of the exchange notes is inaccurate and you transfer exchange notes in
violation of the prospectus delivery requirements of the Securities Act and do
not have an exemption from registration available to you, you may incur
liability. We will not assume, or indemnify you against, this liability.
Shelf Registration Statement
If:
. changes in the law or the applicable interpretations of the staff of the
SEC do not permit us to complete this exchange offer;
. this exchange offer is not completed on or before November 11, 1999;
. certain holders of exchange notes so request; or
. you do not receive exchange notes that you can resell by delivery of this
prospectus
we will file a shelf registration statement covering the resale of the notes.
We will use our commercially reasonable best efforts to keep the shelf
registration statement continuously effective for a period of at least two
years following April 30, 1999, the date on which the original notes were
issued, or a shorter period that will terminate when all notes covered by the
shelf registration statement have been sold under the shelf registration
statement or have ceased to be outstanding or subject to registration rights.
Registration Defaults; Additional Interest
If either the exchange offer registration statement or the shelf
registration statement is not timely filed or declared effective, or if the
exchange offer has not been completed on or prior to the 45th day following
the effective date of the registration statement, the interest rate on the
original notes will be increased by one-quarter of one percent per year for
the first 90-day period immediately following the default. The interest rate
will increase by an additional one-quarter of one percent per year at the
beginning of each subsequent 90-day period until all the defaults have been
cured. The total amount of required additional interest may not exceed 1.0%
per year. Following the cure of all such defaults, the accrual of additional
interest on the notes will cease. We will pay any additional interest in cash
on May 1 and November 1 of each year.
Special Rules for Broker-Dealers
Each broker-dealer that receives exchange notes for its own account in
exchange for original notes that it acquired as a result of market-making
activities or other trading activities must agree that it will deliver a
prospectus in connection with any resale of its exchange notes. This delivery
will not be an admission by the broker-dealer that it is an underwriter within
the meaning of the Securities Act. To facilitate the disposition of exchange
notes by broker-dealers participating in the exchange offer, we have agreed,
subject to specific
19
<PAGE>
conditions, to make this prospectus, as it may be amended or supplemented,
available for delivery by those broker-dealers to satisfy their prospectus
delivery obligations under the Securities Act.
Terms of the Exchange Offer
. If the terms and conditions described in this prospectus and in the
accompanying letter of transmittal are met, we will accept any and all
original notes that are validly tendered and not withdrawn prior to 5:00
p.m., New York City time, on the expiration date.
. This prospectus, together with the letter of transmittal, is being sent
to the registered holders of the original notes.
. We are not conditioning the exchange offer upon the tender of any minimum
amount of original notes.
Expiration Date; Extensions; Amendments
The exchange offer will expire at 5:00 p.m., New York City time, on August
19, 1999, unless we, in our sole discretion, extend it. We may extend the
exchange offer at any time and from time to time by giving oral or written
notice to the exchange agent and by timely public announcement. We may also
accept all properly tendered original notes as of the expiration date and
extend the expiration date with respect to the remaining original notes.
We may, in our sole discretion, but subject to the terms of the registration
rights agreement:
. amend the terms of the exchange offer;
. delay acceptance of, or refuse to accept, any original notes not
previously accepted;
. extend the exchange offer; or
. terminate the exchange offer.
We will give prompt notice of any amendment to the terms of the exchange
offer to the registered holders of the original notes. If we materially amend
the exchange offer, we will promptly disclose the amendment in a manner
reasonably calculated to inform you of the amendment and we will extend the
exchange offer to the extent required by law.
Procedures for Tendering
To tender original notes in this exchange offer, you must:
. complete, sign and date the letter of transmittal or a facsimile of it;
. have the signatures on the letter of transmittal guaranteed if required
by the letter of transmittal; and
. mail or otherwise deliver an original or facsimile of the letter of
transmittal and any other required documents to the exchange agent prior
to 5:00 p.m., New York City time, on the expiration date.
Prior to the expiration date, you must send to the exchange agent timely
confirmation of a book-entry transfer of tendered original notes into its
account at The Depository Trust Company, "DTC," as required by the procedures
for book-entry transfer as provided for in this prospectus and in the related
letter of transmittal or you must comply with the guaranteed delivery
procedures described below under "--Guaranteed Delivery Procedures."
Any financial institution that is a participant in DTC's system may make
book-entry delivery of the original notes by causing DTC to transfer the
original notes into the exchange agent's account in accordance with DTC's
procedures. Although book-entry transfer into the exchange agent's account at
DTC will effect delivery of the original notes, you must deliver an original
or a facsimile of the letter of transmittal, with any required signature
guarantees and any other required documents, to the exchange agent at its
address set forth under "--Exchange Agent" prior to 5:00 p.m., New York City
time, on the expiration date.
20
<PAGE>
Delivery of documents to DTC in accordance with DTC's procedures does NOT
constitute delivery to the exchange agent.
Your tender of original notes will constitute an agreement between you, our
company and the exchange agent that is in accordance with the terms and
subject to the conditions specified in this prospectus and in the letter of
transmittal. If you tender less than all of the original notes that you hold,
you should fill in the amount of original notes being tendered for exchange in
the appropriate box on the letter of transmittal. The exchange agent will deem
the entire amount of original notes delivered to it to have been tendered
unless you have indicated otherwise.
The method of delivery of the letter of transmittal and all other required
documents to the exchange agent is at your election and risk. Instead of
delivery by mail, we recommend that you use an overnight or hand delivery
service. In all cases, you should allow sufficient time to ensure delivery to
the exchange agent prior to the expiration date. Do not send your letter of
transmittal or other required documents to us.
Signature Requirements and Signature Guarantee
You must arrange for an "eligible institution" to guarantee the signatures
on a letter of transmittal or a notice of withdrawal. The following are
eligible institutions:
. a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.;
. a commercial bank or trust company having an office or correspondent in
the United States; or
. an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Exchange Act.
A signature guarantee is not required with respect to original notes that are
tendered for the account of an eligible institution.
If trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, sign or endorse any required documents, they should indicate the
capacity in which they are signing, and unless waived by us, submit evidence,
together with the letter of transmittal, that is satisfactory to us of their
authority to act as fiduciary or representative.
Conditions to the Exchange Offer
We will determine all questions as to the validity, form, eligibility,
including time of receipt, acceptance and withdrawal of the tendered original
notes in our sole discretion. Our determination will be final and binding. We
may reject any and all original notes that are not properly tendered or any
original notes of which our acceptance would, in the opinion of our counsel,
be unlawful. We also may waive any irregularities or conditions of tender as
to particular original notes. Our interpretation of the terms and conditions
of the exchange offer, including the instructions in the letter of
transmittal, will be final and binding on all parties. Unless waived, you must
cure any defects or irregularities in connection with tenders of original
notes within the time we determine.
Although we intend to notify tendering holders of defects or irregularities
with respect to tenders of the original notes, neither we nor anyone else has
any duty to notify these holders. Neither we nor anyone else will incur
liability for failure to give this notification. Your original notes will not
be deemed tendered until you have cured or we have waived any irregularities.
As soon as practicable following the expiration date, the exchange agent will
return any original notes that we reject due to improper tender or otherwise
unless we permit you to cure and you do cure all defects or irregularities or
we waive them.
We reserve the right in our sole discretion:
. to purchase or make offers for any original notes that remain outstanding
after the expiration date of the exchange offer;
21
<PAGE>
. to terminate the exchange offer, as set forth below; and
. to the extent permitted by applicable law, to purchase original notes in
the open market, in privately negotiated transactions, or otherwise.
The terms of purchases or offers by us may differ from the terms of the
exchange offer.
We will not be required to accept for exchange, or to issue exchange notes
for, any original notes and we may terminate or amend the exchange offer
before the acceptance of original notes if, in our judgment, any of the
following conditions has occurred or exists or has not been satisfied:
. the exchange offer, or your exchange of your original notes, violates the
applicable law or the applicable interpretations of the SEC staff;
. a person has initiated or threatened an action or proceeding in any court
or by or before any governmental agency or body that might materially
impair our ability to complete the exchange offer;
. all governmental approvals necessary for the completion of the exchange
offer have been obtained;
. there has not been a material change or development involving a
prospective material change in our business or financial affairs that can
reasonably be expected to materially impair our ability to complete the
exchange offer; or
. a legislative or regulatory body has adopted or enacted any law, statute,
rule or regulation that can reasonably be expected to materially impair
our ability to complete the exchange offer or have a material adverse
effect on us when the exchange offer is completed.
If we determine that we may terminate the exchange offer for any of these
reasons, we may:
. refuse to accept any original notes and return any original notes that
have been tendered to us;
. extend the exchange offer and retain all original notes tendered to us
prior to the expiration date of the exchange offer, subject to the
holders' withdrawal rights; or
. waive the termination event with respect to the exchange offer and accept
the properly tendered original notes that have not been withdrawn.
If we determine that this waiver constitutes a material change in the exchange
offer, we will promptly disclose the change in a manner reasonably calculated
to inform you of the change and we will extend the exchange offer to the
extent required by law.
We may assert or waive any of these conditions in our complete discretion.
Book-Entry Transfer
The exchange agent will make a request promptly after the date of this
prospectus to establish accounts with respect to the original notes at DTC.
Subject to the establishment of these accounts, any financial institution that
is a participant in DTC's system may make book-entry delivery of original
notes by causing DTC to transfer them into the exchange agent's account with
respect to the original notes. The institution must do this in accordance with
DTC's Automated Tender Offer Program procedures for book-entry transfer.
However, the exchange agent will only exchange the tendered original notes
after timely confirmation of their book-entry transfer into the exchange
agent's account, and timely receipt of an Agent's Message and any other
documents required by the letter of transmittal.
The term "Agent's Message" means a message transmitted by DTC and received
by the exchange agent and forming part of the confirmation of a book-entry
transfer, which states that:
. DTC has received an express acknowledgment from a participant tendering
original notes;
. the participant has received the letter of transmittal and agrees to be
bound by its terms; and
. we may enforce the agreement against the participant.
22
<PAGE>
Although you may effect delivery of the original notes through DTC into the
exchange agent's account at DTC, you must provide the exchange agent with a
completed and executed letter of transmittal with any required signature
guarantee and all other required documents prior to the expiration date. If
you comply with the guaranteed delivery procedures described below, you must
provide the letter of transmittal to the exchange agent within the time period
provided. Delivery of documents to DTC without confirmation or compliance does
not constitute delivery to the exchange agent.
Guaranteed Delivery Procedures
If you wish to tender your original notes, and cannot deliver the letter of
transmittal or any other required documents to the exchange agent before the
expiration date, or cannot complete the procedure for book-entry transfer on a
timely basis, you may instead effect a tender if:
. you make the tender through an eligible institution;
. prior to the expiration date, the exchange agent receives from the
eligible institution (1) an original or facsimile of the properly
competed and duly executed letter of transmittal and (2) notice of
guaranteed delivery by facsimile transmittal, mail or hand delivery
specifying the name and address of the holder and the principal amount of
the original notes tendered, stating that the tender is being made, and
guaranteeing that, within three Nasdaq Stock Market trading days after
the date of execution of the notice of guaranteed delivery, a
confirmation of book-entry transfer into the exchange agent's account at
DTC and any other documents required by the letter of transmittal, will
be deposited by the eligible institution with the exchange agent; and
. the exchange agent receives confirmation of a book-entry transfer into
its account at DTC and all other documents required by the letter of
transmittal within three Nasdaq Stock Market trading days after the date
of execution of the notice of guaranteed delivery.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw tendered
original notes at any time before 5:00 p.m., New York City time, on the
expiration date.
To do so, you must provide the exchange agent with a written or facsimile
transmission notice of withdrawal prior to 5:00 p.m., New York City time, on
the expiration date.
A notice of withdrawal must:
. identify the original notes to be withdrawn, including the principal
amount of those original notes, and the name and number of the account at
DTC to be credited; and
. be signed by you in the same manner as the original signature on your
letter of transmittal, including any required signature guarantee, or be
accompanied by documents of transfer sufficient to permit the registrar
to register the transfer of the withdrawn original notes into your name.
We will determine all questions as to the validity, form and eligibility,
including time of receipt, of withdrawal notices. Our determination will be
final and binding on all parties. We will not deem any properly withdrawn
original notes to be validly tendered for purposes of the exchange offer and
will not issue exchange notes with respect to them unless the holder of the
properly withdrawn original notes validly retenders them. You may retender
withdrawn original notes by following one of the procedures described above
under "--Procedures for Tendering" at any time before the expiration date.
Exchange Agent
We have appointed IBJ Whitehall Bank & Trust Company, which also acts as
trustee under the indenture, as exchange agent for the exchange offer. In this
capacity, the exchange agent has no fiduciary duties and will be
23
<PAGE>
acting solely on the basis of our directions. You should direct all
communications with the exchange agent, including requests for assistance or
for additional copies of this prospectus or of the letter of transmittal as
follows:
Facsimile Transmission By Hand/Overnight By Mail:
Number: Delivery:
IBJ Whitehall Bank &
(for eligible IBJ Whitehall Bank & Trust Company
institutions only) Trust Company P.O. Box 84
212/858-2611 One State Street Bowling Green Station
To confirm facsimile New York, NY 10004 New York, NY 10274-0084
transmissions call Attn.: Securities Attn.: Reorganization
212/858-2103 Processing Window, Operations
Subcellar One, (SC-1)
Delivery to an address or facsimile number other than those listed above and
will not constitute a valid delivery.
Fees and Expenses
We will bear all expenses of the exchange offer. We are making the principal
solicitation describing the exchange offer by mail. Our officers and regular
employees and our affiliates may also make solicitations in person, by
telegraph, telephone or facsimile transmission.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We will, however, pay the
exchange agent reasonable and customary fees for its services and will
reimburse its reasonable out-of-pocket costs and expenses and will indemnify
the exchange agent for all losses and claims incurred by it as a result of the
exchange offer. We may also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by
them in forwarding copies of this prospectus, letters of transmittal and
related documents to the beneficial owners of the original notes and in
handling or forwarding tenders for exchange.
Transfer Taxes
We will pay any transfer taxes applicable to the exchange of original notes
in response to the exchange offer. If, however, a transfer tax is imposed for
any reason other than the exchange of original notes in response to the
exchange offer, then the amount of these transfer taxes, whether imposed on
the registered holder of the original notes or any other person, will be
payable by the tendering holder. For example, the tendering holder will pay
transfer taxes, if:
. exchange notes for principal amounts not tendered, or accepted for
exchange are to be registered or issued in the name of any person other
than the registered holder of the original notes tendered; or
. tendered original notes are registered in the name of any person other
than the person signing the letter of transmittal.
If you do not submit satisfactory evidence of payment of taxes for which you
are liable or exemption from them with your letter of transmittal, we will
bill you for the amount of these transfer taxes directly.
Accounting Treatment
We will record the exchange notes at the same carrying value as the original
notes. Accordingly, we will not recognize any gain or loss for accounting
purposes. We will capitalize the expense of the exchange offer for accounting
purposes. We will classify these expenses as prepaid expenses and include them
in other assets on our balance sheet. We will amortize these expenses over the
period until 2009.
Consequences of a Failure to Exchange Original Notes
Any original notes tendered in the exchange offer will reduce the total
principal amount of original notes outstanding. Following the completion of
the exchange offer, holders who did not tender their original notes generally
will not have any further registration rights under the registration rights
agreement. Additionally, original notes that
24
<PAGE>
are not tendered in the exchange offer will continue to be subject to
restrictions on transfer under the federal securities laws. Accordingly, the
liquidity of the market for the original notes could be adversely affected.
The original notes are currently eligible for sale pursuant to Rule 144A
through the PORTAL market. We anticipate that most holders will elect to
exchange their original notes for exchange notes in the exchange offer because
of the absence of restrictions on the resale of exchange notes under the
federal securities laws (except for restrictions on a holder of exchange notes
who is our affiliate, an initial purchaser, and persons who cannot make the
representations required by the letter of transmittal). Therefore, we expect
that the liquidity of the market for any original notes remaining after the
completion of the exchange offer may be substantially limited.
As a result of our making this exchange offer, we will have fulfilled most
of our obligations under the registration rights agreement. If a holder of
original notes does not tender those original notes in the exchange offer
then, except for certain instances involving the initial purchasers and
certain other holders, that holder will not have:
. any further registration rights under the registration rights agreement;
or
. the right to receive any additional interest because of our failure to
file the required registration statement, have such registration
statement declared effective, or complete the exchange offer as required
by the registration rights agreement.
The original notes that are not exchanged for exchange notes in the exchange
offer will remain restricted securities within the meaning of the federal
securities laws. Accordingly, after the completion of the exchange offer, you
will only be able to offer for sale, sell or otherwise transfer untendered
original notes as follows:
. to us or any of our subsidiaries;
. in connection with a registration statement that has been declared
effective under the Securities Act;
. for so long as the original notes are eligible for resale under Rule 144A
of the Securities Act to a person who you reasonably believe is a
qualified institutional buyer within the meaning of Rule 144A that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the transfer is being
made in reliance on the exemption from the registration requirements of
the Securities Act provided by Rule 144A;
. in connection with offers and sales that occur outside the United States
to foreign persons in transactions complying with the provisions of
Regulation S under the Securities Act; or
. under any other available exemption from the registration requirements of
the Securities Act.
25
<PAGE>
CAPITALIZATION
The following table sets forth:
. our historical consolidated capitalization as of March 31, 1999; and
. our pro forma capitalization as of March 31, 1999, after giving effect to
the recently completed tender offer and the acquisition of the businesses
we acquired after March 31, 1999.
For a description of the pro forma adjustments, you should refer to the
unaudited pro forma financial statements and the related notes, incorporated
by reference from our prospectus supplement dated May 17, 1999 to the
prospectus dated March 16, 1999.
<TABLE>
<CAPTION>
As of March 31, 1999
------------------------
Actual Pro Forma
----------- ------------
(dollars in thousands)
<S> <C> <C>
Cash and cash equivalents.............................. $ 174,273 $ 9,638
=========== ===========
Total debt:
Credit facility (1).................................. $ -- $ 125,000
Other secured debt................................... 9,851 9,851
10 1/2% senior subordinated notes, net of discount... -- 195,492
----------- -----------
Subtotal........................................... 9,851 330,343
7 1/2% convertible junior subordinated debentures.... -- 100,000
----------- -----------
Total debt......................................... 9,851 430,343
----------- -----------
Stockholders' equity................................... 894,338 333,692
----------- -----------
Total capitalization................................. $ 904,189 $ 764,035
=========== ===========
</TABLE>
26
<PAGE>
INTRODUCTION TO
SELECTED FINANCIAL DATA
The statement of operations data for the years ended December 31, 1996, 1997
and 1998 and the balance sheet data at December 31, 1997 and 1998 (except pro
forma combined amounts) have been derived from our audited financial
statements, which are incorporated by reference into this prospectus from our
annual report on Form 10-K for the fiscal year ended December 31, 1998. The
statement of operations data for the years ended December 31, 1994 and 1995
and the balance sheet data at December 31, 1994, 1995 and 1996 have been
derived from our unaudited financial statements, which have not been included
in or incorporated by reference into this prospectus. Our consolidated
financial statements give retroactive effect to the three business
combinations accounted for under the pooling-of-interests method during the
year ended December 31, 1998 and include the results of the businesses
acquired in business combinations accounted for under the purchase method from
their respective acquisition dates. The financial statements for periods prior
to the fiscal year ended December 31, 1998 reflect only the operating results
of the three business combinations accounted for under the pooling-of-
interests method of accounting.
The statement of operations data for the three months ended March 31, 1999
and 1998 have been derived from our unaudited interim consolidated financial
statements, which are incorporated by reference into this prospectus from our
quarterly report on Form 10-Q for the quarter ended March 31, 1999. The
unaudited interim consolidated financial statements have been prepared on the
same basis as the audited financial statements and, in the opinion of
management, contain all adjustments, consisting only of normal adjustments,
necessary for a fair presentation of our financial position and results of
operations for the periods presented.
The unaudited pro forma combined financial data give effect to:
. our purchase in the tender offer of 25.5 million shares of common stock,
consisting of 24,618,856 shares at a price of $22.50 per share and
881,144 shares underlying stock options at a price of $22.50 per share
less the exercise price for the purchase of employee stock options for a
total purchase price of $560.1 million;
. the financing of the tender offer from the proceeds of the sale of the
original notes and the convertible junior subordinated debentures,
borrowings under a new credit facility and our available cash; and
. the 26 acquisitions completed during the year ended December 31, 1998
which were accounted for under the purchase method of accounting (the
"1998 Acquisitions") and six acquisitions completed after December 31,
1998 (the "1999 Acquisitions"), in each case as if they had been acquired
on January 1, 1998.
The selected unaudited pro forma combined financial data are not necessarily
indicative of operating results or financial position that would have been
achieved had the events described above been completed and should not be
construed as representative of future operating results or financial position.
The selected financial data should be read in conjunction with the unaudited
pro forma combined financial statements and our consolidated financial
statements, which are incorporated by reference into this prospectus.
We have incorporated by reference into this prospectus financial statements
for those guarantors that have been part of our company for less than nine
months and whose book value, par value or purchase price equals or exceeds 20%
of the principal amount of the securities. We have not included or
incorporated by reference into this prospectus separate financial statements
for the other guarantors because each of the guarantors is wholly owned by our
company and has fully and unconditionally guaranteed our obligations regarding
the notes. Furthermore, the guarantors' total net assets, earnings and equity
and those of our company on a consolidated basis are substantially equivalent.
27
<PAGE>
SELECTED FINANCIAL DATA
(Dollars in thousands, except share and per share data)
<TABLE>
<CAPTION>
For the Year Ended December 31,
-----------------------------------------------------------------
1998
1994 1995 1996 1997 1998 Pro Forma
--------- --------- --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Statement of
Operations Data:
Revenues.......... $ 45,106 $ 57,287 $ 63,202 $ 70,101 $ 809,601 $1,467,336
Cost of revenues.. 37,634 48,783 53,664 58,857 636,225 1,174,347
--------- --------- --------- --------- ---------- ----------
Gross profit...... 7,472 8,504 9,538 11,244 173,376 292,989
Selling, general
and
administrative... 6,635 8,468 8,803 11,776 100,539 168,865
Goodwill
amortization..... -- -- -- -- 7,653 13,425
--------- --------- --------- --------- ---------- ----------
Operating income
(loss)........... 837 36 735 (532) 65,184 110,699
Other (income)
expense
Interest
income......... (41) -- -- (2,056) (19,373) --
Interest
expense........ 329 239 224 208 1,054 43,892
Other income,
net (1)........ (43) (8) 83 (221) (80) (3,635)
--------- --------- --------- --------- ---------- ----------
Income (loss)
before income
taxes............ 592 (195) 428 1,537 83,583 70,442
Provision
(benefit) for
income taxes..... (5) 13 94 36,120 33,157
--------- --------- --------- --------- ---------- ----------
Net income
(loss)........... $ 592 $ (190) $ 415 $ 1,443 $ 47,463 $ 37,285
========= ========= ========= ========= ========== ==========
Net income (loss)
per share--
Basic............ $ 0.48 $ (0.15) $ 0.32 $ 0.25 $ 1.19 $ 1.73
========= ========= ========= ========= ========== ==========
Net income (loss)
per share--
Diluted.......... $ 0.44 $ (0.15) $ 0.30 $ 0.25 $ 1.16 $ 1.58
========= ========= ========= ========= ========== ==========
Weighted average
shares
outstanding--
Basic............ 1,238,444 1,238,444 1,290,724 5,683,464 39,908,364 21,578,216
========= ========= ========= ========= ========== ==========
Weighted average
shares
Outstanding--
Diluted.......... 1,353,560 1,238,444 1,405,840 5,865,550 40,928,452 26,604,814
========= ========= ========= ========= ========== ==========
<CAPTION>
For the Three Months Ended March 31,
-----------------------------------------------
Pro Forma Pro Forma
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Statement of
Operations Data:
Revenues.......... $ 54,610 $ 350,842 $ 336,111 $ 373,258
Cost of revenues.. 44,233 280,692 275,515 298,940
----------- ----------- ----------- -----------
Gross profit...... 10,377 70,150 60,596 74,318
Selling, general
and
administrative... 7,918 42,714 39,397 45,702
Goodwill
amortization..... 324 3,469 3,308 3,654
----------- ----------- ----------- -----------
Operating income
(loss)........... 2,135 23,967 17,891 24,962
Other (income)
expense
Interest
income......... (6,656) (2,508) -- (17)
Interest
expense........ 99 96 10,973 10,829
Other income,
net (1)........ (111) (281) (2,326) (497)
----------- ----------- ----------- -----------
Income (loss)
before income
taxes............ 8,803 26,660 9,244 14,647
Provision
(benefit) for
income taxes..... 3,722 11,927 4,872 7,196
----------- ----------- ----------- -----------
Net income
(loss)........... $ 5,081 $ 14,733 $ 4,372 $ 7,451
=========== =========== =========== ===========
Net income (loss)
per share--
Basic............ $ 0.15 $ 0.32 $ 0.20 $ 0.34
=========== =========== =========== ===========
Net income (loss)
per share--
Diluted.......... $ 0.15 $ 0.31 $ 0.20 $ 0.31
=========== =========== =========== ===========
Weighted average
shares
outstanding--
Basic............ 32,987,273 45,973,455 21,578,216 21,910,397
=========== =========== =========== ===========
Weighted average
shares
Outstanding--
Diluted.......... 34,075,876 47,740,958 21,578,216 27,997,422
=========== =========== =========== ===========
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
As of December 31, March 31,
------------------------------------- -------------------
1999 Pro
1994 1995 1996 1997 1998 1999 Forma(2)
----- ----- ----- -------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Working capital....... $ 300 $ (30) $ 67 $528,235 $ 307,390 $ 251,969 $ 89,815
Total assets.......... 8,063 8,132 9,629 539,159 1,043,922 1,162,120 1,019,485
Long term debt, net of
current maturities.... 1,734 1,589 1,890 1,679 3,287 4,783 425,275
Stockholders'
equity................ 1,496 1,299 1,578 529,480 837,537 894,338 333,692
</TABLE>
- ----
(1) Other income, net consists primarily of realized gains on the sale of
marketable securities, dividend income on certain investments and gains on
the sale of equipment.
(2) Does not give effect to an estimated $57 million of contingent cash earn-
out payments expected to be made in 1999 in connection with previously
consummated acquisitions.
29
<PAGE>
DESCRIPTION OF THE EXCHANGE NOTES
We are offering, in exchange for the original notes, a total of $200 million
total principal amount of exchange notes. The original notes were issued under
a document called the "indenture." The indenture is a contract between us, the
guarantors and IBJ Whitehall Bank & Trust Company, as trustee. The exchange
notes will be governed by the same indenture that governs the original notes.
The following is a summary of the material provisions of the indenture. The
indenture and its associated documents contain the full legal text of the
matters described in this section. We urge you to read the indenture because
it defines your rights. The terms of the exchange notes include those stated
in the indenture as well as those made part of the indenture by reference to
the Trust Indenture Act of 1939, as amended. You may obtain a copy of the
indenture from us. You can find definitions of certain capitalized terms used
in this description under "--Certain Definitions." For purposes of this
section, references to "we" and "us" include only Building One Services
Corporation and not its subsidiaries.
The indenture and the exchange notes are governed by New York law. The
exchange notes will be our unsecured obligations, ranking subordinate in right
of payment to all of our Senior Debt.
We will issue the exchange notes in fully registered form in denominations
of $1,000 and integral multiples thereof. The trustee will initially act as
paying agent and registrar for the exchange notes. The exchange notes may be
presented for registration or transfer and exchanged at the offices of the
paying agent. We may replace the paying agent and registrar without notice to
the holders of the exchange notes. We will pay principal and any premium on
the exchange notes at the trustee's corporate office in New York, New York. At
our option, interest may be paid at the trustee's corporate trust office or by
check mailed to the registered address of holders. Any original notes that
remain outstanding after the completion of the exchange offer, together with
the exchange notes issued in connection with the exchange offer, will be
treated as a single class of securities under the indenture. Unless otherwise
specified, the following summary describes both the original notes issued on
April 30, 1999 and the notes that will be issued in accordance with this
exchange offer.
Principal, Maturity and Interest
The notes are limited in total principal amount to $400 million, of which
$200 million was issued in a private offering on April 30, 1999. The notes
will mature on May 1, 2009. Additional notes may be issued from time to time,
subject to the limitations set forth under "--Certain Covenants--Limitation on
Incurrence of Additional Indebtedness." Interest on the notes will accrue at
the rate of 10 1/2% per year. Interest is payable semiannually in cash on each
May 1 and November 1, commencing on November 1, 1999, to the registered
holders of the notes at the close of business on the April 15 and October 15
immediately preceding the applicable interest payment date. Interest on the
notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from and including the date of issuance.
The notes are not entitled to the benefit of any mandatory sinking fund.
The initial offering price of the notes was 97.746%. If a bankruptcy case is
commenced by or against us under applicable bankruptcy law, the claim of a
holder of the notes with respect to the principal amount thereof may be
limited to an amount equal to the sum of:
. the initial offering price; and
. the portion of the original issue discount that had been amortized as of
any such bankruptcy filing.
Redemption
Optional Redemption. Except as described below, the notes are not redeemable
before May 1, 2004. Thereafter, we may redeem the notes at our option, in
whole or in part. We must give at least 30 days, but not more than 60 days,
notice of redemption. We may redeem the notes at the following redemption
prices
30
<PAGE>
(expressed as percentages of the principal amount) if we redeem the notes
during the twelve-month period commencing on May 1 of the years set forth
below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2004.............................. 105.438%
2005.............................. 104.350%
2006.............................. 103.263%
2007.............................. 102.175%
2008.............................. 101.088%
2009.............................. 100.000%
</TABLE>
In addition, we must pay accrued and unpaid interest on the notes we redeem.
Optional Redemption upon Equity Offerings. At any time on or prior to May 1,
2002, we may, at our option, use the net cash proceeds of one or more "equity
offerings" to redeem up to 35% of the total principal amount of the notes
issued under the indenture at a redemption price of 110.875% of the principal
amount, plus any accrued and unpaid interest to the date of redemption.
However:
. at least 65% of the total principal amount of notes issued under the
indenture must remain outstanding immediately after the redemption; and
. we must redeem the notes within 90 days of the completion of the equity
offering.
An "equity offering" is a public or private offering of our Qualified
Capital Stock (other than public offerings with respect to our common stock on
Form S-8) in which we receive total net cash proceeds of at least $20 million.
Selection and Notice of Redemption
If we choose to redeem less than all of the notes, the trustee will select
the notes for redemption either:
. in compliance with the requirements of any principal national securities
exchange on which the notes are listed; or
. on a pro rata basis, by lot or by a method that the trustee deems fair
and appropriate.
If we partially redeem the notes, we will not redeem any notes with a
principal amount of $1,000 or less. If we make a partial redemption with the
net cash proceeds of an equity offering, as discussed above, the trustee will
select the notes only on a pro rata basis or on as nearly a pro rata basis as
is practicable. The trustee's selection is subject to the procedures of The
Depository Trust Company, "DTC". We will mail any notice of redemption by
first-class mail at least 30 days, but not more than 60 days, before the
redemption date to each holder of notes to be redeemed at its registered
address. On and after the redemption date, interest will cease to accrue on
the notes (or portions thereof) called for redemption if we have deposited
sufficient funds with the paying agent.
Subordination
Our payment of our obligations relating to the notes, which include payment
of principal, any premium, interest or any other liabilities under the
indenture, is subordinated in right of payment to the prior payment in full in
cash or Cash Equivalents of all obligations relating to our Senior Debt,
including the obligations with respect to the credit facility. However, any
payments and distributions made relating to the notes under the terms of the
trust described under "--Legal Defeasance and Covenant Defeasance" will not be
subordinated in right of payment.
The holders of Senior Debt are entitled to receive payment in full in cash
or Cash Equivalents of all obligations relating to our Senior Debt, including
specified post-bankruptcy interest whether or not an allowed
31
<PAGE>
claim, before the holders of notes receive any payment or distribution for any
obligations relating to the notes if we make a distribution to our creditors:
. in a liquidation or dissolution of our company;
. in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to us or our property;
. in an assignment for the benefit of creditors; or
. in any marshalling of our assets and liabilities.
We may not make any payment or distribution to satisfy any obligations
relating to the notes or acquire any notes for cash or property or otherwise
if:
. a payment default on any Senior Debt occurs and is continuing; or
. any other default occurs and is continuing on Designated Senior Debt that
permits holders of the Designated Senior Debt to accelerate its maturity
and the trustee receives a notice of such default, a "payment blockage
notice," from the Representative of any Designated Senior Debt.
Payments on and distributions with respect to any obligations relating to
the notes will be resumed:
. in the case of a payment default, upon the date on which the default is
cured or waived; and
. in case of a nonpayment default, upon the earliest of (1) the date on
which all nonpayment defaults are cured or waived if no other event of
default exists; (2) 180 days after the date on which the applicable
payment blockage notice is received; or (3) the date on which the trustee
receives notice from the Representative for the Designated Senior Debt
rescinding the payment blockage notice, unless the maturity of any
Designated Senior Debt has been accelerated.
No new payment blockage notice may be delivered within 360 days of the
effectiveness of the immediately prior payment blockage notice.
A nonpayment default that existed or was continuing on the date of delivery
of a payment blockage notice to the trustee may not be the basis for a
subsequent payment blockage notice unless that default has been cured or
waived for a period of at least 90 consecutive days. Any subsequent action, or
any breach of any financial covenants for a period commencing after the date
of delivery of the initial payment blockage notice that would give rise to a
default under any provisions under which a default previously existed or was
continuing will constitute a new default for this purpose.
We must promptly notify holders of Senior Debt if payment of the notes is
accelerated because of an Event of Default. Refer to the section below
entitled "--Events of Default."
As a result of the subordination provisions described above, in the event of
a bankruptcy, liquidation or reorganization of our company, holders of the
notes may recover less ratably than our creditors who are holders of Senior
Debt.
Guarantees
The guarantors, which include all of our current subsidiaries and will
include all future Restricted Subsidiaries, jointly and severally guarantee
our obligations under the indenture and the notes on a senior subordinated
basis. Each guarantee is subordinated in right of payment to the prior payment
in full in cash or Cash Equivalents of Guarantor Senior Debt on the same basis
as the notes are subordinated to Senior Debt. The obligations of each
guarantor under its guarantee is limited as necessary to prevent the guarantee
from constituting a fraudulent conveyance or fraudulent transfer under
applicable law.
Each guarantor may consolidate with, merge into, or sell its assets to us,
another guarantor that is our Wholly Owned Restricted Subsidiary, or other
Persons as set forth in the indenture. See "--Certain Covenants--
32
<PAGE>
Merger, Consolidation and Sale of Assets." If we sell all of the Capital Stock
of a guarantor and the sale complies with the provisions set forth in "--
Certain Covenants--Limitation on Asset Sales," the guarantor's guarantee will
be released.
Change of Control
If a Change of Control occurs, each holder of the notes has the right to
require that we purchase all or a portion of their notes in a "change of
control offer," at a purchase price equal to 101% of the principal amount of
the notes plus accrued interest to the date of purchase.
Within 30 days following the date upon which the Change of Control occurred,
we must send, by first-class mail, notice to each holder, with a copy to the
trustee. The notice will govern the terms of the change of control offer and
must state, among other things, the purchase date, or "change of control
payment date." The change of control payment date must be at least 30 days,
but no more than 60 days, from the date the notice is mailed, unless otherwise
required by law. If you are a holder who elects to have your note purchased in
a change of control offer, you will be required to surrender the note to the
paying agent at the address specified in the notice before the close of
business on the third business day prior to the change of control payment
date. You must remember to complete the form entitled "Option of Holder to
Elect Purchase" on the reverse of the note.
Before we mail the notice of change of control, and in any event within 30
days following any Change of Control, we have agreed to:
. repay in full and terminate all commitments under Indebtedness under the
Credit Agreement and all other Senior Debt, the terms of which require
repayment upon a Change of Control or offer to repay in full and
terminate all commitments under all Indebtedness under the Credit
Agreement and all other such Senior Debt and to repay the Indebtedness
owed to each lender which has accepted such offer; or
. obtain the required consents under the Credit Agreement and all other
Senior Debt to permit the repurchase of the notes as provided below.
We must first comply with the covenant in the immediately preceding sentence
before we would be required to repurchase notes. Otherwise, with notice and
lapse of time, our failure to do so constitutes an Event of Default described
in clause (3) of the section below entitled "--Events of Default." However,
that failure would not be an Event of Default as described in clause (2) of
that section.
If we make a change of control offer, we cannot assure you that we will have
available funds sufficient to pay the Change of Control purchase price for all
the notes that might be delivered by holders seeking to accept that offer. If
we are required to purchase outstanding notes in a change of control offer, we
expect that we would seek third-party financing to the extent we do not have
available funds to meet our purchase obligations. However, we cannot assure
you that we would be able to obtain that financing.
Neither the board of directors nor the trustee may waive the covenant
relating to a holder's right to redemption upon a Change of Control.
Restrictions in the indenture on our ability and the ability of our Restricted
Subsidiaries to incur additional Indebtedness, to grant liens on property, to
make Restricted Payments and to make Asset Sales may also make more difficult
or discourage a takeover of our company, whether favored or opposed by our
management. In certain circumstances, the completion of a transaction may
require our redemption or repurchase of the notes. We cannot assure you that
we or the acquiring party will have sufficient financial resources to complete
that redemption or repurchase. These restrictions, together with the
restrictions on transactions with Affiliates, may make more difficult or
discourage any leveraged buyout of our company or any of our Subsidiaries by
our management. While these restrictions cover a wide variety of arrangements
that have traditionally been used in highly leveraged transactions, the
indenture may not, in every circumstance, provide protection to the holders
from the adverse aspects of a highly leveraged transaction, reorganization,
restructuring, merger or similar transaction.
33
<PAGE>
We will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations that apply in connection with
the repurchase of notes in a change of control offer. If the provisions of any
securities laws or regulations conflict with the Change of Control provisions
in the indenture, we will comply with the applicable securities laws and
regulations and will not be deemed to have breached our obligations under the
"Change of Control" provisions of the indenture.
Certain Covenants
The indenture contains, among others, the following covenants:
Limitation on Additional Indebtedness. Generally, we will not, and will not
permit any of our Restricted Subsidiaries to incur any Indebtedness other than
Permitted Indebtedness. However, in certain circumstances, we may acquire
Indebtedness. If no Event of Default has occurred and is continuing at the
time of or as a consequence of the incurrence of the Indebtedness:
. we or any of our Restricted Subsidiaries that are or, upon such
incurrence, become guarantors may incur Indebtedness, including Acquired
Indebtedness; and
. our Restricted Subsidiaries that are not and will not become guarantors
as a result of the incurrence, may incur Acquired Indebtedness.
In each case, however, as of the date on which we incurred the Indebtedness
and after giving effect to that incurrence, our Consolidated Fixed Charge
Coverage Ratio must be greater than 2.25 to 1.0 if the Indebtedness was
acquired on or prior to November 1, 2000 and 2.5 to 1.0 if acquired
thereafter.
Limitation on Restricted Payments. We will not, and will not permit our
Restricted Subsidiaries to make a restricted payment that is:
. the declaration or payment of any dividend or any distribution, other
than dividends or distributions payable in our Qualified Capital Stock,
relating to shares of our Capital Stock to holders of that Capital Stock;
. the purchase, redemption or other acquisition or retirement for value any
of our Capital Stock or any warrants, rights or options to purchase or
acquire shares of any class of our Capital Stock;
. a principal payment on, or the purchase, defeasance, redemption,
prepayment, decrease or other acquisition or retirement for value, prior
to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, of any of our Indebtedness that is subordinate or junior in
right of payment to the notes, including our convertible junior
subordinated debentures (except a conversion of the debentures into
Qualified Capital Stock);
. a cash interest payment on the convertible junior subordinated
debentures; or
. an Investment, other than Permitted Investments;
if, immediately after giving effect to that restricted payment:
. a default or an Event of Default occurs and is continuing;
. we are not able to incur at least $1.00 of additional Indebtedness, other
than Permitted Indebtedness, in compliance with the "Limitation on
Incurrence of Additional Indebtedness" covenant; or
. the total amount of restricted payments, including any proposed
restricted payments, made after the Issue Date exceeds the sum of:
. 50% of our cumulative Consolidated Net Income, or if cumulative
Consolidated Net Income is a loss, less 100% of that loss, that is
earned after the Issue Date but before the date on which the
restricted payment is made, the "reference date" (treating such
period as a single accounting period); plus
. 100% of (1) the total net cash proceeds we received from any Person
(other than one of our Subsidiaries) from the issuance and sale of
our Qualified Capital Stock after the Issue Date but on
34
<PAGE>
or prior to the reference date and (2) the fair market value (as
determined in good faith by senior management or, in the case of a fair
market value in excess of $5 million, by the board of directors) of
shares of our Qualified Capital Stock issued after the Issue Date but
on or prior to the reference date in connection with Asset Acquisitions
and other acquisitions of property after the Issue Date; plus
. without duplication of any amounts included in the immediately
preceding clause, 100% of the total net cash proceeds and the fair
market value of property other than cash (as determined in good faith
by senior management or, in the case of a fair market value in excess
of $5 million, by the board of directors) of any equity contribution
we receive from a holder of our Capital Stock after the Issue Date but
on or prior to the reference date; plus
. without duplication of any of the above three clauses, the sum of:
(1) the total amount returned in cash on or with respect to
Investments, other than Permitted Investments, made after the Issue
Date, whether through interest payments, principal payments,
dividends or other distributions or payments;
(2) the net cash proceeds we or any of our Restricted Subsidiaries
receive from the disposition of all or any portion of such
Investments, other than to one of our Subsidiaries; and
(3) upon the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of that Subsidiary.
However, the sum of clauses (1), (2) and (3) above must not exceed
the total amount of all the Investments made after the Issue Date.
To calculate the total amount of restricted payments made after the Issue
Date, the amounts expended under clauses (1), (2)(ii), (4) and (5) of the
paragraph below should be included. Any payment made, if other than in cash,
would be valued at the fair market value of the property as determined
reasonably and in good faith by senior management or, in the case of any
property in excess of $5 million, by the board of directors.
The provisions set forth above do not prohibit:
(1) our payment of any dividend within 60 days after the date of
declaration of that dividend if the dividend would have been permitted on
the date of declaration;
(2) if no Event of Default has occurred and is continuing, our
acquisition of any shares of our Capital Stock, either (i) solely in
exchange for shares of our Qualified Capital Stock or (ii) through the
application of the net proceeds of a substantially concurrent sale for cash
(other than to one of our Subsidiaries) of shares of our Qualified Capital
Stock;
(3) if no Event of Default has occurred and is continuing, our
acquisition of any Indebtedness that is subordinate or junior in right of
payment to the notes either solely in exchange for shares of our Qualified
Capital Stock, or through the application of the net proceeds of a
substantially concurrent sale for cash (other than one of our Subsidiaries)
of (i) shares of our Qualified Capital Stock or (ii) Refinancing
Indebtedness;
(4) so long as no Event of Default has occurred and is continuing, our
repurchase of our common stock from our employees or any of our
Subsidiaries or their authorized representatives upon the death, disability
or termination of employment of those employees, in a total amount that
does not exceed $5 million in any calendar year;
(5) so long as no Event of Default has occurred or is continuing, our
declaration and payment of dividends to holders of any class or series of
our preferred stock, other than Disqualified Capital Stock, issued after
the Issue Date, provided that after giving effect to that issuance on a pro
forma basis, we would be permitted to incur at least $1.00 of additional
Indebtedness, other than Permitted Indebtedness, according to the
"Limitation on Incurrence of Additional Indebtedness" covenant;
35
<PAGE>
(6) cash payments in lieu of our payment of fractional convertible junior
subordinated debentures made in lieu of cash interest on those debentures
or fractional shares of our common stock upon conversion of the convertible
junior subordinated notes; and
(7) other restricted payments that do not exceed a total of $2 million.
Before we make any restricted payment we will deliver an officers'
certificate to the trustee stating that the restricted payment complies with
the indenture and setting forth, in reasonable detail, the basis upon which
the required calculations were computed. Those calculations may be based upon
our latest available internal quarterly financial statements.
Limitation on Asset Sales. We will not, and will not permit any of our
Restricted Subsidiaries to, complete an Asset Sale unless:
(1) we or the applicable Restricted Subsidiary receive consideration at
the time of that Asset Sale that is at least equal to the fair market value
of the assets disposed of (as determined in good faith by senior management
or, in the case of an Asset Sale in excess of $5 million, by the board of
directors);
(2) at least 75% of the consideration from that Asset Sale is in the form
of cash or Cash Equivalents and is received at the time of disposition. The
following amounts will be deemed to be cash for purposes of this provision:
. liabilities as shown on our balance sheet and the balance sheets of
our Restricted Subsidiaries that are assumed by the transferee of any
such assets, other than liabilities that are subordinated to the
notes; and
. the amount of any notes or other obligations we or the Restricted
Subsidiary receive from the transferee that is converted into cash
within 180 days after the Asset Sale; and
(3) after the completion of an Asset Sale, we apply (or cause our
Restricted Subsidiary to apply), within 360 days of receipt, the Net Cash
Proceeds relating to that Asset Sale either:
. to prepay any Senior Debt or Guarantor Senior Debt and, in the case
of any Senior Debt or Guarantor Senior Debt under any revolving
credit facility, effect a permanent reduction in the availability
under such revolving credit facility;
. to make an Investment in "replacement assets," which are properties
and assets that replace the subject of the Asset Sale or properties
and assets that will be used in our business and the business of our
Restricted Subsidiaries or in businesses reasonably related thereto;
and/or
. a combination of prepayment and investment permitted by the above two
clauses.
We (or our Restricted Subsidiary) must offer to purchase from all of the
holders of notes, on a pro rata basis, a specified amount of the notes if we
have not applied the Net Cash Proceeds as required by clause (3) above by the
"net proceeds offer trigger date," which is the earlier of:
. the 361st day after an Asset Sale; or
. the date, if any, on which our senior management or our board of
directors (or the board of the Restricted Subsidiary) determines not to
apply the Net Cash Proceeds relating to the Asset Sale as set forth in
clause (3) of the preceding paragraph.
We (or our Restricted Subsidiary) must offer to purchase an amount of notes
that is equal to the total Net Cash Proceeds that have not been applied as
required by clause (3) on or before the net proceeds offer trigger date, the
"net proceeds offer amount." We must make the net proceeds offer at least 30
but not more than 60 days after the net proceeds offer trigger date. We will
purchase those notes at a price equal to 100% of their principal amount, plus
any accrued and unpaid interest to the date of purchase. If at any time we (or
any Restricted Subsidiary) convert, sell or otherwise dispose of for cash, any
non-cash consideration that we or any Restricted Subsidiary receive in
connection with any Asset Sale (other than interest received with respect to
that non-cash consideration), then the conversion or disposition will
constitute an Asset Sale and the Net Cash Proceeds will be applied in
accordance with this covenant.
36
<PAGE>
We may defer the net proceeds offer until there is a total unutilized net
proceeds offer amount equal to or in excess of $10 million resulting from one
or more Asset Sales. In that case, the entire unutilized net proceeds offer
amount, and not just the amount in excess of $10 million, must be applied as
required pursuant to this covenant.
If we transfer substantially all of our property and assets and those of our
Restricted Subsidiaries as an entirety to a Person in a transaction permitted
under "--Merger, Consolidation and Sale of Assets," and the transfer is not a
Change of Control, the successor corporation will be deemed to have sold our
properties and assets and those of our Restricted Subsidiaries that were not
so transferred for purposes of this covenant. The successor corporation must
comply with the provisions of this covenant with respect to such deemed sale
as if it were an Asset Sale. In addition, the fair market value of the
properties and assets deemed to be sold will be deemed to be Net Cash Proceeds
for purposes of this covenant.
Notwithstanding clauses (1) and (2) above, we and our Restricted
Subsidiaries will be permitted to complete an Asset Sale without complying
with those clauses to the extent that:
. at least 75% of the consideration for the Asset Sale constitutes
Replacement Assets; and
. the Asset Sale is for fair market value. However, any consideration that
does not constitute Replacement Assets that we or any of our Restricted
Subsidiaries receive in connection with any Asset Sale that is permitted
to be completed under this paragraph will be Net Cash Proceeds and will
be subject to the provisions of clauses (1) and (2).
We will mail each net proceeds offer to record holders within 30 days
following the net proceeds offer trigger date, with a copy to the trustee.
Each net proceeds offer must comply with the procedures set forth in the
indenture. Upon receiving notice of the net proceeds offer, you, as a holder
of a note, may elect to tender your notes in whole or in part in integral
multiples of $1,000 in exchange for cash. If you properly tender your notes in
an amount that exceeds the net proceeds offer amount, your notes will be
purchased on a pro rata basis (based on the total amount tendered). A net
proceeds offer will remain open for a period of 20 business days or a longer
period if required by law.
We will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder if those laws and
regulations apply in connection with the repurchase of notes in a net proceeds
offer. If the provisions of any securities laws or regulations conflict with
the Asset Sale provisions of the indenture, we will comply with the applicable
securities laws and regulations and will not be deemed to have breached our
obligations under the "Asset Sale" provisions of the indenture.
Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries. We will not, and will not cause or permit any of our Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit
to exist or become effective any encumbrance or restriction on the ability of
any of our Restricted Subsidiaries to:
. pay dividends or make any other distributions regarding its Capital
Stock;
. make loans or advances or pay any Indebtedness or other obligation it
owes us or any other of our Restricted Subsidiaries; or
. transfer any of its property or assets to us or any other of our
Restricted Subsidiaries.
However, we will permit an encumbrance or restriction on the ability of any
of our Restricted Subsidiaries that exists under or by reason of:
(a) applicable law;
(b) the indenture;
(c) customary non-assignment provisions of any contract of, any lease
governing a leasehold interest of, or any license held by, any of our
Restricted Subsidiaries;
37
<PAGE>
(d) any instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person or the properties or assets of the Person
so acquired;
(e) the Credit Agreement;
(f) agreements existing on the Issue Date to the extent and in the manner
those agreements are in effect on that date;
(g) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred under an agreement referred to in
clauses (b), (d), (e) and (f) above and (h) and (j) below. However, the
provisions relating to the encumbrance or restriction contained in any such
Indebtedness must be no less favorable to us in any material respect (as
determined by the board of directors or senior management in its reasonable
and good faith judgment) than the provisions relating to the encumbrance or
restriction contained in agreements referred to in clauses (b), (d), (e),
(f), (h) and (j);
(h) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on transfer of the property
acquired;
(i) contracts for the sale of assets, including customary restrictions
with respect to a Restricted Subsidiary under an agreement that has been
entered into for the sale or disposition of the Capital Stock or assets of
that Restricted Subsidiary;
(j) secured Indebtedness that we may incur in compliance with the
"Limitation on Incurrence of Additional Indebtedness" covenant and the
"Limitation on Liens" covenant and that limits the right of the debtor to
dispose of the assets securing such Indebtedness;
(k) customary provisions in joint venture agreements, licenses and leases
and other similar agreements entered into in the ordinary course of
business;
(l) net worth provisions in leases and other agreements; and
(m) an agreement governing Indebtedness (including any Credit Facilities)
that we may incur in compliance with the "Limitation on Incurrence of
Additional Indebtedness" covenant. However, the provisions relating to the
encumbrance or restriction contained in that Indebtedness must be no less
favorable to us in any material respect (as determined by our senior
management in its reasonable and good faith judgment) than the provisions
contained in the Credit Agreement as in effect on the Issue Date.
Limitation on Liens. We will not, and will not cause or allow any of our
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Liens of any kind on any of our property or assets or
those of our Restricted Subsidiaries, whether owned on the Issue Date or
thereafter acquired, or on any proceeds from those properties or assets, or
assign or otherwise convey any right to receive income or profits from those
properties or assets unless:
. in the case where Liens secure Indebtedness that is expressly subordinate
or junior in right of payment to the notes, the notes are secured by a
Lien on the property, assets or proceeds that are senior in priority to
the Liens; and
. in all other cases, the notes are equally and ratably secured, except
for:
. Liens existing on the Issue Date, to the extent and in the manner
those Liens are in effect on that date;
. Liens securing Senior Debt and Liens securing Guarantor Senior Debt;
. Liens securing the notes and the Guarantees;
. our Liens or the Liens of one of our Wholly Owned Restricted
Subsidiaries on assets of any of our Restricted Subsidiaries;
. Liens securing Refinancing Indebtedness that is incurred to Refinance
any Indebtedness which has been secured by a Lien permitted under the
indenture and which has been incurred in accordance with the
provisions of the indenture. These Liens must:
38
<PAGE>
(i) be no less favorable to the holders and no more favorable to
the lienholders with respect to such Liens than the Liens in respect
of the Indebtedness being Refinanced; and
(ii) not extend to or cover any of our property or assets or those
of our Restricted Subsidiaries not securing the Indebtedness so
Refinanced; and
. Permitted Liens.
Prohibition on Incurrence of Senior Subordinated Debt. We will not, and will
not permit any Restricted Subsidiary that is a Guarantor to, incur
Indebtedness that is:
. senior in right of payment to the notes or that Guarantor's guarantee;
and
. subordinate in right of payment to any other of our Indebtedness or the
Indebtedness of that Guarantor.
Merger, Consolidation and Sale of Assets. We will not, in a single
transaction or series of related transactions, consolidate or merge with or
into any Person, or sell, assign, transfer, lease, convey or otherwise dispose
of (or cause or permit any of our Restricted Subsidiaries to sell, assign,
transfer, lease, convey or otherwise dispose of) all or substantially all of
our assets (determined on a consolidated basis for us and our Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(1) either:
(a) we will be the surviving or continuing corporation; or
(b) the Person (if other than our company) formed by the
consolidation or into which we are merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition
our properties and assets and those of our Restricted Subsidiaries
substantially as an entirety, the "surviving entity:"
(x) will be a corporation, partnership, trust or a limited
liability company that is organized and validly existing under the
laws of the United States or any State thereof or the District of
Columbia; and
(y) will expressly assume, by supplemental indenture (in form and
substance satisfactory to the trustee), executed and delivered to
the trustee, the due and punctual payment of the principal of, any
premium, and interest on all of the notes and the performance of
every covenant of the notes, the indenture and the registration
rights agreement on the part of the company to be performed or
observed. If, at any time, we or the surviving entity is a limited
liability company, partnership or trust, there must be a co-issuer
of the notes that is our Restricted Subsidiary and that is a
corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia;
(2) immediately after giving effect to the transaction and the assumption
contemplated by clause (1)(b)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred in connection with that transaction), we or the surviving entity
will be able to incur at least $1.00 of additional Indebtedness, other than
Permitted Indebtedness, under the "Limitation on Incurrence of Additional
Indebtedness" covenant;
(3) immediately before and immediately after giving effect to the
transaction and the assumption contemplated by clause (1)(b)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection
with the transaction), no Event of Default has occurred or is continuing;
and
(4) we or the surviving entity have delivered to the trustee an officers'
certificate and an opinion of counsel. These documents must state that the
consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition and, if required, supplemental indenture comply with the
provisions of the indenture and that all of the conditions precedent in the
indenture relating to the transaction have been satisfied.
39
<PAGE>
Notwithstanding the foregoing, we may merge with an Affiliate that is
incorporated solely for the purpose of our reincorporation in another
jurisdiction.
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 of our Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all
of our properties and assets, will be a transfer of all or substantially all
of our properties and assets.
The indenture provides that any consolidation, combination or merger or any
transfer of all or substantially all of our assets in accordance with the
foregoing in which we are not the continuing corporation, the successor Person
formed by that consolidation or into which we are merged or to which the
conveyance, lease or transfer is made may exercise every right and power of
our company under the indenture and the notes.
Each Guarantor, other than any Guarantor whose guarantee is to be released
in accordance with the terms of the guarantee and the indenture in connection
with any transaction complying with the provisions of "--Limitation on Asset
Sales," will not, and we will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than our company or
any other Guarantor unless:
. the entity formed by or surviving the consolidation or merger, if other
than the Guarantor, is a corporation, partnership, trust or limited
liability company organized and existing under the laws of the United
States or any State thereof or the District of Columbia;
. that entity assumes all of the obligations of the Guarantor on the
guarantee by supplemental indenture;
. immediately after giving effect to the transaction, no Event of Default
would occur and be continuing; and
. immediately after giving effect to the transaction and the use of any net
proceeds from the transaction on a pro forma basis, we could satisfy the
provisions of clause (2) above.
If a Guarantor merges or consolidates with or into us, where we are the
surviving entity, or another Guarantor that is our Wholly Owned Restricted
Subsidiary, that Guarantor need only comply with clause (4) above.
Limitations on Transactions with Affiliates. We will not, and will not
permit any of our Restricted Subsidiaries to, directly or indirectly, enter
into or permit to exist any transaction or series of related transactions
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of our Affiliates,
each an "affiliate transaction," other than:
. certain permitted affiliate transactions described below; and
. affiliate transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at
that time on an arm's-length basis from a Person that is not our
Affiliate or such Restricted Subsidiary.
All affiliate transactions, including each series of related affiliate
transactions which are similar or part of a common plan, that involve total
payments or other property with a fair market value in excess of $3.0 million
must be approved by our board of directors or the board of the Restricted
Subsidiary. This approval must be evidenced by a Board Resolution stating that
the relevant board of directors has determined that the transaction complies
with the foregoing provisions. If we or any of our Restricted Subsidiaries
enter into an affiliate transaction, or a series of related affiliate
transactions related to a common plan, that involves a total fair market value
of more than $10.0 million, we or the Restricted Subsidiary will, prior to the
completion of the transaction, obtain a favorable opinion as to the fairness
of the transaction or series of related transactions to us or the relevant
Restricted Subsidiary from a financial point of view, from an Independent
Financial Advisor and file that opinion with the trustee.
40
<PAGE>
The following affiliate transactions are permitted without regard to the
approval procedures described above:
. reasonable fees and compensation paid to and indemnity provided on behalf
of our officers, directors, employees, consultants or investment bankers
or those of our Restricted Subsidiaries as determined in good faith by
our board of directors or senior management;
. transactions exclusively between or among us and any of our Wholly Owned
Restricted Subsidiaries or exclusively between or among our Wholly Owned
Restricted Subsidiaries, if those transactions are not otherwise
prohibited by the indenture;
. any agreement as in effect as of the Issue Date, any amendment to that
agreement, any transaction contemplated by that agreement (including
under any amendment to the agreement) or any replacement agreement, if
that amendment or replacement agreement is not more disadvantageous to
the holders in any material respect than the original agreement as in
effect on the date of issuance;
. Restricted Payments permitted by the indenture;
. transactions in which we or any of our Restricted Subsidiaries deliver a
fairness opinion to the trustee from an Independent Financial Advisor
that states that the transaction is fair to us or the Restricted
Subsidiary from a financial point of view or meets the requirements of
the first sentence in this section;
. the existence of, or our performance or that of our Restricted
Subsidiaries of the obligations under the terms of, the Investors' Rights
Agreement, the Securities Purchase Agreement, any stockholders' agreement
to which it is a party as of the Issue Date, including any related
registration rights agreement or purchase agreement, and any similar
agreements which it may enter into thereafter. The existence of, or the
performance by us or any of our Restricted Subsidiaries of obligations
under, any future amendment to any of these existing agreement or under
any similar agreement entered into after the Issue Date will only be
permitted by this clause to the extent that the terms of the amendment or
new agreement are not otherwise disadvantageous to the holders of the
notes in any material respect;
. the issuance of securities or other payments, awards or grants, in cash,
securities or otherwise, pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the
board of directors in good faith and loans to our employees and those of
our Subsidiaries which are approved by our senior management in good
faith;
. transactions with customers, clients, suppliers, purchasers or sellers of
goods or services in the ordinary course of business and otherwise in
compliance with the terms of the indenture, which are fair to us or our
Restricted Subsidiaries, in the reasonable determination of our senior
management, or are on terms at least as favorable as might reasonably
have been obtained at the time of the transaction from an unaffiliated
party; and
. transactions reasonably related to the exercise of rights and remedies
with respect to the convertible junior subordinated notes or the
conversion or exchange of the convertible junior subordinated notes, each
to the extent not otherwise prohibited by the indenture.
Additional Subsidiary Guarantees. If we or any of our Restricted
Subsidiaries transfer, in one transaction or a series of related transactions,
any property to any Domestic Restricted Subsidiary that is not a Guarantor, or
if we or any of our Restricted Subsidiaries organize, acquire or otherwise
invest in another Domestic Restricted Subsidiary that has total assets with a
book value in excess of $1 million, then the transferee or acquired or other
Restricted Subsidiary must:
. execute and deliver to the trustee a supplemental indenture in a form
that is reasonably satisfactory to the trustee under which the Restricted
Subsidiary unconditionally guarantees all of our obligations under the
notes and the indenture on the terms set forth in the indenture; and
. deliver to the trustee an opinion of counsel that such supplemental
indenture has been duly authorized, executed and delivered by the
Restricted Subsidiary and constitutes its legal, valid, binding and
enforceable obligation. Thereafter, the Restricted Subsidiary will be a
Guarantor for all purposes of the indenture.
41
<PAGE>
Conduct of Business. Neither we nor our Restricted Subsidiaries will engage
in any businesses which are not substantially related, ancillary or
complementary to the businesses in which we and our Restricted Subsidiaries
were engaged in on the Issue Date.
Reports to Holders. The indenture provides that, whether or not required by
the rules and regulations of the SEC, so long as any notes are outstanding, we
will furnish to the holders of notes:
. all quarterly and annual financial information that would be required to
be contained in a filing with the SEC on Forms 10-Q and 10-K if we were
required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" that describes
our financial condition and results of operations and those of our
consolidated Subsidiaries (showing in reasonable detail, either on the
face of the financial statements or in the footnotes thereto, our
financial condition and results of operations and those of our Restricted
Subsidiaries separately from any of our Unrestricted Subsidiaries'
financial condition and results of operations) and, with respect to the
annual information only, a report thereon by our certified independent
accountants; and
. all current reports that would be required to be filed with the SEC on
Form 8-K if we were required to file such reports, in each case within
two days after the time periods specified in the SEC's rules and
regulations.
In addition, after we complete this exchange offer, we will file a copy of
all of such information and reports with the SEC for public availability
within the time periods specified in the SEC's rules and regulations (unless
the SEC will not accept such a filing) and make that information available to
securities analysts and prospective investors upon request. In addition, we
have agreed that, for so long as any notes remain outstanding and are
"restricted securities" within the meaning of Rule 144, we will furnish to the
holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Events of Default
The following events are defined in the indenture as "Events of Default:"
(1) the failure to pay interest on any notes when it becomes due and
payable, whether or not that payment is prohibited by the subordination
provisions of the indenture, and the continuation of that failure for a
period of 30 days;
(2) the failure to pay the principal on any notes when it becomes due and
payable, at maturity, upon redemption or otherwise, including the failure
to make a payment to purchase notes tendered pursuant to a change of
control offer or a net proceeds offer on the date specified for such
payment in the applicable offer to purchase, whether or not that payment is
prohibited by the subordination provisions of the indenture;
(3) a default in the observance or performance of any other covenant or
agreement contained in the indenture that continues for a period of 30 days
after we receive written notice specifying the default and demanding that
we remedy the default from the trustee or the holders of at least 25% of
the outstanding principal amount of the notes;
(4) the failure to pay at final maturity (giving effect to any applicable
grace periods and any extensions of those grace periods) the principal
amount of any of our Indebtedness or the Indebtedness of any of our
Significant Subsidiaries that continues for at least 20 days, or the
acceleration of the final stated maturity of any of our Indebtedness or the
Indebtedness of any of our Significant Subsidiaries that is not rescinded,
annulled or otherwise cured within 20 days of receipt of notice if the
total principal amount of that Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated (in each case
with respect to which the 20-day period described above has passed), totals
$10 million or more at any time;
42
<PAGE>
(5) the rendering of one or more judgments against us or one of our
Significant Subsidiaries that total more than $10 million (exclusive of
amounts covered by insurance) and remain undischarged, unpaid or unstayed
for a period of 60 days after becoming final and non-appealable;
(6) certain events of bankruptcy that affect us or any of our Significant
Subsidiaries; or
(7) any of the following events:
. the guarantee of a Significant Subsidiary ceases to be in full
force and effect, is declared null and void and unenforceable or
is found to be invalid; or
. any Guarantor of a Significant Subsidiary denies its liability
under its guarantee other than by reason of a release in
accordance with the terms of the indenture.
If an Event of Default, other than as specified in clause (6) above, occurs
and is continuing, the trustee or the holders of at least 25% in principal
amount of outstanding notes may declare the principal of and accrued interest
on all the notes to be due and payable by notice in writing to us and the
trustee specifying the Event of Default and stating that it is an
"acceleration notice." In that case, the principal and the accrued interest:
. will become immediately due and payable; or
. if there are any amounts outstanding under the Credit Agreement, will
become immediately due and payable upon the earlier of an acceleration
under the Credit Agreement or 5 business days after we and the
Representative under the Credit Agreement receive the acceleration notice
but only if the Event of Default is then continuing.
If an Event of Default specified in clause (6) above occurs and is
continuing, then all of the unpaid principal of, and any premium and accrued
and unpaid interest on, all of the outstanding notes will be immediately due
and payable without any declaration or other act on the part of the trustee or
any holder.
The indenture provides that, at any time after a declaration of acceleration
with respect to the notes as described in the preceding two paragraphs, the
holders of a majority in principal amount of the notes may rescind and cancel
that declaration and its consequences:
. if the rescission would not conflict with any judgment or decree;
. if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
the acceleration;
. if interest on overdue installments of interest and overdue principal,
which has become due otherwise than by the declaration of acceleration,
has been paid to the extent that the payment of that interest is lawful;
. if we have paid the trustee its reasonable compensation and reimbursed
the trustee for its expenses, disbursements and advances; and
. in the event of the cure or waiver of an Event of Default of the type
described in clause (6) above, if the trustee has received an officers'
certificate and an opinion of counsel that the Event of Default has been
cured or waived. Rescission will not affect any subsequent default or
impair any right consequent thereto.
The holders of a majority in principal amount of the outstanding notes may
waive any existing Event of Default under the indenture and its consequences.
However, they may not waive a default in the payment of the principal of or
interest on any notes.
Holders of the notes may not enforce the indenture or the notes except as
provided in the indenture and under the Trust Indenture Act. Subject to all of
the provisions of the indenture that relate to the duties of the trustee, the
trustee is under no obligation to exercise any of its rights or powers under
the indenture at the request, order or direction of any of the holders, unless
those holders have offered reasonable indemnity to the trustee. Subject to all
provisions of the indenture and applicable law, the holders of a majority in
total principal amount of the then outstanding notes have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee.
43
<PAGE>
We are required to provide an officers' certificate to the trustee promptly
when an officer obtains knowledge of any Event of Default that has occurred
and, if applicable, describe that Event of Default and its status.
No Personal Liability of Directors, Officers, Employees and Stockholders
Our directors, officers, employees and stockholders and those of our
Subsidiaries will not have any liability for any of our obligations under the
notes, the indenture or the guarantees or for any claim based on those
obligations or their creation. Each holder, by accepting a note, waives and
releases all of such liability. The waiver and release are part of the
consideration for issuance of the notes.
Legal Defeasance and Covenant Defeasance
We may, at our option and at any time, elect to have our obligations and the
obligations of the Guarantors discharged with respect to the outstanding notes
("legal defeasance"). Legal defeasance means that we will be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
notes, except for:
. the rights of holders of outstanding notes to receive payments in respect
of the principal of, any premium, and interest on the notes when payment
is due;
. our obligations with respect to the notes that concern the issuance of
temporary notes, registration of notes, mutilated, destroyed, lost or
stolen notes and the maintenance of an office or agency for payments;
. the rights, powers, trusts, duties and immunities of the trustee and our
obligations in connection therewith; and
. the legal defeasance provisions of the indenture.
In addition, we may, at our option and at any time, elect to have our
obligations released with respect to certain covenants that are described in
the indenture ("covenant defeasance"). Thereafter, any omission to comply with
those obligations will not be an Event of Default with respect to the notes.
If covenant defeasance occurs, certain events, other than nonpayment,
bankruptcy, receivership, reorganization and insolvency events, described
under "Events of Default" will no longer constitute an Event of Default with
respect to the notes.
To exercise either legal defeasance or covenant defeasance:
(1) we must irrevocably deposit with the trustee, in a trust for the
benefit of the holders, cash in U.S. dollars and/or non-callable U.S.
government obligations in amounts that will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay
the principal of, any premium, and interest on the notes on the stated
dates for payment or on the applicable redemption date;
(2) in the case of legal defeasance, we must deliver an opinion of
counsel in the U.S. to the trustee that is reasonably acceptable to the
trustee and confirms that:
. we have received from, or there has been published by, the Internal
Revenue Service a ruling; or
. since the date of the indenture, there has been a change in the
applicable federal income tax law.
In either case, the opinion of counsel must confirm that the holders will
not recognize income, gain or loss for federal income tax purposes as a
result of the legal defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if the legal defeasance had not occurred;
(3) in the case of covenant defeasance, we must deliver an opinion of
counsel in the U.S. to the trustee that is reasonably acceptable to the
trustee and confirms that the holders will not recognize income, gain or
loss for federal income tax purposes as a result of the covenant defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the covenant
defeasance had not occurred;
(4) no Event of Default has occurred and is continuing on the date of
such deposit or, in the case of an Event of Default from bankruptcy or
insolvency, at any time in the period ending on the 91st day after the date
of deposit;
44
<PAGE>
(5) the legal defeasance or covenant defeasance must not result in a
breach under the indenture, the Credit Agreement or any other material
agreement or instrument to which we or any of our Subsidiaries is a party
or by which we or any of our Subsidiaries is bound;
(6) we must deliver to the trustee an officers' certificate stating that
we did not make the deposit with the intent of preferring the holders over
any of our other creditors or with the intent of defeating, hindering,
delaying or defrauding any of our other creditors or others;
(7) we must deliver to the trustee an officers' certificate and an
opinion of counsel, each stating that all of the conditions precedent
provided for or relating to the legal defeasance or the covenant defeasance
have been complied with;
(8) we must deliver to the trustee an opinion of counsel to the effect
that:
. the trust funds will not be subject to any rights of holders of
Senior Debt, including those arising under the indenture; and
. assuming we do not file for bankruptcy between the date of deposit
and the 91st day following the date of deposit and that no holder is
an insider of our company, after the 91st day following the date of
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally; and
(9) certain other customary conditions precedent are satisfied.
The opinion of counsel required by clause (2) above with respect to a legal
defeasance need not be delivered if all of the notes not theretofore delivered
to the trustee for cancellation:
. have become due and payable; or
. will become due and payable on the maturity date within one year under
arrangements satisfactory to the trustee for the giving of notice of
redemption by the trustee in our name and at our expense.
Satisfaction and Discharge
The indenture will be discharged and will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the
notes, as expressly provided for in the indenture) as to all of the
outstanding notes when:
. either:
. all of the notes that have been authenticated and delivered (except
lost, stolen or destroyed notes which have been replaced or paid and
notes for whose payment money has been deposited in trust or
segregated and held in trust by us and thereafter repaid to us or
discharged from such trust) have been delivered to the trustee for
cancellation; or
. all of the notes that have not been delivered to the trustee for
cancellation have become due and payable and we have irrevocably
deposited with the trustee funds in an amount sufficient to pay and
discharge the entire Indebtedness on the notes not theretofore
delivered to the trustee for cancellation for principal of, any
premium, and interest on the notes to the date of deposit together
with irrevocable instructions from us directing the trustee to apply
those funds to the payment of the notes at maturity or redemption;
. we have paid all of the other sums payable by us under the indenture; and
. we have delivered to the trustee an officers' certificate and an opinion
of counsel stating that all of the conditions precedent under the
indenture that relate to the satisfaction and discharge of the indenture
have been complied with.
Modification of the Indenture
From time to time, we, the Guarantors and the trustee may amend the
indenture for certain specified purposes without consent from the holders,
including to cure ambiguities, defects or inconsistencies. However,
45
<PAGE>
such change must not, in the opinion of the trustee, adversely affect the
rights of any of the holders in any material respect. In formulating its
opinion, the trustee will be entitled to rely on evidence it deems
appropriate, including, solely on an opinion of counsel. Other modifications
and amendments of the indenture may be made with the consent of the holders of
a majority in principal amount of the then outstanding notes issued under the
indenture. However, we may not make any of the following changes unless each
holder of notes who is affected by such change gives its specific consent:
. changes that reduce the percentage of principal amount held by holders
required to amend the indenture;
. changes that reduce the rate of interest or change the time for payment
of interest, including defaulted interest, on any notes;
. changes that reduce the principal of or change the fixed maturity of any
notes, or change the date on which any notes may be subject to redemption
or reduce the redemption price of the notes;
. changes in the currency in which the notes are payable;
. changes in the provisions of the indenture that protect the right of each
holder to receive payment of principal of and interest on or after its
due date or to bring suit to enforce that payment or that permit holders
of a majority in principal amount of notes to waive defaults or Events of
Default;
. after our obligation to purchase notes arises thereunder, material
changes relating to our obligation to make and complete a change of
control offer in the event of a Change of Control or make and complete a
net proceeds offer with respect to any Asset Sale that has been completed
or, after such Change of Control has occurred or such Asset Sale has been
completed, modify any of the provisions or definitions with respect
thereto;
. changes in any of the provisions of the indenture, including the
definitions, that affect the subordination or ranking of the notes or any
guarantee in a manner which adversely affects the holders; or
. changes that release any Guarantor that is a Significant Subsidiary from
any of its obligations under its guarantee or the indenture otherwise
than in accordance with the terms of the indenture.
The Trustee
The trustee has two main roles. First, the trustee can enforce your rights
as a holder of notes against us if we default. Second, the trustee performs
administrative duties for us, such as sending you interest payments,
transferring your notes to a new buyer if you sell and sending you notices.
The indenture provides that, except during the continuance of an Event of
Default, the trustee will perform only the duties that are specifically set
forth in the indenture. During an Event of Default, the trustee will exercise
the rights and powers vested in it by the indenture, and use the same degree
of care and skill in its exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
If the trustee becomes one of our creditors, the indenture and the
provisions of the Trust Indenture Act contain certain limitations on the
trustee's rights to obtain payments of claims in certain cases or to realize
on certain property that it received in respect of any such claim as security
or otherwise. Subject to the Trust Indenture Act, the trustee will be
permitted to engage in other transactions. However, if the trustee acquires
any conflicting interest as described in the Trust Indenture Act, it must
eliminate that conflict or resign.
Certain Definitions
Set forth below is a summary of the definitions of certain terms used in the
indenture. You should refer to the indenture for the full definition of these
terms, as well as any other terms used in this section for which we do not
provide a definition.
"Acquired Indebtedness" means the Indebtedness of a Person or any of its
Restricted Subsidiaries that exists at the time that Person becomes our
Restricted Subsidiary or at the time it merges or consolidates with or
46
<PAGE>
into our company or any of our Subsidiaries or is assumed in connection with
the acquisition of assets from such Person and in each case whether or not
incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming our Restricted Subsidiary or such
acquisition, merger or consolidation.
"Affiliate" means, with respect to any specified Person, any other Person
that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Asset Acquisition" means (1) an Investment by us or any of our Restricted
Subsidiaries in any other Person pursuant to which that Person will become our
Restricted Subsidiary or the Restricted Subsidiary of any of our Restricted
Subsidiaries, or will be merged with or into us or any of our Restricted
Subsidiaries, or (2) our acquisition or that of our Restricted Subsidiaries of
the assets of any Person (other than one of our Restricted Subsidiaries) which
constitute all or substantially all of the assets of that Person or comprises
any operating unit, division or line of business of that Person or any other
properties or assets of that Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary
course of business), assignment or other transfer for value by us or any of
our Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than us or one of our Wholly Owned Restricted Subsidiaries of
. any Capital Stock of any of our Restricted Subsidiaries; or
. any other of our property or assets or those of our Restricted
Subsidiaries other than in the ordinary course of business.
Asset Sales do not include:
. a transaction or series of related transactions for which we or our
Restricted Subsidiaries receive total consideration of less than $1.5
million;
. the sale, lease, conveyance, disposition or other transfer of all or
substantially all of our assets as permitted under "Merger, Consolidation
and Sale of Assets;"
. any Restricted Payment permitted under "Limitations on Restricted
Payments" or that constitutes a Permitted Investment;
. sales of damaged, worn-out or obsolete equipment or assets that, in our
reasonable judgment, are no longer either used or useful in our business
or the business of our Restricted Subsidiaries; or
. the sale of accounts receivable pursuant to a Qualified Receivables
Transaction.
"Board Resolution" means, with respect to any Person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of that Person to have
been duly adopted by the board of directors of that Person and to be in full
force and effect on the certification date, and delivered to the trustee.
"Capital Stock" means:
. with respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated and
whether or not voting) of corporate stock, including each class of common
stock and preferred stock of such Person (but shall not include, prior to
any conversion thereof, the convertible junior subordinated debentures);
and
. with respect to any Person that is not a corporation, any and all
partnership, membership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
that Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this
47
<PAGE>
definition, the amount of those obligations at any date will be the
capitalized amount of those obligations at that date, determined in accordance
with GAAP.
"Cash Equivalents" means:
(1) marketable direct obligations that mature within one year from the
date of their acquisition and are issued by, or unconditionally guaranteed
by, the United States Government or issued by any United States agency and
backed by the full faith and credit of the United States;
(2) marketable direct obligations issued by any state of the United
States of America or any political subdivision or any public
instrumentality of any state that mature within one year from the date of
their acquisition and, at the time of acquisition, have one of the two
highest ratings obtainable from either Standard & Poor's Ratings Group
("S&P") or Moody's Investors Service, Inc. ("Moody's");
(3) commercial paper that matures no more than one year from the date of
its creation and, at the time of acquisition, has a rating of at least A-1
from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances that mature within
one year from the date of their acquisition and are issued by any bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia or any U.S. branch of a foreign bank
which have combined capital and surplus of at least $250 million at the
date of their acquisition;
(5) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds that invest substantially all of
their assets in securities of the types described in clauses (1) through
(5) above.
"Change of Control" means the occurrence of one or more of the following
events:
. any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of our assets
to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group"), together with any Affiliates thereof
(whether or not otherwise in compliance with the provisions of the
indenture), other than to the Permitted Holders;
. the approval by the holders of our Capital Stock of any plan or proposal
for the liquidation or dissolution of our company whether or not
otherwise in compliance with the provisions of the indenture;
. any Person or Group, other than the Permitted Holders, becomes the owner,
directly or indirectly, beneficially or of record, of shares representing
more than 50% of the total ordinary voting power represented by our
issued and outstanding Capital Stock; or
. the replacement of a majority of our board of directors over a two-year
period from the directors who constituted our board of directors at the
beginning of that period, where that replacement was not approved by the
Permitted Holders or a vote of at least a majority of our board of
directors then still in office who either were members of such board at
the beginning of such period or whose election as a member of such board
was previously so approved.
"Consolidated EBITDA" means, with respect to any Person, for any period, the
sum (without duplication) of:
. Consolidated Net Income; and
. to the extent Consolidated Net Income has been reduced thereby:
. all income taxes of that Person and its Restricted Subsidiaries, other
than income taxes attributable to extraordinary, unusual or nonrecurring
gains, that are paid or accrued in accordance with GAAP for that period;
48
<PAGE>
. Consolidated Interest Expense; and
. Consolidated Non-cash Charges less any non-cash items that increase
Consolidated Net Income for that period, all as determined on a
consolidated basis for that Person and its Restricted Subsidiaries in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of that Person during the four full
fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction that gives rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio for which financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" must be calculated after giving effect on a pro forma basis for the
period of such calculation to:
. the incurrence or repayment of any Indebtedness of that Person or any of
its Restricted Subsidiaries (and the application of the proceeds thereof)
giving rise to the need to make such calculation and any incurrence or
repayment of other Indebtedness (and the application of the proceeds
thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on
or prior to the Transaction Date, as if such incurrence or repayment, as
the case may be (and the application of the proceeds thereof), occurred
on the first day of the Four Quarter Period; and
. any asset sales or other dispositions or Asset Acquisitions occurring
during the Four Quarter Period or at any time subsequent to the last day
of the Four Quarter Period and on or prior to the Transaction Date, as if
such asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period.
The calculation must include any Asset Acquisition giving rise to the need
to make such calculation as a result of that Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness. In addition, it must include any Consolidated
EBITDA attributable to the assets that are the subject of the Asset
Acquisition or asset sale or other disposition during the Four Quarter Period.
That EBITDA must include any pro forma expense and cost reductions,
adjustments and other operating improvements or synergies both achieved by
such Person during such period and to be achieved by such Person and with
respect to the acquired assets, all as determined in good faith by a
responsible financial or accounting officer of our company and as reported on
or otherwise confirmed, consistent with applicable standards of the American
Institute of Certified Public Accountants, to us by an independent public
accounting firm.
If that Person or any of its Restricted Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence will give
effect to the incurrence of the guaranteed Indebtedness as if that Person or
its Restricted Subsidiary had directly incurred or otherwise assumed the
guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio":
. interest on outstanding Indebtedness determined on a fluctuating basis as
of the Transaction Date and which will continue to be so determined
thereafter will be deemed to have accrued at a fixed rate per year equal
to the rate of interest on such Indebtedness in effect on the Transaction
Date; and
. notwithstanding the above clause, interest on Indebtedness determined on
a fluctuating basis, to the extent such interest is covered by agreements
relating to Interest Swap obligations, will accrue at the rate per year
resulting after giving effect to the operation of those agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of:
49
<PAGE>
. Consolidated Interest Expense (excluding amortization or write-off of
deferred financing costs, interest paid on convertible junior
subordinated debentures in the form of convertible junior subordinated
debentures or Qualified Capital Stock and one-time accelerated interest
payments due upon the conversion of the convertible junior subordinated
debentures prior to May 1, 2004); plus
. the product of (x) the amount of all dividend payments on any series of
preferred stock of that Person (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during
such period times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of that Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum of, without duplication:
. the total of the interest expense of that Person and its Restricted
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, including, without limitation: (a) any amortization
of debt discount and amortization or write-off of deferred financing
costs (including the amortization of costs relating to interest rate caps
or other similar agreements); (b) the net costs under Interest Swap
obligations; (c) all capitalized interest; and (d) the interest portion
of any deferred payment obligation; and
. the interest component of Capitalized Lease obligations paid, accrued
and/or scheduled to be paid or accrued by that Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP, minus interest income for such period.
"Consolidated Net Income" means, with respect to any Person, for any period,
the total net income (or loss) of that Person and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP.
Excluded from this calculation are:
. after-tax gains or losses from Asset Sales (without regard to the $1.5
million limitation set forth in the definition of Asset Sales) or
abandonments or reserves relating thereto;
. items classified as extraordinary, nonrecurring or unusual gains or
losses on an after-tax basis (including, but not limited to, non-cash
charges related to the acceleration of the vesting of options);
. the net income of any Person acquired in a "pooling-of-interests"
transaction accrued prior to the date it becomes a Restricted Subsidiary
of the referent Person or is merged or consolidated with the referent
Person or any Restricted Subsidiary of the referent Person;
. the net income (but not loss) of any Restricted Subsidiary of the
referent Person to the extent that the declaration of dividends and the
making of loans or advances or similar distributions, loans or advances
by that Restricted Subsidiary of that income is restricted by a contract,
operation of law or otherwise;
. the net income of any Person, other than a Restricted Subsidiary of the
referent Person, except to the extent of cash dividends or distributions
paid to the referent Person or to a Wholly Owned Restricted Subsidiary of
the referent Person by such Person;
. in the case of a successor to the referent Person by consolidation or
merger or as a transferee of the referent Person's assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets; and
. the effect of changes in accounting principles after the Issue Date.
For purposes of the "Limitation on Restricted Payments" covenant only,
"Consolidated Net Income" will be calculated without taking into account cash
interest payments (and the related tax effects) on the convertible junior
subordinated debentures.
"Consolidated Non-cash Charges" means, with respect to any Person, for any
period, the total depreciation, amortization and other non-cash expenses of
that Person and its Restricted Subsidiaries reducing
50
<PAGE>
Consolidated Net Income of that Person and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Credit Agreement" means the Credit Agreement dated as of the Issue Date,
between us, the lenders party thereto in their capacities as lenders
thereunder, Goldman Sachs & Co., as documentation agent, Salomon Smith Barney
Inc., as syndication agent and Bankers Trust Company, as administrative agent,
together with the related documents thereto, in each case as those agreements
may be amended, supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including increasing the amount of available
borrowings thereunder or adding our Restricted Subsidiaries as additional
borrowers or Guarantors thereunder) all or any portion of the Indebtedness
under such agreement or any successor or replacement agreement and whether by
the same or any other agent, lender or group of lenders.
"Credit Facilities" means one or more debt facilities, including the Credit
Agreement, or commercial paper facilities with banks or other institutional
lenders that provide for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to those lenders or to
special purpose entities formed to borrow from those lenders against the
receivables) and/or letters of credit or banker's acceptances.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect us or
our Restricted Subsidiaries against fluctuations in currency values.
"Designated Senior Debt" means:
. Indebtedness relating to the Credit Agreement; and
. any other Indebtedness that constitutes Senior Debt which, at the time of
determination, has a total principal amount of at least $25 million and
which we specifically designated in the instrument evidencing that Senior
Debt as "Designated Senior Debt."
"Disqualified Capital Stock" means the portion of any Capital Stock 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 of that security), or
upon the occurrence of any event (other than an event which would constitute a
Change of Control or Asset Sale), matures or is mandatorily redeemable,
according to a sinking fund obligation or otherwise, or is redeemable at the
sole option of the holder (except, in each case, upon the occurrence of a
Change of Control or Asset Sale) on or prior to the final maturity date of the
notes.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary incorporated
or otherwise organized or existing under the laws of the United States, or any
state, territory or possession of the United States.
"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 between
a willing seller and a willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in other statements by another
entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Guarantor" means:
. each of our Restricted Subsidiaries as of the Issue Date; and
. each of our Restricted Subsidiaries that in the future executes a
supplemental indenture in which that Restricted Subsidiary agrees to be
bound by the terms of the indenture as a Guarantor.
51
<PAGE>
Any Person that is a Guarantor as described above will no longer be a
Guarantor when its respective Guarantee is released in accordance with the
terms of the indenture.
"Guarantor Senior Debt" means, with respect to any Guarantor: the principal
of, any premium, and interest (including any post-bankruptcy interest at the
rate provided for in the documentation with respect to the filing, whether or
not that interest is an allowed claim under applicable law) on any of that
Guarantor's Indebtedness, whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing or pursuant to which the
Indebtedness is outstanding expressly provides that the Indebtedness will not
be senior in right of payment to the guarantee of that Guarantor. Without
limiting the generality of the foregoing, Guarantor Senior Debt also includes
the principal of, any premium, interest (including any post-bankruptcy
interest at the rate provided for in the documentation with respect to the
filing, whether or not that interest is an allowed claim under applicable law)
on, and all other amounts owing in respect of:
. all monetary obligations of every nature of that Guarantor under, or with
respect to, the Credit Agreement, including obligations to pay principal
and interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities (including guarantees thereof);
. all Interest Swap obligations (and guarantees thereof); and
. all obligations (and guarantees thereof) under Currency Agreements;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, Guarantor Senior Debt does not include:
(1) any Indebtedness of the Guarantor to its Subsidiary;
(2) Indebtedness to, or guaranteed on behalf of, any stockholder,
director, officer or employee of the Guarantor or any of its Subsidiaries,
including amounts owed for compensation, unless that stockholder is also a
lender or an Affiliate of a lender under the Credit Facilities, including
the Credit Agreement;
(3) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Capital Stock;
(5) any liability for federal, state, local or other taxes owed or owing
by the Guarantor;
(6) the portion of any Indebtedness that is incurred in violation of the
indenture provisions described under "Limitation on Incurrence of
Additional Indebtedness." However, no violation will exist for purposes of
this clause if the holder(s) of the obligation or their representative have
received an officers' certificate to the effect that the incurrence of the
Indebtedness does not (or, in the case of revolving credit indebtedness,
that the incurrence of the entire committed amount thereof at the date on
which the initial borrowing thereunder is made would not) violate the
related indenture provisions;
(7) Indebtedness which, when incurred and without respect to any election
under Section 1111(b) of Title 11, United States Code, is without recourse
to us; and
(8) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other Indebtedness of the Guarantor.
"Indebtedness" means with respect to any Person, without duplication:
(1) all obligations of that Person for borrowed money, including Senior
Debt;
(2) all obligations of that Person evidenced by bonds, debentures, notes
or other similar instruments;
(3) all Capitalized Lease obligations of that Person;
(4) all obligations of that Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations and all
obligations under any title retention agreement. This does not include
52
<PAGE>
trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are
being contested in good faith by appropriate proceedings that have been
promptly instituted and diligently conducted;
(5) all obligations for the reimbursement of any obligor on any letter of
credit, banker's acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in connection with
Indebtedness referred to in clauses (1) through (5) above and clause (8)
below;
(7) all obligations of any other Person of the type referred to in
clauses (1) through (6) which are secured by any lien on any property or
asset of that Person. The amount of that Obligation will be the lesser of
the fair market value of the property or asset or the amount of the
Obligation so secured;
(8) all obligations under currency agreements and interest swap
agreements of that Person; and
(9) all Disqualified Capital Stock that Person issues. The amount of
Indebtedness represented by that Disqualified Capital Stock is equal to the
greater of its voluntary or involuntary liquidation preference and its
maximum fixed repurchase price, but excludes any accrued dividends.
Notwithstanding anything to the contrary contained in this definition,
Indebtedness will not include any of our contingent purchase price obligations
or other earn-out obligations or those of our Restricted Subsidiaries in
connection with acquisitions, if those obligations are not required to be
included as indebtedness on the face of our consolidated balance sheet in
accordance with GAAP. For purposes of this definition, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a
fixed repurchase price will be calculated in accordance with the terms of that
Disqualified Capital Stock as if it were purchased on any date on which
Indebtedness would be required to be determined pursuant to the indenture. If
that price is based upon, or measured by, the fair market value of the
Disqualified Capital Stock, the fair market value will be determined
reasonably and in good faith by the board of directors of the issuer of the
Disqualified Capital Stock.
"Independent Financial Advisor" means a firm:
. which does not, and whose directors, officers and employees or Affiliates
do not, have a direct or indirect financial interest in us; and
. which, in the judgment of our board of directors, is otherwise
independent and qualified to perform the task for which it is to be
engaged.
"Interest Swap obligations" means the obligations of any Person according to
any arrangement with any other Person, whereby, directly or indirectly, that
Person is entitled to receive periodic payments that are calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by the other Person calculated
by applying a fixed or a floating rate of interest on the same notional
amount. Interest Swap obligations include interest rate swaps, caps, floors,
collars and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect loan
or other extension of credit (including, without limitation, a guarantee) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person. The definition of Investment does not include our
extensions of trade credit and those of our Restricted Subsidiaries on
commercially reasonable terms in accordance with our normal trade practices or
those of such Restricted Subsidiary.
For purposes of the "Limitation on Restricted Payments" covenant:
. "Investment" includes and is valued at the fair market value of the net
assets of any of our Restricted Subsidiaries when that Restricted
Subsidiary is designated as our Unrestricted Subsidiary and excludes the
fair market value of the net assets of any of our Unrestricted
Subsidiaries when that Unrestricted Subsidiary is designated as our
Restricted Subsidiary; and
53
<PAGE>
. the amount of any Investment is the original cost of that Investment plus
the cost of all additional Investments by us or any of our Restricted
Subsidiaries, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to that
Investment, reduced by the payment of dividends or distributions in
connection with that Investment or any other amounts received in respect
of that Investment. However, no payment of dividends or distributions or
receipt of any such other amounts will reduce the amount of any
Investment if that payment of dividends or distributions or receipt of
any such amounts would be included in Consolidated Net Income.
If we or any of our Restricted Subsidiaries sell or otherwise dispose of any
common stock of any of our direct or indirect Restricted Subsidiaries and as a
result no longer own, directly or indirectly, 100% of the outstanding common
stock of that Restricted Subsidiary, we will be deemed to have made an
Investment on the date of that sale or disposition. The Investment will be
equal to the fair market value of the common stock of the Restricted
Subsidiary that is not sold or disposed of.
"Investors' Rights Agreement" means the Investors' Rights Agreement, dated
March 22, 1999, among us and certain of our investors.
"Issue Date" means the date of original issuance of the notes.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind. A lien includes any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest.
"Net Cash Proceeds" means the proceeds of any Asset Sale in the form of cash
or Cash Equivalents, including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents (other than
the portion of any such deferred payment constituting interest) that we or any
of our Restricted Subsidiaries receives net of:
. reasonable out-of-pocket expenses and fees relating to the Asset Sale,
including legal, accounting and investment banking fees and sales
commissions;
. taxes paid or payable after taking into account any reduction in
consolidated tax liability due to available tax credits or deductions and
any tax sharing arrangements;
. repayment of Indebtedness that is required to be repaid in connection
with the Asset Sale;
. appropriate amounts that we or any of our Restricted Subsidiaries provide
as a reserve, in accordance with GAAP, against any liabilities associated
with the Asset Sale and that we or any Restricted Subsidiary retain after
the Asset Sale. These amounts include pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with the
Asset Sale; and
. all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries or joint ventures as a result
of the Asset Sale.
"Permitted Holders" means Apollo Management, L.P. and its Affiliates and our
management.
"Permitted Indebtedness" means, without duplication, each of the following:
(1) Indebtedness under the notes and the guarantees in a total principal
amount not to exceed $200 million;
(2) Indebtedness incurred pursuant to the Credit Agreement in a total
principal amount at any time outstanding not to exceed $375 million, less
the amount of all repayments and permanent commitment reductions under the
Credit Agreement with the Net Cash Proceeds of an Asset Sale applied as
required by the "Limitation on Asset Sales" covenant. The amount of
Indebtedness that may be incurred under the Credit Agreement in accordance
with this clause (2) will be in addition to any Indebtedness that may be
54
<PAGE>
incurred under the Credit Agreement in accordance with clause (16) below.
The total principal amount of Indebtedness that may be incurred under this
clause (2) will be reduced dollar for dollar by any Indebtedness
outstanding under clause (15) below;
(3) Indebtedness under the convertible junior subordinated debentures
reduced by any principal payments or conversions of those debentures;
(4) our other Indebtedness and the Indebtedness of our Restricted
Subsidiaries that is outstanding on the Issue Date, reduced by the amount
of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions of those amounts;
(5) our Interest Swap obligations or those of any of our Restricted
Subsidiaries that cover our Indebtedness or the Indebtedness of any of our
Restricted Subsidiaries. The Interest Swap obligations must be entered into
to protect us and our Restricted Subsidiaries from fluctuations in interest
rates on outstanding Indebtedness to the extent the notional principal
amount of the Interest Swap Obligation does not, at the time it is
incurred, exceed the principal amount of the Indebtedness to which that
Interest Swap Obligation relates;
(6) Indebtedness under Currency Agreements. If a Currency Agreement
relates to Indebtedness, that Currency Agreements must not increase our
Indebtedness and the Indebtedness of our Restricted Subsidiaries
outstanding other than as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and compensation payable
under the Currency Agreement;
(7) Indebtedness of one of our Restricted Subsidiaries to us or to one of
our Wholly Owned Restricted Subsidiaries for so long as that Indebtedness
is held by us, one of our Wholly Owned Restricted Subsidiaries or the
lenders or collateral agent under the Credit Agreement, in each case
subject to no Lien held by a Person other than us, one of our Wholly Owned
Restricted Subsidiaries or the lenders or collateral agent under the Credit
Agreement. If, as of any date, any Person other than us, one of our Wholly
Owned Restricted Subsidiaries or the lenders or collateral agent under the
Credit Agreement owns or holds any such Indebtedness or holds a Lien
relating to that Indebtedness, that date will be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the issuer of that
Indebtedness;
(8) our Indebtedness to one of our Wholly Owned Restricted Subsidiaries
or the lenders or collateral agent under the Credit Agreement for so long
as that Indebtedness is held by the Wholly Owned Restricted Subsidiary or
the lenders or collateral agent under the Credit Agreement, in each case
subject to no Lien. However, our Indebtedness to any of our Wholly Owned
Restricted Subsidiaries must be unsecured and subordinated, pursuant to a
written agreement, to our obligations under the indenture and the notes.
If, as of any date, any Person other than one of our Wholly Owned
Restricted Subsidiaries or the lenders or collateral agent under the Credit
Agreement owns or holds any such Indebtedness or any Person holds a Lien
other than a Lien in favor of the lenders or collateral agent under the
Credit Agreement relating to that Indebtedness, that date will be deemed
our incurrence of Indebtedness not constituting Permitted Indebtedness;
(9) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except
in the case of daylight overdrafts) drawn against insufficient funds in the
ordinary course of business. That Indebtedness must be extinguished within
two business days of incurrence;
(10) our Indebtedness or the Indebtedness of any of our Restricted
Subsidiaries represented by letters of credit for our account or that of
the Restricted Subsidiary, in order to provide security for workers'
compensation claims, payment obligations in connection with self-insurance
or similar requirements in the ordinary course of business;
(11) Indebtedness represented by our Capitalized Lease obligations and
Purchase Money Indebtedness and that of our Restricted Subsidiaries
incurred in the ordinary course of business that does not exceed $20
million at any one time outstanding. All or a portion of the $20 million
permitted to be incurred according to this clause (11) may, at our option,
be incurred under the Credit Agreement instead of pursuant to Capitalized
Lease obligations or Purchase Money Indebtedness;
55
<PAGE>
(12) Indebtedness arising from our agreements or the agreements of our
Restricted Subsidiaries that provide for indemnification, adjustment of
purchase price or similar obligations and is incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary.
This Indebtedness does not include guarantees of Indebtedness incurred by
any Person acquiring all or any portion of the business, assets or a
Subsidiary for the purpose of financing the acquisition. The Indebtedness
will not be reflected on our balance sheet or the balance sheet of any of
our Restricted Subsidiaries (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected on the balance
sheet will not be deemed to be reflected on the balance sheet for purposes
of this clause (a)). The maximum assumable liability relating to all of
that Indebtedness will not exceed the gross proceeds, including noncash
proceeds (the fair market value of such noncash proceeds being measured at
the time it is received and without giving effect to any subsequent changes
in value), actually received by us and our Restricted Subsidiaries in
connection with the disposition;
(13) our Indebtedness or the Indebtedness of any of our Restricted
Subsidiaries relating to performance bonds, bankers' acceptances, workers'
compensation claims, surety or appeal bonds, payment obligations in
connection with self-insurance or similar obligations, and bank overdrafts
(and letters of credit in respect thereof);
(14) Refinancing Indebtedness;
(15) the incurrence by a Receivables Subsidiary of Indebtedness in a
Qualified Receivables Transaction that is without recourse to us or to any
of our Restricted Subsidiaries or their assets (other than that Receivables
Subsidiary and its assets) and is not guaranteed by any such Person. Any
outstanding Indebtedness incurred under this clause (15) will reduce the
total amount permitted to be incurred under clause (2) above to the extent
set forth in clause (2); and
(16) our additional Indebtedness and that of our Restricted Subsidiaries
in a total principal amount not to exceed $20 million at any one time
outstanding. This amount may, but need not, be incurred in whole or in part
under the Credit Agreement.
For purposes of determining compliance with the "Limitation on Incurrence of
Additional Indebtedness" covenant, if an item of Indebtedness meets the
criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (16) above or is entitled to be incurred
under the Consolidated Fixed Charge Coverage Ratio provisions of that
covenant, we will, in our sole discretion, classify or later reclassify the
item of Indebtedness in any manner that complies with this covenant. Accrual
of interest, accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with
the same terms, and the payment of dividends on Disqualified Capital Stock in
the form of additional shares of the same class of Disqualified Capital Stock
will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock for purposes of the "Limitation on Incurrence of
Additional Indebtedness" covenant.
"Permitted Investments" means:
(1) our Investments or those of any of our Restricted Subsidiaries in any
Person that is or will become our Wholly Owned Restricted Subsidiary
immediately after that Investment or that will merge or consolidate into us
or one of our Wholly Owned Restricted Subsidiaries;
(2) Investments by one of our Restricted Subsidiaries in our company. Any
Indebtedness evidencing that Investment must be unsecured and subordinated,
pursuant to a written agreement, to our obligations under the notes and the
indenture;
(3) Investments in cash and Cash Equivalents;
(4) loans and advances to our employees and officers and those of our
Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes. These loans outstanding may not exceed $5 million at any
one time;
56
<PAGE>
(5) Currency Agreements and Interest Swap obligations entered into in the
ordinary course of our business or that of our Restricted Subsidiaries and
otherwise in compliance with the indenture;
(6) additional Investments, including joint ventures, not to exceed $10
million at any one time outstanding;
(7) Investments in securities of trade creditors or customers received
under any plan of reorganization or similar arrangement upon the bankruptcy
or insolvency of those trade creditors or customers;
(8) our Investments or the Investments of our Restricted Subsidiaries
made as a result of consideration received in connection with an Asset Sale
that is made in compliance with the "Limitation on Asset Sales" covenant or
any Investment that we or any of our Restricted Subsidiaries makes in
connection with a transaction that would be an Asset Sale if it involved
total consideration of $1.5 million or more;
(9) Investments of a Person or any of its Subsidiaries in compliance with
the indenture that exist at the time that Person becomes our Restricted
Subsidiary or at the time that Person merges or consolidates with us or any
of our Restricted Subsidiaries. However, these Investments must not have
been made by the Person in connection with, or in anticipation or
contemplation of, that Person becoming our Restricted Subsidiary or the
merger or consolidation;
(10) repurchases of our Capital Stock that occur upon the exercise of
stock options if that Capital Stock represents a portion of the exercise
price of the options;
(11) our Investments or those of any of our Restricted Subsidiaries made
in connection with purchase price adjustments, contingent purchase price
payments or other earn-out payments required in connection with Investments
otherwise permitted under the indenture;
(12) Investments in securities received in settlement of trade
obligations in the ordinary course of business; and
(13) Investments in the notes.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims
either:
. not delinquent; or
. contested in good faith by appropriate proceedings and as to which we
or our Restricted Subsidiaries have set aside on our books any
reserves required under GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
that are incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if a reserve or any other
appropriate provision required by GAAP has been made in respect thereof;
(3) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default. However, the
Lien must be adequately bonded and any appropriate legal proceedings that
have been initiated for the review of the judgment must not have been
finally terminated or the period within which review proceedings may be
initiated must not have expired;
(5) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances relating to real property that do not interfere in
any material respect with the ordinary conduct of the our business or the
business of our Restricted Subsidiaries;
57
<PAGE>
(6) any interest or title of a lessor under any Capitalized Lease
Obligation. These Liens may not extend to any property or asset that is not
leased property subject to the Capitalized Lease Obligation;
(7) Liens securing Capitalized Lease obligations and Purchase Money
Indebtedness permitted under clause (11) of the definition of "Permitted
Indebtedness." In the case of Purchase Money Indebtedness:
. the Indebtedness must not exceed the cost of the property or assets
and must not be secured by any of our property or assets or those of
any of our Restricted Subsidiaries other than the property and assets
acquired; and
. the Lien securing the Indebtedness must be created within 180 days of
the acquisition or construction or, in the case of a refinancing of
any Purchase Money Indebtedness, within 180 days of the refinancing;
(8) Liens upon specific items of inventory or other goods and proceeds of
any Person securing that Person's obligations relating to bankers'
acceptances issued or created for the account of that Person to facilitate
the purchase, shipment or storage of the inventory or other goods;
(9) Liens securing reimbursement obligations relating to commercial
letters of credit which encumber documents and other property relating to
those letters of credit and products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations arising from
our statutory, regulatory, contractual, or warranty requirements or those
of our Restricted Subsidiaries, including rights of offset and set-off;
(11) Liens securing Interest Swap obligations that relate to Indebtedness
that is otherwise permitted under the indenture;
(12) Liens in the ordinary course of business that do not exceed $5
million at any one time outstanding that:
. are not incurred in connection with the borrowing of money; and
. do not materially detract from the value of the property or
materially impair its use;
(13) Liens by reason of judgments or decrees that do not otherwise result
in an Event of Default;
(14) Liens securing Indebtedness under Currency Agreements permitted
under the indenture;
(15) Liens securing Acquired Indebtedness incurred in accordance with the
"Limitation on Incurrence of Additional Indebtedness" covenant; provided
that:
. these Liens secured the Acquired Indebtedness at the time of and
prior to the incurrence of the Acquired Indebtedness by us or one of
our Restricted Subsidiaries and were not granted in connection with,
or in anticipation of, the incurrence of the Acquired Indebtedness by
us or one of our Restricted Subsidiaries; and
. these Liens do not extend to or cover any of our property or assets
or those of any of our Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to
the time the Indebtedness became our Acquired Indebtedness or the
Acquired Indebtedness of one of our Restricted Subsidiaries and are
no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to our incurrence or that of our Restricted
Subsidiaries of such Acquired Indebtedness; and
(16) Liens securing Indebtedness permitted to be incurred pursuant to
clause (16) of the definition of "Permitted Indebtedness."
"Person" means an individual, partnership, corporation, limited liability
company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Purchase Money Indebtedness" means Indebtedness that we or our Restricted
Subsidiaries incur in the normal course of business for the purpose of
financing all or any part of the purchase price, or the cost of installation,
construction or improvement, of property or equipment and any Refinancings of
that Indebtedness.
58
<PAGE>
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Qualified Receivables Transaction" means any transaction or series of
transactions that we or any of our Restricted Subsidiaries enter into in which
we or any of those Restricted Subsidiaries sell, convey or otherwise transfer
to:
. in the case of a transfer by us or our Restricted Subsidiary, a
Receivables Subsidiary; and
. in the case of a transfer by a Receivables Subsidiary, any other Person
or grant a security interest in, any of our accounts receivable or those of
any of our Restricted Subsidiaries (whether now existing or arising in the
future), and any assets related to the accounts receivable, including all
collateral securing those accounts receivable, all contracts and all
guarantees or other obligations relating to the accounts receivable, proceeds
of the accounts receivable and other assets which are customarily transferred
or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts
receivable.
"Receivables Subsidiary" means our Wholly Owned Restricted Subsidiary that
does not engage in any activities other than in connection with the financing
of accounts receivable and that is designated by our board of directors (as
provided below) as a Receivables Subsidiary. No portion of the Indebtedness or
any other obligations, contingent or otherwise, of the Wholly Owned Restricted
Subsidiary:
. may be guaranteed by us or any of our Restricted Subsidiaries, except for
guarantees of obligations (other than the principal of, and interest on,
Indebtedness) under representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection
with a Qualified Receivables Transaction;
. may be recourse to or obligate us or any of our Restricted Subsidiaries
in any way other than under representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection
with a Qualified Receivables Transaction; or
. may subject any of our property or assets or those of our Restricted
Subsidiaries, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than under representations, warranties,
covenants and indemnities entered into in the ordinary course of business
in connection with a Qualified Receivables Transaction.
Neither we nor any of our Restricted Subsidiaries may have any material
contract, agreement, arrangement or understanding with the Wholly Owned
Restricted Subsidiary unless it is:
. on terms at least as favorable to us or the Restricted Subsidiary as
those terms that might be obtained at the time from Persons who are not
our Affiliates, and
. unless it is for fees payable in the ordinary course of business in
connection with servicing accounts receivable.
Neither we nor any of our Restricted Subsidiaries have any obligation to
maintain or preserve the Wholly Owned Restricted Subsidiary's financial
condition or cause the Wholly Owned Restricted Subsidiary to achieve certain
levels of operating results. Any designation as a Receivables Subsidiary by
our board of directors will be evidenced to the trustee by:
. filing with the trustee a Board Resolution giving effect to the
designation; and
. an officers' certificate certifying that the designation complied with
the foregoing conditions.
"Refinance" means, in respect of any security or Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a
security or Indebtedness in exchange or replacement for, that security or
Indebtedness in whole or in part. "Refinanced" and "Refinancing" have
correlative meanings.
59
<PAGE>
"Refinancing Indebtedness" means any Refinancing by us or any of our
Restricted Subsidiaries of Indebtedness that is incurred in accordance with
the "Limitation on Incurrence of Additional Indebtedness" covenant, other than
according to clauses (2), (5), (6), (7), (8), (9), (10), (11), (12), (13),
(15) or (16) of the definition of Permitted Indebtedness. The Refinancing may
not:
. result in an increase in the total principal amount of Indebtedness of
the Person as of the date of the proposed Refinancing plus the amount of
any premium required to be paid under the terms of the instrument
governing the Indebtedness and plus the amount of reasonable expenses we
incur in connection with the Refinancing; or
. create Indebtedness with a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or with a final maturity earlier than the final maturity of
the Indebtedness being Refinanced.
If the Indebtedness being Refinanced is our Indebtedness, then that
Refinancing Indebtedness will solely be our Indebtedness. In addition, if the
Indebtedness being Refinanced is subordinate or junior to the notes, then that
Refinancing Indebtedness will be subordinate to the notes at least to the same
extent and in the same manner as the Indebtedness being Refinanced.
"Registration Rights Agreement" means the registration rights agreement
dated as of the Issue Date among the us, the Guarantors and the Initial
Purchasers.
"Representative" means the indenture trustee or other trustee, agent or
representative relating to any Designated Senior Debt. If, and for so long as,
any Designated Senior Debt lacks such a representative, then the
Representative for that Designated Senior Debt will be the holders of a
majority in outstanding principal amount of the Designated Senior Debt.
"Restricted Subsidiary" of any Person means any Subsidiary of that Person
which, at the time of determination, is not an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any Person is a party, which provides for the
leasing to us or one of our Restricted Subsidiaries of any property, whether
owned by us or any of our Restricted Subsidiaries at the Issue Date or later
acquired, which we or the Restricted Subsidiary have or will sell or transfer
to the Person or to any other Person from whom funds have been or are to be
advanced by the Person on the security of that property.
"Securities Purchase Agreement" means the Securities Purchase Agreement,
dated as of March 22, 1999, between us and Boss Investment LLC.
"Senior Debt" means the principal of, premium, if any, and interest
(including any post-bankruptcy interest accruing at the rate provided for in
the documentation relating to the bankruptcy, whether or not that interest is
an allowed claim under applicable law) on our Indebtedness, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless the instrument creating or evidencing the Indebtedness or under which
the Indebtedness is outstanding expressly provides that the Indebtedness will
not be senior in right of payment to the notes. Senior Debt also includes the
principal of, premium, if any, interest (including any post-bankruptcy
interest accruing at the rate provided for in the documentation relating to
the bankruptcy, whether or not that interest is an allowed claim under
applicable law) on, and all other amounts owed that relate to:
. all of our monetary obligations of every nature under the Credit
Agreement, including obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities;
. all Interest Swap obligations, including guarantees of the Interest Swap
obligations; and
. all obligations under Currency Agreements, including guarantees of the
Currency Agreements.
60
<PAGE>
Notwithstanding the foregoing, Senior Debt does not include:
(1) our Indebtedness to one of our Subsidiaries;
(2) Indebtedness to, or guaranteed on behalf of, any of our stockholders,
directors, officers or employees or those of any of our Subsidiaries,
including amounts owed for compensation, other than a stockholder who is a
lender or an Affiliate of a lender under the Credit Facilities, including
the Credit Agreement;
(3) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Capital Stock;
(5) any liability for federal, state, local or other taxes that we owe;
(6) that portion of any Indebtedness incurred in violation of the
indenture provisions set forth under "Limitation on Incurrence of
Additional Indebtedness." However, this clause (6) will not be violated if
the holder(s) of the obligation or their representative have received an
officers' certificate of our company to the effect that the incurrence of
the Indebtedness, or, in the case of revolving credit indebtedness, that
the incurrence of the entire committed amount of that revolving credit
indebtedness at the date on which the initial borrowing thereunder is made,
does not violate the provisions of the indenture;
(7) Indebtedness represented by the convertible junior subordinated
debentures;
(8) Indebtedness which, when incurred and without respect to any election
under Section 1111(b) of Title 11, United States Code, is without recourse
to us; and
(9) any Indebtedness which is, by its express terms, subordinated in
right of payment to any other of our Indebtedness.
"Significant Subsidiary", with respect to any Person, means any Restricted
Subsidiary of that Person that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the Exchange Act
based upon the most recent pro forma annual financial information we file with
the SEC.
"Subsidiary", with respect to any Person, means:
. any corporation of which the outstanding Capital Stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances is owned, directly or indirectly, by that
Person; or
. any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly,
owned by that Person.
"Unrestricted Subsidiary" of any Person means:
. any Subsidiary of that Person that at the time of determination is or
will continue to be designated an Unrestricted Subsidiary by the board of
directors of that Person in the manner provided below; and
. any Subsidiary of an Unrestricted Subsidiary.
The board of directors may designate any Subsidiary, including any newly
acquired or newly formed Subsidiary, as an Unrestricted Subsidiary unless that
Subsidiary owns any of our Capital Stock or owns or holds any Lien on any of
our property or the property of any of our other Subsidiaries that is not a
Subsidiary of the Subsidiary to be so designated. In addition:
. we must certify to the trustee that the designation complies with the
"Limitation on Restricted Payments" covenant; and
. each Subsidiary to be so designated and each of its Subsidiaries has not,
at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly
liable with respect to any Indebtedness under which the lender has
recourse to any of our assets or those of any of our Restricted
Subsidiaries.
61
<PAGE>
The board of directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if:
. immediately after giving effect to the designation, we are able to incur
at least $1.00 of additional Indebtedness, other than Permitted
Indebtedness, in compliance with the "Limitation on Incurrence of
Additional Indebtedness" covenant; and
. immediately before and immediately after giving effect to such
designation, no Event of Default has occurred and is continuing.
Any such designation by the board of directors must be evidenced to the
trustee by promptly filing with the trustee a copy of the Board Resolution
that gives effect to the designation and an officers' certificate that
certifies that the designation complies with the foregoing provisions.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
total principal amount of the Indebtedness into (b) the sum of the total of
the products obtained by multiplying:
. the amount of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by
. the number of years (calculated to the nearest one-twelfth) which will
elapse between the applicable date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Wholly Owned
Subsidiary of that Person which, at the time of determination, is a Restricted
Subsidiary of that Person.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of that Person
of which all of the outstanding voting securities, other than in the case of a
foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law, are
owned by that Person or any Wholly Owned Subsidiary of that Person.
Book-Entry; Delivery And Form
The exchange notes may be issued in the form of one or more registered notes
in global form without coupons, each a "global note." Each global note will be
deposited with, or on behalf of, The Depository Trust Company, "DTC," and
registered in the name of Cede & Co., as nominee of DTC, or will remain in the
custody of IBJ Whitehall Bank & Trust Company, as trustee under the indenture,
pursuant to an agreement between DTC and the trustee.
DTC has advised us that it is:
. a limited purpose trust company organized under the laws of the State of
New York;
. a "banking organization" within the meaning of the New York Banking Law;
. a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the Uniform Commercial
Code; and
. a "clearing agency" registered pursuant to Section 17A of the Exchange
Act.
DTC holds securities that its participants deposit with it and records
settlements of securities transactions (such as transfers and pledges) in such
deposited securities among DTC participants. DTC keeps computerized records of
DTC participants' accounts, which eliminates the need to issue certificates.
DTC participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. Other
organizations, including securities brokers and dealers, banks and trust
companies also use DTC's book-entry system, as indirect DTC participants.
Investors who are not participants may beneficially own securities held by or
on behalf of DTC only through participants or indirect participants.
62
<PAGE>
We expect that pursuant to procedures established by DTC, ownership of the
exchange notes will be shown on, and the transfer of such ownership will be
effected only through:
. records maintained by DTC, with respect to interests of participants; and
. records of participants and the indirect participants, with respect to
the interests of persons other than participants.
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of those securities in definitive form.
Accordingly, the ability to transfer interests in the exchange notes
represented by a global security to such persons may be limited. DTC can act
only on behalf of its participants, who in turn act on behalf of persons who
hold interests through participants. Therefore, the ability of a person with
an interest in exchange notes represented by a global security to pledge or
transfer that interest to persons or entities that do not participate in DTC's
system, or to otherwise take actions regarding that interest, may be affected
by the lack of a physical definitive security representing that interest.
So long as DTC or its nominee is the registered owner of a global security,
DTC or its nominee will be considered the sole owner or holder of the exchange
notes represented by the global security for all purposes under the indenture.
No beneficial owner of an interest in the exchange notes represented by a
global security will be able to transfer that interest except in accordance
with DTC's procedures, in addition to those provided for under the indenture.
The trustee will make payments of the principal of, any premium, and
interest (including any additional interest) on any exchange notes represented
by a global security registered in the name of DTC or its nominee on the
applicable record date to or at the direction of DTC or its nominee, as the
registered holders. We are only responsible for payments of principal, any
premium and interest to DTC. Neither we nor the trustee has any responsibility
or liability for the payment of such amounts to owners of beneficial interests
in a global security. DTC is responsible for the disbursement of those
payments to DTC participants. DTC participants and indirect DTC participants
are responsible for payments to their clients. Customary practices between the
participants and their clients will govern these payments.
Transfers between participants in DTC will be done in the ordinary way
through DTC's same-day funds system in accordance with DTC rules and will be
settled in same day funds. If a holder requires physical delivery of
certificates, the holder must transfer its interest in the exchange notes
represented by the global security according to DTC's normal procedures and
the procedures set forth in the indenture.
We have been advised by DTC that it will take any action that a holder of
exchange notes may take, but only at the direction of one or more participants
whose accounts are credited with an interest in the global note. Additionally,
DTC will only take action as to that portion of the total amount of exchange
notes represented by the global security as to which the participants have
given such direction. However, if there is an event of default under the
indenture, DTC will exchange the global notes for exchange notes represented
by certificates, which it will distribute to its participants.
DTC may discontinue providing its services to us at any time if they give us
reasonable notice. Neither we nor the trustee have any responsibility for the
performance of DTC or its participants or indirect participants of their
obligations under the rules and procedures that governs their operations.
Book-entry exchange notes represented by a global note will be exchangeable
for exchange notes represented by certificates with the same terms in
authorized denominations if:
. requested by a holder of an interest in the exchange notes represented by
the global security; or
. DTC notifies us that it is unwilling or unable to continue as a
depository and a successor depository is not appointed by us within 90
days.
63
<PAGE>
DESCRIPTION OF THE CONVERTIBLE JUNIOR SUBORDINATED DEBENTURES
On April 30, 1999, Boss Investment acquired a total principal amount of our
7 1/2% convertible junior subordinated debentures. The convertible junior
subordinated debentures will mature on April 30, 2012. We will pay interest
quarterly. We will pay interest in additional convertible debentures, or at
our option, in cash through the fifth anniversary of the issuance of the
notes. However, from and after the third anniversary through the fifth
anniversary of issuance, we will pay interest in cash if requested by a
majority of the holders of the convertible junior subordinated debentures.
Thereafter, we will only pay interest in cash. Our payment of interest in cash
may be restricted by the terms of our other financing arrangements.
The convertible junior subordinated debentures are convertible at an initial
conversion price of $22.50 per $1,000 principal amount. The conversion price
is subject to customary antidilution adjustments. Upon conversion of the
convertible junior subordinated debentures, a holder will receive a number of
shares of common stock equal to the principal amount of the convertible junior
subordinated debentures being converted plus any accrued interest divided by
the conversion price then in effect. If the convertible junior subordinated
debentures are converted prior to the fifth anniversary of their issuance, the
number of shares of common stock issuable upon conversion will also give
effect to the amount of interest that would have been paid on the convertible
junior subordinated debentures through the fifth anniversary of their
issuance. This is subject, however, to a maximum of 30 months of additional
interest unless such conversion is in connection with a change of control of
our company.
Pursuant to our amended and restated certificate of incorporation, holders
of the convertible junior subordinated debentures are entitled to elect as a
class three directors to our board of directors (or if the board has more than
ten directors, no less than 30% of the board) and otherwise to vote on an as
converted basis with the common stock on all matters submitted to the holders
of common stock.
If we default in the payment of any of our indebtedness or default in a
manner that gives rise to an acceleration of any of our indebtedness or if we
materially and intentionally breach the agreements relating to the investment
by Boss Investment, holders of the convertible junior subordinated debentures
will be entitled to elect a majority of the board of directors until we cure
the default or breach. However, before the holders' can exercise this right,
they must provide notice and a time period in which to cure the default or
breach.
Certain of our significant corporate actions will require the prior consent
of Boss Investment for so long as Boss Investment owns 50% of the outstanding
convertible junior subordinated debentures. Those actions that require consent
include:
. mergers, unless in connection with a "permitted acquisition;"
. a recapitalization, liquidation or reorganization of our business or a
material change in our business;
. acquisitions or dispositions with a total value of over $100 million;
. payment of dividends;
. acquisitions of capital stock or indebtedness junior to the convertible
junior subordinated debentures;
. the hiring, firing or amendment of the employment terms of our Chief
Executive Officer;
. any increase in the size of the board of directors above ten directors
unless designees of Boss Investment continue to comprise at least 30% of
the board;
. transactions with affiliates not in the ordinary course of business; and
. any agreement that would restrict our ability to honor the rights of the
holders of the convertible junior subordinated debentures.
64
<PAGE>
DESCRIPTION OF THE CREDIT FACILTY
The credit facility consists of a $125.0 million term loan used as a part of
the consideration paid in the tender offer and a $225.0 million revolving
credit facility, in each case maturing five years from the date of the
borrowing. A portion of the revolving credit facility was used to finance a
portion of the tender offer and its related expenses. The revolving credit
facility can also be used for acquisitions and general corporate purposes,
including working capital requirements and contingent payments that are
required by certain acquisition agreements with respect to previously
completed acquisitions.
As of June 25, 1999, we had $142.5 million of availability under the credit
facility.
Subject to certain limited exceptions, the credit facility requires
mandatory repayments and mandatory commitment reductions with the proceeds
from the following:
. assets sales;
. the issuance of debt and preferred stock; and
. insurance and condemnation claims.
In the case of asset sales or the issuance of debt and preferred stock, the
percentage of net proceeds that we are required to use to permanently repay
term loans and reduce the commitments under the credit facility will be
reduced to 75% based on our achievement of certain levels of financial
performance. We may voluntarily prepay the credit facility at any time,
subject to certain notice requirements and to the payment of certain losses
and expenses suffered by the lenders as a result of our prepayment of
eurodollar rate loans prior to the end of the applicable interest period.
The credit facility bears interest at the sum of the applicable margin and,
at our option, either the "base rate" or the "eurodollar rate" (as defined in
the credit facility). The base rate will be the higher of:
. the rate that Bankers Trust Company announces from time to time as its
prime lending rate, as in effect from time to time; and
. 1/2 of 1% in excess of the overnight federal funds rate.
The applicable margin will be a percentage per year equal to:
. in the case of term loans maintained as base rate loans, 2.00%;
. in the case of term loans maintained as eurodollar rate loans, 3.00%;
. in the case of revolving loans maintained as base rate loans, 1.50%; and
. in the case of revolving loans maintained as eurodollar rate loans,
2.50%.
In each case, the applicable margin is subject to step-downs to be determined
based on certain levels of financial performance. We will pay a commitment fee
in an amount equal to 0.50% per year on the daily average unused portion of
the credit facility, subject to step-downs to be determined based on certain
levels of financial performance. Additionally, the then applicable commitment
fee percentage will be increased by 0.25% whenever the total unutilized
commitments under the revolving credit facility exceed 75% of the sum of the
total revolving commitment then in effect under the credit facility plus the
total outstanding principal amount of the term loans.
The credit facility contains certain financial covenants as well as
covenants that, among other things, restrict:
. indebtedness and liens;
. the sale of assets;
. mergers, acquisitions and other business combinations;
. the voluntary prepayment of certain of our debt (including the exchange
notes and the convertible junior subordinated debentures);
65
<PAGE>
. transactions with affiliates;
. capital expenditures;
. loans and investments;
. the payment of cash dividends to stockholders; and
. the repurchase or redemption of stock from stockholders.
The credit facility contains customary events of default, including:
. payment defaults;
. breaches of representations and warranties;
. covenant defaults;
. cross-default and cross-acceleration to certain other indebtedness;
. certain events of bankruptcy and insolvency;
. certain events under the Employee Retirement Income Security Act of 1974,
as amended;
. material judgments;
. actual or asserted failure of any guaranty or security document that
supports the credit facility to be in full force and effect; and
. a change of control of our company.
If such a default occurs, the lenders under the credit facility would be
entitled to take various actions, including any actions that could be taken by
a secured creditor, the acceleration of amounts due under the credit facility
and requiring that all such amounts be immediately paid in full.
All obligations under the credit facility are jointly and severally
guaranteed by each of our direct and indirect subsidiaries. The indebtedness
under the credit facility is secured by a pledge of our subsidiaries' capital
stock (but not to exceed 65% of the voting stock of foreign subsidiaries) and
a perfected lien and security interest in substantially all of our tangible
and intangible assets and those of our direct and indirect subsidiaries. Our
future domestic subsidiaries will guarantee the credit facility and secure
that guarantee with certain of their real property and substantially all of
their tangible and intangible personal property.
66
<PAGE>
UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a general discussion of the material U.S. federal income
tax consequences associated with the exchange of original notes for exchange
notes and the ownership and disposition of the notes. This summary applies
only to the beneficial owner of a note who acquired the notes for cash at the
initial offering, from the initial purchaser and for the original offering
price of the notes. This discussion is based upon the U.S. federal tax law now
in effect, which is subject to change, possibly retroactively. We urge you to
consult your tax advisor regarding the U.S. federal tax consequences of
acquiring, holding, and disposing of the notes, as well as any tax
consequences that may arise under the laws of any foreign, state, local, or
other taxing jurisdiction.
We have not requested, and will not request, a ruling from the Internal
Revenue Service with respect to any of the U.S. federal income tax
consequences described below. Therefore, we cannot assure you that the IRS
will not disagree with or challenge any of the conclusions set forth in this
discussion. This discussion does not address the tax consequences to
subsequent purchasers of the notes and is limited to investors who hold the
notes as capital assets within the meaning of Section 1221 of the Internal
Revenue Code. Furthermore, this discussion does not address all aspects of
U.S. federal income taxation that may be applicable to investors in light of
their particular circumstances, or to investors subject to special treatment
under U.S. federal income tax law. Such investors include, among others,
certain financial institutions, insurance companies, tax-exempt entities,
dealers in securities or foreign currency, persons who have acquired notes as
part of a straddle, hedge, conversion transaction, constructive sale, or other
integrated investment, investors in pass-through entities or persons whose
functional currency is not the U.S. dollar.
As used in this section, a "U.S. holder" means a beneficial owner of an
exchange note that is, for U.S. federal income tax purposes:
. an individual citizen or resident of the U.S.;
. a corporation created or organized in or under the laws of the U.S. or of
any political subdivision of the U.S.;
. an estate, the income of which is subject to U.S. federal income tax
regardless of its source;
. a trust, if a U.S. court is able to exercise primary supervision over the
administration of the trust and one or more U.S. persons have the
authority to control all substantial decisions of the trust; or
. a person whose worldwide income and gain is otherwise subject to U.S.
federal income taxation on a net income basis.
As used in this section, the term "non-U.S. holder" means a beneficial owner
of notes that not a U.S. holder.
Summary of Tax Treatment
- -------------------------------------------------------------------------------
Exchange Offer . no gain or loss realized
. tacking of holding periods
. same basis
- -------------------------------------------------------------------------------
Interest on Notes . taxable as ordinary income
- -------------------------------------------------------------------------------
Disposition of Notes . excess of amount realized over basis is
a capital gain
. excess of basis over amount realized is
a capital loss
67
<PAGE>
Exchange of Original Notes for Exchange Notes
Neither participation in the exchange offer nor the filing of a shelf
registration statement should result in a taxable exchange to any holder of an
original note.
When we complete the exchange offer, there should be no taxable exchange
because the exchange would be conducted according to the terms of the original
notes and the exchange would not result in a material alteration of the terms
of the original notes. Accordingly, the exchange notes would be treated as
continuations of the corresponding original notes, and there should be no U.S.
federal income tax consequences to holders who elect to exchange original
notes for exchange notes. Consequently:
. no gain or loss will be realized by a U.S. holder upon receipt of an
exchange note;
. the holding period of the exchange notes will include the holding period
of the original notes that were exchanged for them; and
. the adjusted tax basis of the exchange notes will be the same as the
adjusted tax basis of the original notes immediately before they were
exchanged.
The exchange offer would not result in any federal income tax consequences
to holders of original notes who do not exchange their notes for exchange
notes.
If we file a shelf registration statement in connection with the original
notes, there should be no taxable exchange because the shelf registration
statement would be filed according to the terms of the original notes and that
filing would not result in a material alteration of the terms of the original
notes. Therefore, there should be no U.S. federal income tax consequences to
any holders of the notes from the filing of a shelf registration statement.
Payments of Interest
Interest on the exchange notes will be taxable as ordinary income for U.S.
federal income tax purposes when received by a U.S. holder in accordance with
its method of accounting for tax purposes.
Original Issue Discount
We intend to take the position (which generally will be binding on holders)
that the notes are not issued with original issue discount. Accordingly, the
holders of notes will include stated interest in gross income in accordance
with their methods of accounting for tax purposes. This position is based in
part upon our conclusion that, as of the date of this prospectus, the
likelihood of making additional interest payments as described under "Exchange
Offer--Registration Defaults; Additional Interest" should be "remote" within
the meaning of applicable Treasury regulations. The Internal Revenue Service
may or may not agree with this conclusion.
Disposition
In general, a holder of notes will recognize gain or loss upon the sale,
exchange, redemption or other taxable disposition of the notes measured by the
difference between:
. the amount of cash and fair market value of property received; and
. the holder's tax basis in the notes.
Any such gain or loss will generally be long-term capital gain or loss,
provided the notes were a capital asset in the hands of the holder and had
been held for more than one year.
Non-U.S. Holders
Under present U.S. federal income and estate tax law, assuming certain
certification requirements are satisfied (which include identification of the
beneficial owner of the instrument) and subject to the discussion of backup
withholding below:
68
<PAGE>
. payments of interest on the notes to any non-U.S. holder will not be
subject to U.S. federal income or withholding tax, provided that:
. the holder does not own 10% or more of the total combined voting
power of all of the classes of our stock entitled to vote;
. the holder is not a bank receiving interest under a loan agreement
entered into in the ordinary course of its trade or business or a
controlled foreign corporation that is related to us through stock
ownership; and
. those interest payments are not effectively connected with the
conduct of a U.S. trade or business of the holder.
. a holder of notes who is a non-U.S. holder will not be subject to the
U.S. federal income tax on gain realized on the sale, exchange, or other
disposition of notes, unless:
. that holder is an individual who is present in the U.S. for 183 days
or more during the taxable year and certain other requirements are
met; or
. the gain is effectively connected with the conduct of a U.S. trade or
business of the holder.
If interest on the notes is exempt from withholding of U.S. federal income
tax under the rules described above (without regard to the certification
requirement), the notes will not be included in the estate of a deceased non-
U.S. holder for U.S. federal estate tax purposes.
The certification referred to above may be made on an Internal Revenue
Service Form W-8 or a substantially similar substitute form.
Information Reporting and Backup Withholding
We will, where required, report to the holders of notes and the IRS the
amount of any interest paid on the notes in each calendar year and the amounts
of any federal tax withheld with respect to those payments. A noncorporate
U.S. holder may be subject to information reporting and to backup withholding
at a rate of 31% with respect to payments of principal and interest made on
notes, or on proceeds of the disposition of notes before maturity, unless that
U.S. holder provides a correct taxpayer identification number or proof of an
applicable exemption, and otherwise complies with applicable requirements of
the information reporting and backup withholding rules.
Subject to certification rules, U.S. information reporting requirements and
backup withholding tax will generally not apply to interest paid on the notes
to a non-U.S. holder at an address outside the U.S. Payments by a U.S. office
of a broker of the proceeds of a sale of the notes are subject to both backup
withholding at a rate of 31% and information reporting unless the holder
certifies its non-U.S. holder status under penalties of perjury and provides
its name and address or otherwise establishes an exemption. Information
reporting requirements (but not backup withholding) will also apply to
payments of the proceeds of sales of the notes by foreign offices of U.S.
brokers, or foreign brokers with certain types of relationships to the U.S.,
unless the broker has documentary evidence in its records that the holder is a
non-U.S. holder and certain other conditions are met, or the holder otherwise
establishes an exemption.
Backup withholding is not an additional tax. Any amount withheld under the
backup withholding rules will be refunded or credited against the non-U.S.
holder's U.S. federal income tax liability, provided that the required
information is furnished to the IRS.
The U.S. Treasury Department has issued final Treasury regulations governing
information reporting and the certification procedures regarding withholding
and backup withholding on certain amounts paid to non-U.S. holders after
December 31, 2000. The new Treasury regulations would alter the procedures for
claiming the benefits of an income tax treaty and may change the certification
procedures relating to the receipt by intermediaries of payments on behalf of
a beneficial owner of notes. You should consult your tax advisor concerning
the effect, if any, of such new Treasury regulations on an investment in the
notes.
69
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account by
accepting the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of the exchange notes. A broker-
dealer may use this prospectus, as it may be amended or supplemented from time
to time, in connection with resales of exchange notes received in exchange for
original notes, where the exchange notes were acquired as a result of market-
making or other trading activities. We have agreed that, for a period of 150
days after the expiration date, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
resale of its exchange notes.
We will not receive any proceeds from any sale of exchange notes by broker-
dealers. Broker-dealers may sell from time to time exchange notes they receive
for their own account pursuant to the exchange offer:
. in one or more transactions in the over-the-counter market;
. in negotiated transactions;
. through the writing of options on the exchange notes; or
. through a combination of these methods of resale.
Broker-dealers may sell at:
. market prices prevailing at the time of resale;
. prices related to prevailing market prices; or
. negotiated prices.
Any broker-dealer may resell directly to purchasers or to or through brokers
or dealers who may receive compensation in the form of commissions or
concessions from the broker-dealer or the purchasers of the exchange notes.
Any broker-dealer that resells exchange notes that it received for its own
account by accepting the exchange offer and any broker or dealer that
participates in a distribution of the exchange notes may be an "underwriter"
within the meaning of the Securities Act. Any profit on any underwriter's
resale of exchange notes and any commission or concessions received by any
underwriter may be underwriting compensation under the Securities Act. The
letter of transmittal states that, a broker-dealer does not admit that it is
an "underwriter" within the meaning of the Securities Act by acknowledging
that it will deliver or by delivering a prospectus.
For a period of 150 days after the expiration date we will promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests them in the letter of
transmittal. We have agreed to pay all expenses incident to the exchange
offer, including the expenses of one counsel for the initial purchasers, other
than commissions or concessions of any broker-dealers and will indemnify the
holders of the original notes, including any broker-dealers, against
liabilities under the Securities Act.
LEGAL MATTERS
F. Traynor Beck, Esquire, who is our general counsel, will issue an opinion
about the legality of the offered securities. As of June 30, 1999, Mr. Beck
beneficially owned 166,729 shares of common stock which may be acquired upon
the exercise of options that are exercisable.
EXPERTS
The historical financial statements incorporated by reference in this
prospectus, except as they relate to the unaudited interim periods, have been
audited by various independent accountants. The companies and periods covered
by these audits are indicated in the individual accountants' reports. Such
financial statements have been so incorporated by reference in reliance on the
reports of the various independent accountants given on the authority of such
firms as experts in auditing and accounting.
70
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
We have not authorized any person to give any information or make any repre-
sentations other than those contained in this prospectus, and, if give or
made, you must not rely on any such information or representations as having
been authorized by us. This prospectus does not constitute an offer to sell or
the solicitation of an offer to buy any securities other than the securities
to which it relates or an offer to sell or the solicitation of an offer to buy
such securities in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of our company since the date hereof or that the infor-
mation contained herein is correct as of any time subsequent to its date.
---------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Building One
Services Corporation
---------------
PROSPECTUS
---------------
Offer to Exchange 10 1/2% Senior
Subordinated Notes Due 2009 for 10 1/2%
Senior Subordinated Notes Due 2009
July 19, 1999
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of
directors to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty, except for liability (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (c) under Section 174 of the DGCL, or (d) for any
transaction from which the director derived an improper personal benefit.
Article 10 of the Company's Restated Certificate of Incorporation provides
that the personal liability of directors of the Company is eliminated to the
extent permitted by Section 102(b)(7) of the DGCL.
Section 145 of the DGCL (i) requires a corporation to indemnify for
expenses, including attorney's fees, incurred by a director or officer who has
been successful in defending any claim or proceeding in which the director or
officer is involved because of his or her position with the corporation, (ii)
permits indemnification (a) for judgments, fines, expenses and amounts paid in
settlement in the case of a claim by a party other than the corporation or in
the right of the corporation, even where a director or officer has not been
successful, in cases where the director or officer acted in good faith and in
a manner that he or she reasonably believed was in or not opposed to the best
interests of the corporation provided, in the case of a criminal proceeding,
that the director or officer had no reason to believe his or her conduct was
unlawful or (b) for expenses in the case of a claim or proceeding by or in the
right of the corporation, including a derivative suit (but not judgments,
fines or amounts in settlement), if the director or officer acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation and has not been adjudged liable to the
corporation unless a court determines that, despite such adjudication but in
view of all of the circumstances, he or she is entitled to indemnification,
and (iii) permits the advancement of expenses to directors and officers who
are defending an action, lawsuit or proceeding upon receipt of an undertaking
for the repayment of such advance if it is ultimately determined that the
director or officer has not met the applicable standard of conduct and is,
therefore, not entitled to be indemnified. Section 145 also provides that the
permissive indemnification described above is to be made upon a determination
that the director or officer has met the required standard of conduct by (a) a
majority of disinterested directors, (b) a committee of disinterested
directors designated by a majority of such directors, (c) independent legal
counsel or (d) the stockholders.
The Company has entered into Indemnity Agreements because the Board believes
that the Company's directors' and officers' insurance does not fully protect
the directors and executive officers and that the absence of Indemnity
Agreements may threaten the quality and stability of the governance of the
Company by reducing the Company's ability to attract and retain qualified
persons to serve as directors and executive officers of the Company, and by
deterring such persons in the making of entrepreneurial decisions for fear of
later legal challenge. In addition, the Board of Directors believes that the
Indemnity Agreements complement the indemnification rights and liability
protections currently provided directors and executive officers of the Company
under the Amended and Restated Bylaws. These rights and protections were
designed to enhance the Company's ability to attract and retain highly
qualified individuals to serve as directors and executive officers in view of
the high incidence of litigation, often involving large amounts, against
publicly-held companies and the need to provide such persons with reliable
knowledge of the legal risks to which they are exposed. The Indemnity
Agreements complement these rights and protections by providing directors and
executive officers with contractual rights to indemnification, regardless of
any amendment to or repeal of the indemnification provisions in the Bylaws.
The Company's Amended and Restated Bylaws provide that the Company shall
indemnify to the fullest extent authorized or permitted by law directors and
officers of the Company who have been made or threatened to be made a party to
any threatened, pending or completed action, suit or proceeding by reason of
the fact that he or she is or was a director or officer of the Company.
II-1
<PAGE>
The Indemnity Agreements are predicated upon Section 145(f), which
recognizes the validity of additional indemnity rights granted by contractual
agreement. The Indemnity Agreements alter or clarify statutory indemnity
provisions, in a manner consistent with the Company's Amended and Restated
Bylaws, in the following respects: (i) indemnification is mandatory, rather
than optional, to the full extent permitted by law, including partial
indemnification under appropriate circumstances, except that the Company is
not obligated to indemnify an indemnitee with respect to a proceeding
initiated by the indemnitee (unless the Board should conclude otherwise),
payments made by an indemnitee in a settlement effected without the Company's
written consent, payments that are found to violate the law, conduct found to
constitute bad faith or active and deliberate dishonesty or short-swing profit
liability under Section 16(b) of the Exchange Act or to the extent that
indemnification has been determined to be unlawful in an arbitration
proceeding conducted pursuant to the provisions of the Indemnity Agreement;
(ii) prompt payment of litigation expenses in advance is mandatory, rather
than optional, provided the indemnitee undertakes to repay such amounts if it
is ultimately determined that the indemnitee is not entitled to be indemnified
and provided the indemnitee did not initiate the proceeding; (iii) any dispute
arising under the Indemnity Agreement is to be resolved through an arbitration
proceeding, which will be paid for by the Company unless the arbitrator finds
that the indemnitee's claims or defenses were frivolous or in bad faith,
unless such arbitration is inconsistent with an undertaking given by the
Company, such as to the Securities and Exchange Commission, that the Company
will submit to a court the question of indemnification for liabilities under
the Securities Act of 1933, as amended, and be governed by the final
adjudication of such issue; and (iv) mandatory indemnification shall be paid
within 45 days of the Company's receipt of a request for indemnification
unless a determination is made that the indemnitee has not met the relevant
standards for indemnification by the Board of Directors, or if a quorum of the
directors is not obtainable, at the election of the Company, either by
independent legal counsel or a panel of arbitrators.
The Company maintains a directors' and officers' liability insurance policy
covering certain liabilities which may be incurred by directors and officers
in connection with the performance of their duties. The entire premium for
such insurance is paid by the Company.
Item 21. Exhibits and Financial Statement Schedules
(a) The following exhibits, as required by Item 601 of Regulation S-K, are
filed as part of this Registration Statement:
<TABLE>
<C> <S>
4.01* Indenture, dated as of April 30, 1999, for up to $400,000,000 10 1/2%
Senior Subordinated Notes between Building One Services Corporation,
the Subsidiary Guarantors named therein, and IBJ Whitehall Bank &
Trust Company, as Trustee.
4.02* Registration Rights Agreement, dated as of April 30, 1999, among
Building One Services Corporation, the Guarantors named therein, and
the initial purchasers, BT Alex.Brown Incorporated, Bear, Stearns &
Co., Inc., Goldman, Sachs & Co., Salomon Smith Barney Inc., Friedman,
Billings, Ramsey & Co., Inc., Jefferies & Company, Inc. and Fleet
Securities, Inc.
4.03* Form of Exchange Note.
4.04 Supplemental Indenture, dated as of July 16, 1999, for up to
$400,000,000 10 1/2% Senior Subordinated Notes among Building One
Services Corporation, the Subsidiary Guarantors named therein and IBJ
Whitehall Bank & Trust Company, as Trustee.
5.01 Opinion of F. Traynor Beck, Esquire as to the legality of the
securities being registered.
12.01* Statement regarding Computation of Ratio of Earnings to Fixed
Charges.
23.01 Consent of F. Traynor Beck, Esquire (contained in Exhibit 5.01).
23.02* Consent of PricewaterhouseCoopers LLP.
23.03* Consent of Baird, Kurtz & Dobson.
23.04* Consent of Grant Thornton.
23.05* Consent of KPMG LLP.
23.06* Consent of Barry & Moore, P.C.
23.07* Consent of Leverich, Phillips, Rasmuson & Company.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
23.08* Consent of Harbeson, Beckerleg & Fletcher.
23.09* Consent of Frazier & Deeter, LLC.
23.10* Consent of Shinners, Hucovski & Company, S.C.
24.01* Powers of Attorney (contained on signature page).
25.01* Statement of Eligibility of IBJ Whitehall Bank & Trust Company, as
Trustee, on Form T-1.
99.01 Form of Letter of Transmittal regarding the offer to exchange 10 1/2%
Senior Subordinated Notes due 2009 which have been registered under
the Securities Act for 10 1/2% Senior Subordinated Notes due 2009.
99.02 Form of Notice of Guaranteed Delivery.
99.03 Form of letter to brokers.
99.04 Form of letter to clients.
</TABLE>
- --------
* Previously filed.
Item 22. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment may be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE>
(4) That for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement 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.
(5) 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 the registration statement through the date of responding
to the request.
(6) To supply by means of post-effective amendment, Rule 424(c)
supplement or information incorporated by reference, all information
concerning a material transaction, and the company being acquired involved
therein, that was not the subject of and included in the registration
statement when it became effective.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Washington, District of
Columbia, on July 16, 1999.
Building One Services Corporation
/s/ Joseph M. Ivey
By: _________________________________
Name: Joseph M. Ivey
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of the Registrant
and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President and Chief July 16, 1999
______________________________________ Executive Officer
Joseph M. Ivey (Principal Executive
Officer) and Director
* Chairman of the Board July 16, 1999
______________________________________
Jonathan J. Ledecky
* Executive Vice President, July 16, 1999
______________________________________ Chief Financial Officer
Timothy C. Clayton and Treasurer (Principal
Financial and Accounting
Officer)
* Director July 16, 1999
______________________________________
Andrew Africk
* Director July 16, 1999
______________________________________
Mary K. Bush
* Director July 16, 1999
______________________________________
Vincent E. Eades
* Director July 16, 1999
______________________________________
Michael Gross
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director July 16, 1999
______________________________________
William P. Love, Jr.
* Director July 16, 1999
______________________________________
Brooks Newmark
* Director July 16, 1999
______________________________________
M. Jude Reyes
*/s/ F. Traynor Beck
_____________________________________
F. Traynor Beck
Attorney-in-Fact, pursuant to Powers
of Attorney previously filed as part
of this Registration Statement
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
4.01* Indenture, dated as of April 30, 1999, for up to $400,000,000 10 1/2%
Senior Subordinated Notes between Building One Services Corporation,
the Subsidiary Guarantors named therein, and IBJ Whitehall Bank & Trust
Company, as Trustee.
4.02* Registration Rights Agreement, dated as of April 30, 1999, among
Building One Services Corporation, the Guarantors named therein, and
the initial purchasers, BT Alex.Brown Incorporated, Bear, Stearns &
Co., Inc., Goldman, Sachs & Co., Salomon Smith Barney Inc., Friedman,
Billings, Ramsey & Co., Inc., Jefferies & Company, Inc. and Fleet
Securities, Inc.
4.03* Form of Exchange Note.
4.04 Supplemental Indenture, dated as of July 16, 1999, for up to
$400,000,000 10 1/2% Senior Subordinated Notes among Building One
Services Corporation, the Subsidiary Guarantors named therein and IBJ
Whitehall Bank & Trust Company, as Trustee.
5.01 Opinion of F. Traynor Beck, Esquire as to the legality of the
securities being registered.
12.01* Statement regarding Computation of Ratio of Earnings to Fixed Charges.
23.01 Consent of F. Traynor Beck, Esquire (contained in Exhibit 5.01).
23.02* Consents of PricewaterhouseCoopers LLP.
23.03* Consent of Baird, Kurtz & Dobson.
23.04* Consents of Grant Thornton.
23.05* Consent of KPMG LLP.
23.06* Consent of Barry & Moore, P.C.
23.07* Consent of Leverich, Phillips, Rasmuson & Company.
23.08* Consent of Harbeson, Beckerleg & Fletcher.
23.09* Consent of Frazier & Deeter, LLC.
23.10* Consent of Shinners, Hucovski & Company, S.C.
24.01* Powers of Attorney (contained on signature page).
25.01* Statement of Eligibility of IBJ Whitehall Bank & Trust Company, as
Trustee, on Form T-1.
99.01 Form of Letter of Transmittal regarding the offer to exchange 10 1/2%
Senior Subordinated Notes due 2009 which have been registered under the
Securities Act for 10 1/2% Senior Subordinated Notes due 2009.
99.02 Form of Notice of Guaranteed Delivery.
99.03 Form of Letter to Brokers.
99.04 Form of Letter to Clients.
</TABLE>
- --------
* Previously filed.
<PAGE>
Exhibit 4.04
================================================================================
BUILDING ONE SERVICES CORPORATION,
as Issuer,
ELECTRICAL CONTRACTING, INC.,
MOUNTAIN VIEW ELECTRIC, INC., and
the other GUARANTORS named herein,
as Guarantors
AND
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
SUPPLEMENTAL INDENTURE
Dated as of July 16, 1999
Relating to
up to $400,000,000
10 1/2% Senior Subordinated Notes
due 2009
================================================================================
<PAGE>
SUPPLEMENTAL INDENTURE
This supplemental Indenture (the "Supplemental Indenture") dated as of
July 16, 1999, among Electrical Contracting, Inc, and Mountain View
Electric, Inc. (the "New Guarantors"), companies acquired by BUILDING ONE
SERVICES CORPORATION, a Delaware corporation (the "Company"), since the date of
the Indenture (defined below), the existing subsidiary guarantors listed as
signatories hereto (the "Existing Guarantors") and IBJ Whitehall Bank & Trust
Company, a New York banking corporation, as trustee under the Indenture referred
to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Existing Guarantors have heretofore executed
and delivered to the
Trustee an indenture (the "Indenture") dated as of April
30, 1999, providing for the issuance of an aggregate principal amount of up to
$400,000,000 of 10 1/2% Senior Subordinated Notes due 2009 (the "Securities");
WHEREAS, Section 4.18 of the Indenture provides that under certain
circumstances the Company is required to cause the newly acquired subsidiaries
to execute and deliver to the Trustee a supplemental indenture pursuant to which
such subsidiaries shall unconditionally guarantee all of the Company's
obligations under the Securities on the terms and conditions set forth herein;
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantors, the Company and the Existing Guarantors mutually covenant and agree
for
the equal and ratable benefit of the holders of the Securities as follows:
1. AGREEMENT TO GUARANTEE. The New Guarantors hereby agree, jointly and
severally with all of the Existing Guarantors, to unconditionally guarantee the
Company's obligations under the Securities on the terms set forth in the
Indenture.
2. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURE PART OF INDENTURE.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all of the terms, conditions and provisions thereof shall
remain in full force and effect. This Supplemental Indenture shall form a part
of the Indenture for all purposes and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. GOVERNING LAW. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application
of the laws of another jurisdiction would be required thereby.
4. TRUSTEE MAKES NO REPRESENTATION. The recitals contained herein shall be
taken as the statements of the Company and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture.
-1-
<PAGE>
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
ELECTRICAL CONTRACTING, INC.
MOUNTAIN VIEW ELECTRIC, INC.
by
/s/ F. Traynor Beck
_____________________________
Name: F. Traynor Beck
Title: Executive Vice President
BUILDING ONE SERVICES CORPORATION
by
/s/ F. Traynor Beck
_____________________________
Name: F. Traynor Beck
Title: Executive Vice President
ADVENT ELECTRIC CO., INC.
AMERICAN AIR CO., INC.
APPEARANCE MANAGEMENT SERVICES,
INC.
BARNES IVEY MECHANICAL COMPANY,
L.L.C.
BELTLINE MECHANICAL SERVICES, INC.
BOXBERGER, INC.
BRAZOSPORT MANAGEMENT, INC.
BRICK, INC.
BUILDING ONE MECHANICAL SERVICES,
INC.
BUILDING ONE SERVICE SOLUTIONS, INC.
BUYR, INC.
CENTER SERVICES, INC.
CHAMBERS ELECTRONIC
COMMUNICATIONS, INC.
CONSOLIDATED ELECTRICAL GROUP, INC.
CRAMAR ELECTRIC, INC.
CREST INTERNATIONAL, LLC
-2-
<PAGE>
DFW MECHANICAL SERVICES, INC.
ELECTRICAL DESIGN & CONSTRUCTION,
INC.
ENGINEERING DESIGN GROUP, INC.
FLOR-SHIN, INC.
FRED CLARK ELECTRICAL CONTRACTORS,
INC.
G.S. FINANCIAL, INC.
G.S. GROUP, INC.
GAMEWELL MECHANICAL, INC.
GARFIELD-INDECON ELECTRICAL
SERVICES, INC.
G.S.I. OF CALIFORNIA, INC.
GULF STATES, INC.
HUNT ELECTRIC, INC.
IVEY MECHANICAL COMPANY, INC.
IVEY MECHANICAL SERVICES, L.L.C.
LEXINGTON/IVEY MECHANICAL COMPANY,
LLC
MCINTOSH MECHANICAL, INC.
NATIONAL NETWORK SERVICES, INC.
OIL CAPITAL ELECTRIC, INC.
OMNI MECHANICAL COMPANY
OMNI MECHANICAL SERVICES
PERIMETER MAINTENANCE CORPORATION
POTTER ELECTRIC CO., INC.
PRO WIRE SECURITY SYSTEMS, INC.
REGENCY ELECTRIC COMPANY ATLANTA
OFFICE
REGENCY ELECTRIC COMPANY
CHARLOTTE OFFICE, INC.
REGENCY ELECTRIC COMPANY JACKSONVILLE OFFICE, INC.
REGENCY ELECTRIC COMPANY MEMPHIS
OFFICE, INC.
REGENCY ELECTRIC COMPANY ORLANDO
OFFICE, INC.
REGENCY ELECTRIC COMPANY PROJECTS
GROUP, INC.
REGENCY ELECTRIC COMPANY SOUTH
FLORIDA, INC.
REGENCY ELECTRIC COMPANY, INC.
RELIABLE PAPER SERVICE COMPANY, INC.
RIVIERA ELECTRIC CONSTRUCTION CO.
RIVIERA ELECTRIC OF CALIFORNIA, INC.
ROBINSON MECHANICAL COMPANY
SANDERS BROS., INC.
SKC ELECTRIC, INC.
-3-
<PAGE>
SKCE, INC.
SPANN BUILDING MAINTENANCE
COMPANY
SPANN MANAGEMENT GROUP, INC.
TAYLOR ELECTRIC, INC.
TESS HOLDINGS, INC.
TESTRONICS, INC.
THE LEWIS COMPANIES, INC.
TOWN & COUNTRY ELECTRIC, INC.
TRI-CITY ELECTRICAL CONTRACTORS, INC.
TRI-M HOLDING CORP.
TRI-M CORPORATION
TRI-M ELECTRICAL CONSTRUCTION CORP.
TRI-M BUILDING AUTOMATION SYSTEMS
CORP.
TRI-M INFORMATION SYSTEMS CORP.
TRI-M INTEGRATED SYSTEMS SOLUTIONS
CORP.
WALKER ENGINEERING, INC.
WARREN ELECTRICAL CONSTRUCTION
CORP.
WATSON ELECTRIC CONSTRUCTION CO.
WILSON ELECTRIC COMPANY, INC.
by
/s/ F. Traynor Beck
_____________________________
Name: F. Traynor Beck
Title: Executive Vice President
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
by /s/ Terence Rawlins
__________________________________
Name:
Title:
-4-
<PAGE>
Building One Services Corporation
Page 1
Exhibit 5.01
July 16, 1999
Building One Services Corporation
800 Connecticut Avenue, N.W., Suite 1111
Washington, DC 20006
Re: Registration Statement on Form S-4 Relating to the Exchange Offer for
---------------------------------------------------------------------
10 1/2% Senior Subordinated Notes in the Aggregate Principal Amount of
-----------------------------------------------------------------------
$200,000,000
-------------
Dear Ladies and Gentlemen:
I have acted as general counsel to Building One Services Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-4, File No. 333-81737 (the "Registration
Statement"), filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the "Act"),
relating to the offer to exchange (the "Exchange Offer") $200 million aggregate
principal amount of the Company's 10 1/2% Senior Subordinated Notes (the
"Securities") guaranteed by each of the Company's directly and indirectly owned
subsidiaries named in the Indenture (defined below) or in the Supplemental
Indenture (defined below) (the "Subsidiary Guarantors") for outstanding 10 1/2%
Senior Subordinated Notes in the aggregate principal amount of $200 million
issued by the Company in a private placement on April 30, 1999 and guaranteed by
the Guarantors. The Subsidiary Guarantors have jointly and severally guaranteed
the Company's obligations under the Securities and the Indenture on a senior
subordinated basis. Except as otherwise defined herein, capitalized terms are
used as defined in the Registration Statement.
In connection herewith, I have examined originals or copies of (i) the
Registration Statement, (ii) the Indenture, dated as of April 30, 1999 (the
"Indenture"), between the Company, certain of the Subsidiary Guarantors and IBJ
Whitehall Bank & Trust Company, as trustee (the "Trustee"), (iii) the
Supplemental Indenture, dated as of July 16, 1999 (the "Supplemental
Indenture"), between the Company, the Subsidiary Guarantors and the Trustee,
(iii) the Amended and Restated Certificate of Incorporation and the Amended and
Restated Bylaws of the Company, as amended to date, and (iv) records of certain
corporate proceedings of the Company and the Subsidiary Guarantors relating to,
among other things, the Securities. In addition, I have made such other
examinations of law and fact as I considered necessary in order to form a basis
for the opinion hereinafter expressed.
<PAGE>
Building One Services Corporation
Page 2
In our examination of the aforesaid documents, I have assumed, without
independent investigation, the genuineness of all signatures, the legal capacity
of all individuals who have executed any of the documents, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as certified, photostatic, reproduced
or conformed copies and the authenticity of all such documents. In addition, in
rendering my opinions with respect to those Subsidiary Guarantors that are
incorporated in states other than Delaware and Pennsylvania, I have assumed that
the laws of the states in which the Subsidiary Guarantors are incorporated are
the same as the laws of the states of Pennsylvania or Delaware.
In rendering the opinion set forth below, I have also assumed that the (i) the
Registration Statement, and any amendments thereto, will have become effective,
(ii) all Securities will have been issued in compliance with applicable federal
and state securities laws, (iii) the Trustee is validly existing with all
requisite power and authority to enter into the Indenture and perform its
obligations thereunder, (iv) the Indenture and the Supplemental Indenture have
been duly executed and delivered by the Trustee and the Indenture, as
supplemented by the Supplemental Indenture, will have become qualified under the
Trust Indenture Act of 1939, as amended, and (v) the Securities will have been
duly executed by the Company, authenticated by the Trustee, and issued and
delivered against receipt of the consideration therefor approved by the Company,
in each case as provided in the Indenture.
Based upon and subject to the foregoing, and subject to all of the assumptions,
limitations and qualifications set forth herein, I am of the opinion that the
Securities, when issued and delivered will constitute valid and binding
obligations of the Company and that the guarantees of the Securities, once the
Securities are issued and delivered, of the Subsidiary Guarantors will be valid
and binding obligations of the Subsidiary Guarantors.
I hereby consent to the use of my name in the Registration Statement, in the
related prospectus as the same appears under the caption "Legal Matters" and in
any supplement to such prospectus, and to the use of this opinion as an exhibit
to the Registration Statement.
Very Truly Yours,
/s/ F. Traynor Beck
- -------------------------------
F. Traynor Beck
Executive Vice-President,
General Counsel and Secretary
<PAGE>
Exhibit 99.01
BUILDING ONE SERVICES CORPORATION
LETTER OF TRANSMITTAL
10 1/2% Senior Subordinated Notes due 2009
Issued on April 30, 1999
Exchange Note Cusip: 120114AC7
The exchange offer will expire at 5:00 P.M., New York City time, on August
19, 1999, unless extended (the "Expiration Date"). Tenders of outstanding
notes may be withdrawn at any time prior to 5:00 p.m. on the Expiration Date.
Exchange Agent: IBJ WHITEHALL BANK & TRUST COMPANY
By Mail: By Hand/Overnight Courier:
- -------------------------------------------------------------------------------
IBJ Whitehall Bank & Trust Company
IBJ Whitehall Bank & Trust Company One State Street
P.O. Box 84 New York, NY 10004
Bowling Green Station Attn.: Securities Processing Window,
New York, NY 10274-0084 Subcellar One, (SC-1)
Attn: Reorganization Operations
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 858-2611
For Information:
(212) 858-2103
Delivery of this Letter of Transmittal to an address other than as set forth
above does not constitute a valid delivery.
The instructions accompanying this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE NEW NOTES (THE "EXCHANGE NOTES")
FOR THEIR OUTSTANDING NOTES (THE "ORIGINAL NOTES") PURSUANT TO THE EXCHANGE
OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR ORIGINAL NOTES TO THE
EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
The undersigned acknowledges receipt of the prospectus dated July 19, 1999
of Building One Services Corporation (the "Company") and this Letter of
Transmittal, which together constitute the Company's offer to exchange $1,000
principal amount of its 10 1/2% Senior Subordinated Notes due 2009 (the
"Exchange Notes"), which have been registered under the Securities Act of
1933, as amended, pursuant to a registration statement of which the prospectus
is a part, for each $1,000 principal amount of its outstanding 10 1/2% Senior
Subordinated Notes due 2009 that were issued on April 30, 1999 (the "Original
Notes"), of which $200,000,000 principal amount is outstanding, upon the terms
and conditions set forth in the prospectus.
For each Original Note accepted for exchange and not withdrawn, the holder
of such Original Note will receive an Exchange Note that has a principal
amount equal to that of the surrendered Original Note. Interest on the
Exchange Note will accrue from the last date on which interest was paid on the
Original Notes, or if no such interest has been paid, from April 30, 1999. The
Original Notes accepted for exchange will cease to accrue interest from and
after the date of completion of the exchange offer. The Company reserves the
right, at any time or from time to time, to extend this exchange offer at its
discretion, in which event the term "Expiration
1
<PAGE>
Date" shall mean the latest time and date to which this exchange offer is
extended. The Company shall notify the exchange agent of any extension by oral
(promptly confirmed in writing) or written notice and will make a public
announcement thereof, each prior to 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date.
This Letter of Transmittal is to be used by holders if:
. the certificates that represent their Original Notes are to be physically
delivered to the exchange agent herewith by holders;
. the tender of their Original Notes is to be made by book-entry transfer
to the exchange agent's account at The Depository Trust Company ("DTC"),
pursuant to the procedures set forth in the prospectus under "Exchange
Offer--Procedures for Tendering" by any financial institution that is a
participant in DTC and whose name appears on a security position listing
as the owner of the Original Notes; or
. the tender of their Original Notes is to be made according to the
guaranteed delivery procedures set forth in the prospectus under
"Exchange Offer--Guaranteed Delivery Procedures."
Delivery of documents to DTC does not constitute delivery to the exchange
agent.
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery
may be directed to the exchange agent. See Instruction 11 herein.
HOLDERS WHO WISH TO ACCEPT THE OFFER TO EXCHANGE AND TENDER THEIR
OUTSTANDING NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE CHECKING ANY
BOXES BELOW.
2
<PAGE>
DESCRIPTION OF 10 1/2% SENIOR SUBORDINATED NOTES DUE 2009 ISSUED APRIL 30,
1999 (ORIGINAL NOTES)
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, EXACTLY AS NAME(S) APPEAR(S) ON TENDERED CERTIFICATE(S))
DESCRIPTION OF NOTES TENDERED
(See Instructions 3 and 4)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Name(s) and Address(es) of
Registered Holder(s)
(Please Fill in Exactly as
Name(s) Appear(s) on Certificate(s) Enclosed
Certificate(s)) (Attach signed list if necessary)
- --------------------------------------------------------------------------------
Aggregate
Principal Amount Principal Amount
Certificate Represented by Tendered
Number(s)* Certificate(s) (if less than all)**
-------------------------------------------------
<S> <C> <C> <C>
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Total
Amount
Tendered
- --------------------------------------------------------------------------------
</TABLE>
* Need not be completed by holders who tender Original Notes by book-entry
transfer.
** Unless otherwise indicated in the column labeled "Principal Amount
Tendered," any tendering holder of Original Notes will be deemed to have
tendered the entire principal aggregate amount represented by the column
labeled "Aggregate Principal Amount Represented by Certificate(s)."
If the space provided above is inadequate, list the certificate numbers and
principal amounts on a separate signed schedule and affix the list to this
Letter of Transmittal.
THE BOXES BELOW ARE TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY
[_CHECK]HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution ____________________________________________
DTC Participant Number ___________________________________________________
Transaction Code Number __________________________________________________
[_CHECK]HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) __________________________________________
Window Ticket Number (If Any) ____________________________________________
Date of Execution of Notice of 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 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name _____________________________________________________________________
Address __________________________________________________________________
3
<PAGE>
Ladies and Gentlemen:
Subject to the terms and conditions of the exchange offer, the undersigned
hereby tenders to Building One Services Corporation, a Delaware corporation
(the "Company"), the principal amount of Original Notes indicated above.
Subject to and effective upon the acceptance for exchange of the principal
amount of Original Notes tendered in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the
order of, the Company all right, title and interest in and to the Original
Notes tendered hereby. The undersigned hereby irrevocably constitutes and
appoints the exchange agent its agent and attorney-in-fact (with full
knowledge that the exchange agent also acts as the agent of the Company) with
respect to the tendered Original Notes with full power of substitution to:
. deliver certificates for such Original Notes to the Company, or transfer
ownership of such Original Notes on the account books maintained by DTC
and deliver all accompanying evidence of transfer and authenticity, or
upon the order of, the Company; and
. present such Original Notes for transfer on the books of the Company and
receive all benefits and otherwise exercise all rights of beneficial
ownership of such Original Notes, all in accordance with the terms and
subject to the conditions of the exchange offer.
The power of attorney granted in this paragraph shall be deemed irrevocable
and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Original 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 acquired by the
Company. The undersigned acknowledges that this exchange offer is being made
in reliance on an interpretation by the staff of the Securities and Exchange
Commission that the Exchange Notes issued in exchange for the Original Notes
pursuant to the exchange offer may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Company or its subsidiaries within the meaning of Rule 405
of the Securities Act of 1933, as amended), without compliance with the
registration and prospectus delivery provisions of the Securities Act of 1933,
as amended, provided that such Exchange Notes are acquired in the ordinary
course of such holders' business and such holders have no arrangements with
any person to participate in the distribution of such Exchange Notes. The
undersigned hereby further represents that:
. it will acquire the Exchange Notes in the ordinary course of business;
. it has no arrangement or understanding with any person to participate in
the distribution of the Exchange Notes in violation of the Securities
Act;
. it is not an affiliate of Building One Services Corporation as defined in
Rule 405 under the Securities Act or, if it is an affiliate, it will
comply with the applicable registration and prospectus delivery
requirements of the Securities Act;
. if it is not a broker-dealer, that it is not engaged, and does not intend
to engage in, the distribution of the Exchange Notes; and
. if it is a broker-dealer that will receive the Exchange Notes for its own
account in exchange for Original Notes that were acquired as a result of
market-making or other trading activities, that it will deliver a
prospectus in connection with any resale of the Exchange Notes. However,
by so acknowledging and delivering a prospectus, the undersigned will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act of 1933, as amended.
The undersigned hereby acknowledges and agrees that any broker-dealer and
any holder using the exchange offer to participate in a distribution of
Exchange Notes cannot rely on the staff of the Securities and Exchange
Commission's position set forth in certain no-action letters and must comply
with the registration and prospectus delivery requirements of the Securities
Act of 1933, as amended, in connection with a secondary resale transaction.
4
<PAGE>
Such a secondary resale transaction must also be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or Item 508, as applicable, of Regulation S-K.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the exchange agent or the Company to be necessary or
desirable to complete the assignment, transfer and purchase of the Original
Notes tendered hereby. All authority conferred or agreed to be conferred by
this Letter of Transmittal shall survive the death, incapacity or dissolution
of the undersigned and every obligation of the undersigned under this Letter
of Transmittal shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns, trustees in bankruptcy or other legal
representatives of the undersigned. This tender may be withdrawn only in
accordance with the procedures set forth under the caption "Exchange Offer--
Withdrawal of Tenders" in the prospectus.
For purposes of the exchange offer, the Company shall be deemed to have
accepted validly tendered Original Notes when, as and if the Company has given
oral or written notice thereof to the exchange agent.
If any tendered Original Notes are not accepted for exchange pursuant to the
exchange offer for any reason, certificates for any such unaccepted Original
Notes will be returned (except as noted below with respect to tenders through
DTC), without expense, to the undersigned at the address shown below or at a
different address as may be indicated under "Special Delivery Instructions" as
promptly as practicable after the Expiration Date.
The undersigned understands that tenders of Original Notes pursuant to the
procedures described under the caption "Exchange Offer--Procedures for
Tendering" in the prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the exchange offer.
Unless otherwise indicated under "Special Payment and Delivery
Instructions," the undersigned understands that the Company will issue the
certificates representing the Exchange Notes issued in exchange for the
Original Notes accepted for exchange and return any Original Notes not
tendered or not exchanged (or in either such event in the case of the Original
Notes tendered by DTC, by credit to the undersigned's account, at DTC).
Similarly, unless otherwise indicated under "Special Payment and Delivery
Instructions," the undersigned understands that the Company will send the
certificates representing the Exchange Notes issued in exchange for the
Original Notes accepted for exchange and any certificates for Original Notes
not tendered or not exchanged (and accompanying documents, as appropriate) to
the undersigned at the address shown below the undersigned's signature(s),
unless, in either event, tender is being made through DTC. In the event that
both "Special Payment Instructions" and "Special Payment and Delivery
Instructions" are completed, the undersigned understands that the Company will
issue the certificates representing the Exchange Notes issued in exchange for
the Original Notes accepted for exchange and return any Original Notes not
tendered or not exchanged in the name(s) of, and send said certificates to,
the person(s) so indicated. The undersigned recognizes that the Company has no
obligation pursuant to the "Special Payment Instructions" and "Special
Delivery Instructions" to transfer any Original Notes from the name of the
registered holder(s) thereof if the Company does not accept for exchange any
of the Original Notes so tendered.
Holders of Original Notes who wish to tender their Original Notes and:
. whose Original Notes are not immediately available;
. who cannot deliver their Original Notes, this Letter of Transmittal or
any other documents required hereby to the exchange agent prior to the
Expiration Date; or
. cannot complete the procedure for book-entry transfer prior to the
Expiration Date
may tender their Original Notes according to the guaranteed delivery
procedures set forth in the prospectus under the caption "Exchange Offer--
Guaranteed Delivery Procedures." See Instruction 1 regarding the completion of
the Letter of Transmittal printed below.
5
<PAGE>
PLEASE SIGN HERE WHETHER OR NOT OUTSTANDING NOTES
ARE BEING PHYSICALLY TENDERED HEREBY
X __________________________________________________ Date __________________
X __________________________________________________ Date __________________
Signature(s) of Registered Holder(s) or Authorized
Signatory
Area Code and Telephone Number ________________________________________________
The above lines must be signed by the registered holder(s) of Original Notes
as their name(s) appear(s) on the Original Notes or, if the Original Notes are
tendered by a participant in DTC, as such participant's name appears on a
security position listing as the owner of Original Notes, or by person(s)
authorized to become registered holder(s) by a properly completed bond power
from the registered holder(s), a copy of which must be transmitted with this
Letter of Transmittal. If Original Notes to which this Letter of Transmittal
relates are held of record by two or more joint holders, then all such holders
must sign this Letter of Transmittal. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such person must (1)
set forth his or her full title below and (2) unless waived by the Company,
submit evidence satisfactory to the Company of such person's authority to act.
See Instruction 4 regarding the completion of this Letter of Transmittal
printed below.
Name(s): ______________________________________________________________________
_______________________________________________________________________________
(Please Print)
Capacity: _____________________________________________________________________
Address: ______________________________________________________________________
(Include Zip Code)
SIGNATURE GUARANTEE BY AN ELIGIBLE INSTITUTION
(If required by Instruction 4)
_______________________________________________________________________________
(Authorized Signature)
_______________________________________________________________________________
(Title)
_______________________________________________________________________________
(Name of Firm)
Dated: ________________________________________________________________________
6
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Original Notes in a principal
amount not tendered or not accepted for exchange, or Exchange Notes issued
in exchange for Original Notes accepted for exchange, are to be issued in
the name of someone other than the undersigned, or if the Original Notes
tendered by book-entry transfer that are not accepted for exchange are to be
credited to an account maintained by DTC.
Issue certificates to:
Name(s): ____________________________________________________________________
(Please Print)
Address: ____________________________________________________________________
(Include Zip Code)
_____________________________________________________________________________
(Tax Identification or Social Security No.)
SIGNATURE
(If Special Payment Instructions are Given)
(See Instruction )
_____________________________________________________________________________
Signature(s) of Payee(s)
Dated , 1999
By signing and completing the form above, under the penalties of perjury,
I/we certify that the above tax identification or social security number(s)
is/are correct.
Note: Failure to complete and sign may result in backup withholding of 31%
of the payments due to you. See Instruction 6.
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4, 5 AND 6)
To be completed ONLY if certificates for Original Notes in a principal
amount not tendered or not accepted for exchange, or Exchange Notes issued
in exchange for Original Notes accepted for exchange, are to be sent to
someone other than the undersigned or to the undersigned at an address other
than that shown above.
Mail certificates to:
Name(s) _____________________________________________________________________
(Please Print)
Address _____________________________________________________________________
_____________________________________________________________________________
(Include Zip Code)
7
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of this Letter and Notes; Guaranteed Delivery Procedures. This
Letter of Transmittal is to be completed by holders, 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--Book-Entry Transfer" section of the prospectus. Certificates for all
physically tendered Original Notes, or transfer confirmation of, book-entry,
as the case may be, as well as a properly completed and duly executed Letter
of Transmittal (or manually signed facsimile) 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.
Original Notes tendered hereby must be in denominations of principal amount of
maturity of $1,000 and any integral multiple thereof.
Holders whose certificates for Original 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
Original Notes pursuant to the guaranteed delivery procedures set forth in the
"Exchange Offer--Guaranteed Delivery Procedures" section of the prospectus.
These procedures require that:
. such tender must be made through an Eligible Institution (as defined in
Instruction 4 below);
. prior to the Expiration Date, the exchange agent must receive from such
Eligible Institution a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and Notice of Guaranteed Delivery,
substantially in the form provided by the Company (by facsimile
transmission, mail or hand delivery), setting forth the name and address
of the holder of Original Notes and the amount of Original Notes
tendered, stating that the tender is being made thereby and guaranteeing
that within three Nasdaq Stock Market trading days after the date of
execution of the Notice of Guaranteed Delivery, the certificate for all
physically tendered Original Notes, or a transfer confirmation, book-
entry and any other documents required by this Letter of Transmittal will
be deposited by the Eligible Institution with the exchange agent; and
. the certificates for all physically tendered Original Notes, in proper
form for transfer, or transfer confirmation of, book-entry as the case
may be, and all other documents required by this Letter of Transmittal,
are received by the exchange agent within three Nasdaq Stock Market
trading days after the date of execution of the Notice of Guaranteed
Delivery.
The method of delivery of this Letter of Transmittal, the Original Notes and
all other required documents is at the election and risk of the tendering
stockholder. The method of delivery of this Letter of Transmittal, the
Original Notes and all other required documents is at the election and risk of
the tendering holders, but the delivery will be deemed made only when actually
received or confirmed by the exchange agent. If Original Notes are sent by
mail, it is suggested that the mailing be made sufficiently in advance of the
Expiration Date to permit the delivery to the exchange agent prior to 5:00
p.m., New York City time, on the Expiration Date.
See the "Exchange Offer" section in the prospectus for more information.
2. Tender by Holder. Only a holder of Original Notes may tender such
Original Notes in the exchange offer. Any beneficial holder of Original Notes
who is not the registered holder and who wishes to tender should arrange with
the registered holder to execute and deliver this Letter of Transmittal on his
or her behalf or must, prior to completing and executing this Letter of
Transmittal and delivering his or her Original Notes, either make appropriate
arrangements to register ownership of the Original Notes in such holder's name
or obtain a properly completed bond power from the registered holder.
3. Partial Tenders. Tenders of Original Notes will be accepted only in
integral multiples of $1,000. If less than the entire principal amount of any
Original Notes is tendered, the tendering holder should fill in the
8
<PAGE>
principal amount tendered in the fourth column of the box entitled
"Description of 10 1/2% Senior Subordinated Notes due 2009 issued on April 30,
1999 (Original Notes)" above. The entire principal amount of Original Notes
delivered to the exchange agent will be deemed to have been tendered unless
otherwise indicated. If the entire principal amount of all Original Notes is
not tendered, then Original Notes for the principal amount of Original Notes
not tendered and a certificate or certificates representing Exchange Notes
issued in exchange for any Original Notes accepted will be sent to the holder
at his or her registered address, unless a different address is provided in
the appropriate box on this Letter of Transmittal, promptly after the Original
Notes are accepted for exchange.
4. Signatures on This Letter of Transmittal; Powers of Attorney and
Endorsements; Guarantee of Signatures. If this Letter of Transmittal is signed
by the registered holder of the Original 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 Original Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If any tendered Original 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 of Transmittal as there are different
registrations of certificates.
When this Letter of Transmittal is signed by the registered holder or
holders of the Original Notes specified herein and tendered hereby, no
endorsements of certificates or separate powers of attorney are required. If,
however, the Exchange Notes are to be issued, or any Original Notes that were
not tendered in the exchange offer are to be reissued, to a person other than
the registered holder, then endorsements of any certificates transmitted
hereby or separate powers of attorney are required. Signatures on such
certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder or holders of any certificate(s) specified herein, such
certificate(s) must be endorsed or accompanied by appropriate powers of
attorney, in either case signed exactly as the name or names on the registered
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 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 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 Original Notes or signatures on powers of
attorney required by this Instruction 4 must be guaranteed by a firm which is
a participant in a recognized signature guarantee medallion program ("Eligible
Institutions").
Signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution unless the Original Notes are tendered:
. by a registered holder of Original 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 Original Notes) who has not completed the box entitled
"Special Issuance Instructions" or "Special Delivery Instructions" on
this Letter of Transmittal, or
. for the account of an Eligible Institution.
5. Special Payment and Delivery Instructions. Tendering holders should
indicate, in the applicable box or boxes, the name and address to which
Exchange Notes or substitute Original Notes for principal amounts not
9
<PAGE>
tendered or not accepted for exchange are to be issued or sent, if different
from the name and address of the person signing this Letter of Transmittal (or
in the case of tender of Original Notes through DTC, if different from DTC).
In the case of issuance in a different name, the taxpayer identification or
social security number of the person named must also be indicated. Noteholders
tendering Original Notes by book-entry transfer may request that Original
Notes not exchanged be credited to such account maintained at the Book-Entry
Transfer Facility as such noteholder may designate hereon. If no such
instructions are given, such Original Notes not exchanged will be returned to
the name and address of the person signing this Letter of Transmittal.
6. Tax Identification Number. Federal income tax law requires that a holder
whose offered Original Notes are accepted for exchange must provide the
Company (as payer) with his, her or its correct taxpayer identification number
("TIN"), which, in the case of an exchanging holder who is an individual, is
his or her social security number. If the Company is not provided with the
correct TIN or an adequate basis for exemption, such holder may be subject to
a $50 penalty imposed by the Internal Revenue Service (the "IRS"), and
payments made with respect to Original Notes purchased pursuant to the
exchange offer may be subject to backup withholding at a 31% rate. If
withholding results in an overpayment of taxes, a refund may be obtained.
Exempt holders (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9."
To prevent backup withholding, each exchanging holder must complete the
Substitute Form W-9 enclosed herewith.
In order to satisfy the exchange agent that a foreign individual qualifies
as an exempt recipient, such holder must submit a statement signed under
penalty of perjury attesting to such exempt status. Such statements may be
obtained from the exchange agent.
If the Original Notes are in more than one name or are not in the name of
the actual owner, consult the Substitute Form W-9 for information on which TIN
to report. If you do not provide your TIN to the Company within 60 days,
backup withholding will begin and continue until you furnish your TIN to the
Company.
7. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the exchange of Original Notes pursuant to the exchange offer.
If, however, certificates representing Exchange Notes or Original Notes for
principal amounts not tendered or accepted for exchange are to be delivered
to, or are to be registered or issued in the name of, any person other than
the registered holder of the Original Notes tendered hereby, or if tendered
Original 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 exchange of Original Notes pursuant to the exchange
offer, then the amount of any such transfer taxes (whether imposed on the
registered holder or on 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 directly to such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Original Notes listed in this Letter
of Transmittal.
8. Waiver of Conditions. The Company reserves the absolute right to amend,
waive or modify specified conditions in the exchange offer in the case of any
Original Notes tendered.
9. No Conditional Transfers. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Original Notes,
by execution of this Letter of Transmittal, shall waive any right to receive
notice of the acceptance of their Original Notes for exchange.
Neither the Company, the exchange agent nor any other person is obligated to
give notice of any defect or irregularity with respect to any tender of
Original Notes nor shall any of them incur any liability for failure to give
any such notice.
10
<PAGE>
10. Mutilated, Lost, Stolen or Destroyed Original Notes. Any tendering
holder whose Original Notes have been mutilated, lost, stolen or destroyed
should contact the exchange agent at the address indicated herein for further
instructions.
11. Requests for Assistance or Additional Copies. Questions and requests for
assistance for additional copies of the prospectus, this Letter of Transmittal
and the Notice of Guaranteed Delivery may be directed to the exchange agent at
the address specified in the prospectus.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY. IT MAY NOT BE APPLICABLE TO NON-U.S. NOTEHOLDERS. ALL
NOTEHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISERS AS TO THE SPECIFIC TAX
CONSEQUENCES TO THEM OF THE OFFER.
SUBSTITUTE FORM W-9 OR FORM W-8
Under the U.S. federal income tax laws, the Depositary may be required to
withhold 31% of the amount of any payment made to certain holders pursuant to
the exchange offer. In order to avoid such backup withholding, each tendering
U.S. noteholder must provide the Depositary with such holder's correct TIN by
completing the Substitute Form W-9 set forth below. In general, if a holder is
an individual, the TIN is the Social Security number of such individual. If
the Depositary is not provided with the correct TIN, the holder may be subject
to a penalty imposed by the Internal Revenue Service. Certain holders
(including, among others, all corporations) are not subject to these backup
withholding and reporting requirements, but should nonetheless complete a
Substitute Form W-9 to avoid possible erroneous backup withholding. For
further information regarding backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a TIN if you do
not have one and how to complete the Substitute Form W-9 if Shares are held in
more than one name), consult the enclosed Guidelines for Certification of
Taxpayer Identification Number.
In order for a non-U.S. holder to avoid 31% backup withholding, such holder
must submit a statement to the Depositary signed under penalties of perjury
attesting as to its non-U.S. status. Form W-8 and instructions for such
statement are enclosed for such stockholders.
11
<PAGE>
CONSEQUENCES OF FAILURE TO FILE SUBSTITUTE FORM W-9 OR FORM W-8
Failure to complete Substitute Form W-9 or Form W-8 will not, by itself,
cause the Original Notes to be deemed invalidly tendered but may require the
Depositary to withhold 31% of the amount of any payments made pursuant to the
exchange offer. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, the noteholder may claim a refund from the
Internal Revenue Service.
Part 1--PLEASE PROVIDE YOUR TIN
SUBSTITUTE IN THE BOX AT RIGHT AND CERTIFY
BY SIGNING AND DATING BELOW
Form W-9 ---------------
Social
Security
Number
Department of ------------------------------------------------------
the Treasury Part 2--Check the box if you are NOT subject to
Internal backup withholding under the provisions of section
Revenue Service 3406(a)(1)(C) of the Internal Revenue Code because
(1) you have not been notified that you are subject
to backup withholding as a result of failure to
report all interest or dividends or (2) the
Internal Revenue Service has notified you that you
are no longer subject to backup withholding.
Or ____________
Employer ID
Number
Payer's Request for
Taxpayer
Identification Number
(TIN)
Part 3
Awaiting TIN
------------------------------------------------------
CERTIFICATION: UNDER THE
PENALTIES OF PERJURY, I CERTIFY
THAT THE INFORMATION PROVIDED ON
THIS FORM IS TRUE, CORRECT, AND
COMPLETE.
Signature _______ Date ___________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE
REVIEW THE "GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER"
FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL
SOON APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER.
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 to the
payer, 31% of all reportable payments due to me pursuant to the Offer will be
withheld until I provide a Taxpayer Identification Number to the payer and
that, if I do not provide my Taxpayer Identification Number within 60 days,
such retained amounts shall be remitted to the IRS as backup withholding.
Signature: ____________________________
Date: _________________________________
12
<PAGE>
Exhibit 99.02
NOTICE OF GUARANTEED DELIVERY
FOR
10 1/2% SENIOR SUBORDINATED NOTES DUE 2009
ISSUED ON APRIL 30, 1999
OF
BUILDING ONE SERVICES CORPORATION
Exchange Note Cusip: 120114AC7
As set forth in the prospectus dated July 19, 1999, of Building One Services
Corporation (the "Company") and in the accompanying Letter of Transmittal and
instructions thereto, this form or a substantially equivalent form must be
used to accept the Company's offer to exchange all of its outstanding 10 1/2%
Senior Subordinated Notes due 2009 that were issued on April 30, 1999 (the
"Original Notes") for its 10 1/2% Senior Subordinated Notes due 2009 which
have been registered under the Securities Act of 1933, as amended, if:
. certificates for the Original Notes are not immediately available; or
. if the Original Notes, the Letter of Transmittal or any documents
required thereby cannot be delivered to IBJ Whitehall Bank & Trust
Company, the exchange agent, prior to 5:00 p.m. on the expiration date of
the exchange offer; or
. the procedure for book-entry transfer cannot be completed, prior to 5:00
p.m., New York City time, on the expiration date.
This form may be delivered by an eligible institution (as defined in the
prospectus) by hand or transmitted by facsimile transmission, overnight
courier or mail to the exchange agent as set forth below.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON AUGUST
19, 1999, UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF
OUTSTANDING NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE
BUSINESS DAY PRIOR TO THE EXPIRATION DATE.
Exchange Agent:
IBJ WHITEHALL BANK & TRUST COMPANY
By Mail: By Hand/Overnight Courier:
IBJ Whitehall Bank & Trust Company IBJ Whitehall Bank & Trust Company
P.O. Box 84 One State Street
Bowling Green Station New York, NY 10004
New York, NY 10274-0084 Attn.: Securities Processing Window,
Attn: Reorganization Operations Subcellar One, (SC-1)
By Facsimile Transmission:
(for Eligible Institutions Only)
(212) 858-2611
For Information:
(212) 858-2103
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA FACSIMILE, OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE VALID
DELIVERY. ORIGINALS OF ALL DOCUMENTS SENT BY FACSIMILE SHOULD BE
SENT PROMPTLY BY REGISTERED OR CERTIFIED MAIL, BY HAND OR BY
OVERNIGHT DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON THE
LETTER OF TRANSMITTAL TO BE USED TO TENDER ORIGINAL NOTES 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 LETTER
OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Building One Services Corporation, a
Delaware corporation (the "Company"), upon the terms and subject to the
conditions set forth in the prospectus dated July 19, 1999 and the related
Letter of Transmittal (which together constitute the Company's exchange
offer), receipt of which is hereby acknowledged, Original Notes pursuant to
the guaranteed delivery procedures set forth in Instruction 1 of the Letter of
Transmittal.
The undersigned understands that tenders of Original Notes will be accepted
only in principal amounts equal to $1,000 or integral multiples thereof. The
undersigned understands that tenders of Original Notes pursuant to the
exchange offer may be withdrawn only in accordance with the procedures
described under the caption "Exchange Offer--Withdrawal of Tenders" in the
prospectus.
All authority herein conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death, incapacity or dissolution of the
undersigned and every obligation of the undersigned under this Notice of
Guaranteed Delivery shall be binding upon the heirs, personal representatives,
executors, administrators, successors, assigns, trustees in bankruptcy and
other legal representatives of the undersigned.
NOTE: SIGNATURE MUST BE PROVIDED WHERE INDICATED BELOW.
Certificate No(s). for Original
Notes (if available):
_____________________________________
_____________________________________
Address:
_____________________________________
Principal Amount of Original Notes:
_____________________________________
Area Code and Telephone Number:
_____________________________________
Name(s) of Record Holder(s):
_____________________________________
_____________________________________
_____________________________________
Signature(s):
_____________________________________
If Original Notes will be delivered
by book-entry transfer at The Dated: ______________________________
Depository Trust Company, please
check box: [_]
DTC Participant Number: _____________
This Notice of Guaranteed Delivery must be signed by the registered
holder(s) of Original Notes exactly as its (their) name(s) appear on
certificates for Original Notes or on a security position listing as the owner
of the Original Notes, or by person(s) authorized to become registered
holder(s) by endorsements and documents transmitted with this Notice of
Guaranteed Delivery. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must provide the following information:
PLEASE PRINT NAME(S) AND ADDRESS(ES)
NAME(S): ____________________________________________________________________
____________________________________________________________________
CAPACITY: ____________________________________________________________________
ADDRESS(ES):
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
<PAGE>
GUARANTEE
(Not to be Used for Signature Guarantee)
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 or correspondent in the United States
or an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange of 1934, as amended, hereby:
. represents that the above named person(s) "own(s)" the Original Notes
tendered hereby within the meaning of Rule 14e-4 under the Securities
Exchange Act of 1934, as amended;
. represents that the tender of such Original Notes complies with Rule 14e-
4 under the Securities Exchange Act of 1934, as amended; and
. guarantees that delivery to the exchange agent of certificates for the
Original Notes tendered hereby, in proper form for transfer (or
confirmation of the book-entry transfer of such Original Notes into the
exchange agent's account at The Depository Trust Company, pursuant to the
procedures for book-entry transfer set forth in the prospectus), with
delivery of a properly completed and duly executed Letter of Transmittal
(or manually signed facsimile thereof) with any required signatures and
any other required documents, will be received by the exchange agent at
one of its addresses set forth above within three business days after the
Expiration Date.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER OF TRANSMITTAL
AND OUTSTANDING NOTES TENDERED HEREBY TO THE EXCHANGE AGENT WITHIN THE TIME
PERIOD SET FORTH AND THAT FAILURE TO DO SO COULD RESULT IN FINANCIAL LOSS TO
THE UNDERSIGNED.
_____________________________________ _____________________________________
Name of Firm: (Please Print)
Authorized Signature:
_____________________________________ _____________________________________
Address: (Include Zip Code)
Name:
_____________________________________ _____________________________________
(Area Code and Telephone Number)
Title:
Dated: ______________________ , 1999
NOTE: DO NOT SEND OUTSTANDING NOTES WITH THIS FORM. OUTSTANDING NOTES
SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL SO THAT THEY ARE
RECEIVED BY THE EXCHANGE AGENT WITHIN THREE NASDAQ STOCK MARKET
TRADING DAYS AFTER THE EXPIRATION DATE.
<PAGE>
Exhibit 99.03
BUILDING ONE SERVICES CORPORATION
Offer to Exchange
July 20, 1999
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Building One Services Corporation is offering, upon the terms and conditions
set forth in the prospectus dated July 19, 1999, and the enclosed letter of
transmittal, to exchange up to $200,000,000 of its outstanding 10 1/2% Senior
Subordinated Notes due 2009 which have not been registered under the
Securities Act, the "original notes," for an equal principal amount of 10 1/2%
Senior Subordinated Notes due 2009 which have been so registered, the
"exchange notes." The exchange offer is being made in order to satisfy certain
obligations of Building One Services Corporation contained in the registration
rights agreement dated April 30, 1999 by and among Building One Services
Corporation and the other signatories thereto.
We are requesting that you contact you clients for whom your hold original
notes and inform them of the exchange offer. For your information and for
forwarding to your clients for whom you hold original notes registered in your
name or in the name of your nominee, or who hold original notes registered in
their own names, we are enclosing the following documents:
1)the prospectus;
2) the letter of transmittal, including guidelines of the Internal Revenue
Service for Certification of Taxpayer Identification Number on
Substitute Form W-9, for your use and for the information of your
clients;
3) a notice of guaranteed delivery to be used to accept the exchange offer
if the procedures for book-entry transfer cannot be completed on a
timely basis, or if certificates for original notes are not immediately
available or time will not permit all required documents to reach the
exchange agent prior to the time the exchange offer expires;
4) a form of letter which may be sent to your clients for whose accounts
you hold original notes registered in your name or in the name of your
nominee, with space provided for obtaining such clients' instructions
with regard to the exchange offer; and
5)a return envelope addressed to IBJ Whitehall Bank & Trust Company, the
exchange agent.
Your prompt action is requested. The exchange offer will expire at 5:00
p.m., New York City time, on August 19, 1999, unless we extend the offer
beyond that date. You may withdraw original notes that have been tendered
pursuant to the exchange offer at any time before the exchange offer expires.
To participate in the exchange offer, you should carefully read and follow
the instructions set forth in the letter of transmittal and the prospectus.
If the holders of the original notes wish to tender, but it is impracticable
for them to comply with the book-entry transfer procedures on a timely basis
or to forward their certificates for original notes prior to the expiration of
the exchange offer, they may tender the original notes by following the
guaranteed delivery procedures described in the prospectus under "Exchange
Offer -- Guaranteed Delivery Procedures."
<PAGE>
Building One Services Corporation will not pay any fees or commissions to
brokers, dealers or other persons for soliciting exchanges of original notes
pursuant to the exchange offer. Building One Services Corporation will,
however, upon request, reimburse you for customary clerical and mailing
expenses incurred by you in forwarding any of the enclosed materials to your
clients. Building One Services Corporation will pay any stock transfer taxes
payable on the transfer of original notes to it, except as otherwise provided
in Instruction 7 of the letter of transmittal.
You may direct any questions and requests for assistance with respect to the
exchange offer or for additional copies of the prospectus, letter of
transmittal and other enclosed materials to the exchange agent at its address
and telephone number set forth on the front of the letter of transmittal.
BUILDING ONE SERVICES CORPORATION
2
<PAGE>
Exhibit 99.04
BUILDING ONE SERVICES CORPORATION
Offer to Exchange
To Our Clients: July 20, 1999
We are enclosing for your consideration a prospectus dated July 19, 1999 and
letter of transmittal relating to the offer by Building One Services
Corporation to exchange up to $200,000,000 of its 10 1/2% Senior Subordinated
Notes due 2009 which have not been registered under the Securities Act, the
"original notes," for an equal principal amount of 10 1/2% Senior Subordinated
Notes due 2009 which have been so registered, the "exchange notes." The
exchange offer is being made upon the terms and subject to the conditions set
forth in the prospectus and the letter of transmittal. The exchange offer is
being made in order to satisfy certain obligations of Building One Services
Corporation contained in the registration rights agreement dated as of April
30, 1999 by and among Building One Services Corporation and the other
signatories to the agreement.
We are forwarding these materials to you as the beneficial owner of notes
held by us for your account or benefit but not registered in your name. An
exchange of your original notes may only be completed by us as the holder of
record and pursuant to your instructions. The letter of transmittal is
furnished to you for your information only. You may not use the letter of
transmittal to exchange original notes that we hold for your account or
benefit.
Accordingly, we request that you provide instructions as to whether you wish
us to exchange any or all of the original notes held by us for your account or
benefit pursuant to the terms and conditions set forth in the prospectus and
the letter of transmittal. Your instructions should be forwarded to us as
promptly as possible in order to permit us to tender the original notes on
your behalf in accordance with the provisions of the exchange offer.
We direct your attention to the following:
1. The exchange offer is for the exchange of $1,000 principal amount of
original notes of which $200,000,000 aggregate principal amount of original
notes was outstanding as of July 19, 1999 for each $1,000 principal amount of
exchange notes. The terms of the exchange notes are identical in all material
respects to the terms of the original notes, except for certain transfer
restrictions and registration and other rights relating to the exchange of the
original notes for exchange notes.
2. The exchange offer is subject to certain conditions. See "Exchange Offer
- -- Conditions of the Exchange Offer."
3. The exchange offer and withdrawal rights will expire at 5:00 p.m., New
York City time, on August 19, 1999, unless Building One Services Corporation
extends the offer beyond that date. Any original notes tendered pursuant to
the exchange offer may be withdrawn at any time before the exchange offer
expires.
4. Any transfer taxes incident to the transfer of the original notes from
the tendering holder to Building One Services Corporation will be paid by
Building One Services Corporation, except as otherwise provided in the
prospectus and the letter of transmittal.
If you wish us to tender your original notes, please so instruct us by
completing, executing and returning to us the instruction included with this
letter. An envelope to return your instructions to us is enclosed.
<PAGE>
None of the original notes held by us for your account will be tendered
unless we receive written instructions from you to do so. Unless a specific
contrary instruction is given in the space provided, your signature or
signatures on the instructions shall constitute an instruction to us to tender
all of the original notes held by us for your account.
Nothing contained in this letter or in the enclosed documents shall
constitute you or any other person as an agent of Building One Services
Corporation, the exchange agent, or any affiliate of either of them, or
authorize you or any other person to make any statements or use any documents
on behalf of any of them in connection with the exchange offer other than the
enclosed documents and the statements contained therein.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
We acknowledge receipt of your letter and the material accompanying the
letter relating to the exchange offer being made by Building One Services
Corporation with respect to its 10 1/2% Senior Subordinated Notes due 2009.
This will instruct you as to the action to be taken by you relating to the
exchange offer with respect to the original notes held by you for our account.
The aggregate face amount of the original notes held by you for our account
is $ of the 10 1/2% Senior Subordinated Notes due 2009.
With respect to the exchange offer, we instruct you (check the appropriate
box):
[ ] To TENDER the following original notes held by you for our account:
$ of the 10 1/2% Senior Subordinated Notes due 2009.
* You should note that the minimum permitted tender is $1,000 in principal
amount of original notes and that all tenders must be in integral multiples of
$1,000 of principal amount.
[ ] NOT to TENDER any original notes held by you for our account.
If we instruct you to tender the original notes held by you for our account,
it is understood that you are authorized:
(1) to make on our behalf the representations and warranties contained in the
letter of transmittal that are to be made with respect to us as a
beneficial owner of the original notes, it being understood and agreed
that by our signature below we are making the same representations to you;
(2) to make such agreements, representations and warranties on our behalf as
are set forth in the letter of transmittal; and
(3) to take such other action as may be necessary under the prospectus or the
letter of transmittal to effect the valid tender of such original notes.
Unless a specific contrary instruction is given in the space provided, our
signature below shall constitute an instruction to you to tender all of the
original notes held by you for our account.
SIGN HERE
Name of Beneficial Owner(s):___________________________________________________
Signature(s):__________________________________________________________________
Name(s) (Please Print):________________________________________________________
Address:_______________________________________________________________________
_______________________________________________________________________________
Area Code and Telephone Number:________________________________________________
Taxpayer Identification or Social Security Number:_____________________________
Date:__________________________________________________________________________
3
