As filed with the Securities and Exchange Commission on November 6, 1998
Registration No. 333-_____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DYCOM INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
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Florida 59-1277135
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
(561) 627-7171
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
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Thomas R. Pledger
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
(561) 627-7171
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Mark Kessel, Esquire
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
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Approximate date of commencement of proposed sale to public: as soon
as practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered per Share (1) Offering Price(1) Registration Fee
- ------------------------------ -------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $0.33 1/3 par 900,000 shares $38.281 $34,452,900 $9,577.91
value.........
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee based
on the average of the high and low trading prices for the Common Stock on the
New York Stock Exchange on November 4, 1998.
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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, as amended, or until the registration statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject to Completion, dated November 6, 1998
900,000 Shares
DYCOM INDUSTRIES, INC.
{LOGO}
COMMON STOCK
Certain of our stockholders may offer and sell from time to time an
aggregate of up to 900,000 shares of common stock.
The selling stockholders may offer their shares through public or private
transactions, on or off the New York Stock Exchange, at prevailing market prices
or at privately negotiated prices.
The selling stockholders obtained their shares of common stock on April 6,
1998 in connection with our acquisition of Cable Com, Inc. and Installation
Technicians, Inc.
Our common stock is listed on the New York Stock Exchange under the symbol
"DY." On November 4, 1998, the closing price of the common stock on the New
York Stock Exchange was $38 14/16 per share.
INVESTING IN THE SHARES OF COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED
IN THE "RISK FACTORS" SECTION BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these shares of common stock or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
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The date of this prospectus is , 1998.
<PAGE>
TABLE OF CONTENTS
Page
Forward-Looking Statements...............................................1
Risk Factors.............................................................2
The Company..............................................................5
Use of Proceeds..........................................................6
Selling Stockholders.....................................................6
Plan of Distribution.....................................................7
Description of Capital Stock ............................................8
Legal Matters...........................................................10
Experts.................................................................10
Where You Can Find More Information.....................................10
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements, including
statements regarding, among other items:
o the effects of recent legislation on the telecommunications
industry,
o the trends favoring outsourcing of telecommunications engineering,
construction and maintenance services,
o our objective to grow through strategic acquisitions,
o our internal growth strategy,
o our ability to realize cost savings upon the completion of future
acquisitions,
o our ability to expand and diversify our customer base,
o our Year 2000 compliance, and
o trends in our future operating performance.
We have based these forward-looking statements largely on our
expectations. Forward-looking statements are subject to a number of risks and
uncertainties, certain of which are beyond our control. Actual results could
differ materially from those anticipated as a result of the factors described in
"Risk Factors."
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise. In light of these risks and uncertainties, the
forward-looking events and circumstances discussed in this prospectus might not
transpire.
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<PAGE>
RISK FACTORS
Investing in the common stock will provide you with an equity
ownership interest in Dycom. The value of your investment may be subject to
risks inherent in our business. Such risks may materially and adversely affect
our business, financial condition or results of operations. In such case, the
trading price of the common stock could decline, and you could lose all or part
of your investment. You should carefully consider the following factors as well
as other information contained in this prospectus before deciding to invest in
the common stock.
Fluctuations in Quarterly Operating Results
We have experienced and expect to continue to experience quarterly
variations in revenues and net income as a result of many factors, including:
o the timing and volume of customers' construction and maintenance
projects,
o budgetary spending patterns of customers,
o the commencement or termination of master service agreements and
long-term agreements,
o costs incurred to support growth internally or through
acquisitions,
o fluctuations in operating results caused by acquisitions,
o changes in our mix of customers, contracts and business activities,
and
o fluctuations in insurance expense accruals due to changes in claims
experience and actuarial assumptions.
Revenues and net income in our second quarter and, occasionally, our
third quarter have in the past been, and may in the future be, adversely
affected by weather conditions and year-end budgetary spending patterns of our
customers.
Substantial Reliance on Key Customers
Our customer base is highly concentrated. Our top five customers in
fiscal 1996, 1997 and 1998 accounted in the aggregate for approximately 68%, 63%
and 65%, respectively, of our total contract revenues. During fiscal 1998,
approximately 24 % of our total contract revenues were derived from Comcast
Cable Communications, Inc., 22% from BellSouth Telecommunications, Inc. and 7%
from GTE Corporation. We believe that a substantial portion of our contract
revenues and operating income will continue to be derived from a concentrated
group of key customers. The loss of any key customer, if not replaced, could
have a material adverse effect on our business.
Nature of Master Service Agreements
We derive a substantial portion of revenues pursuant to multi-year
master service agreements. We are currently a party to 38 master service
agreements, including 26 such agreements with BellSouth Telecommunications,
Inc., GTE Corporation, and Sprint Corporation, collectively. Under the terms of
these agreements, our customers can typically terminate the agreement on 90
days' prior written notice. The termination of any such agreements or our
failure to renew master service agreements with our customers could have a
material adverse effect on our business.
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<PAGE>
Uncertainties Relating to Backlog
Our backlog is comprised of the uncompleted portion of services to be
performed under job-specific agreements and the estimated value of future
services that we expect to provide our customers under master service
agreements. Our master service agreements are generally exclusive requirements
contracts with certain exceptions, including the customer's option to perform
the services with its own regularly employed personnel. Accordingly, there can
be no assurance as to our customers' requirements during a particular period or
that our estimates of such requirements, including those used to formulate
backlog, at any point in time are accurate.
Risks Associated with Acquisitions
As part of our growth strategy, we may acquire companies that expand,
complement or diversify our business. We cannot assure you that we will be able
to identify attractive acquisition candidates, enter into acceptable acquisition
agreements or close any such transactions. Failure to achieve our acquisition
strategy could materially and adversely affect our ability to sustain growth and
maintain our competitive position. In addition, increased competition for
acquisition candidates could increase the cost of making acquisitions and reduce
the number of attractive companies to be acquired. Although we maintain a
decentralized operating structure, we may encounter difficulties in integrating
acquired companies or their management teams. We may also encounter difficulties
in retaining key personnel or customers. In addition, acquisitions may have
adverse effects on our operating results caused by amortization of acquired
intangible assets or unanticipated liabilities or contingencies.
In the past, we have experienced difficulties in integrating and
managing certain acquisitions. In fiscal 1993 and fiscal 1994, we wrote off
$24.3 million and $1.4 million, respectively, of intangible assets, including
goodwill, in connection with four acquisitions, contributing to substantial net
losses in those years. For several years through and including fiscal, 1994 we
were involved in litigation with the management team of two acquired operating
subsidiaries, related shareholder litigation and a governmental investigation
which had a material adverse effect on our business. Although we have made
efforts to improve our acquisition due diligence process and our supervision of
acquired companies, we may continue to experience difficulties in the future
with acquired companies.
We may be required to incur debt or issue equity to pay for any future
acquisitions, and these sources of financing may not be available to us on
favorable terms. In addition, if we use common stock to pay for future
acquisitions, the value of your common stock may become diluted. If we cannot
use common stock or borrow sufficient funds to pay for future acquisitions, our
growth strategy could be limited.
Competition
The telecommunications services industry is highly competitive and we
compete with other companies in most of the markets in which we operate. Some of
our competitors may have greater financial, technical and marketing resources
than we do. A significant portion of our revenues are currently derived from
master service agreements and price is often an important factor in the award of
such agreements. Accordingly, we could be outbid by our competitors in an effort
to procure such business. Despite the current trend toward outsourcing, we may
also face competition from existing or prospective customers who employ in-house
personnel to perform some of the same types of services as we provide. In
addition, there are relatively few, if any, barriers to entry into the markets
in which we operate and, as a result, any organization that has adequate
financial resources and access to technical expertise may become one of our
competitors.
Risks Associated with the Telecommunications Industry
Certain factors related to the telecommunications industry may affect
the demand for the services which we provide. Developments which may reduce such
demand include:
o changes in telecommunications regulation,
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<PAGE>
o disappointing public demand for Internet access and other
interactive multimedia services,
o decreases in the preference toward outsourcing telecommunications
engineering, construction and maintenance services,
o inability by telecommunications providers to raise capital
necessary to develop telecommunications networks,
o displacement of wireline telecommunications systems by other
technologies such as wireless technologies, and
o improvements in technology, which allow telecommunications
providers to significantly improve their networks without
physically upgrading them.
Year 2000 Technology Risks
Year 2000 technology risks refer to the potential harm resulting from
computer programs that identify dates by the last two digits of the year rather
than using the full four digits. As such, dates as of January 1, 2000 could be
misidentified and such programs could fail. We have reviewed our computer
systems to identify those areas that could be adversely affected by Year 2000
software failures. We have converted approximately 85% of our information
systems to be Year 2000 compliant. We have incurred approximately $1.0 million
through July 31, 1998 and approximately $0.5 million will be incurred in fiscal
1999 to complete the information system conversions. Although we expect that any
additional expenditures that may be required for the Year 2000 conversions will
not be material, there can be no assurance in this regard. Additionally, we
believe that the Year 2000 problem could have a negative impact on certain of
our customers and other entities with which we transact business, which may have
a material adverse effect on our business.
Risks Associated with Self-Insurance
We are primarily self-insured, up to a limited amount, for automobile,
general liability, workers' compensation and employee group health claims. A
liability for unpaid claims and associated expenses, including incurred but not
reported losses, is actuarially determined and reflected in our consolidated
balance sheet as an accrued liability. The determination of such claims and
expenses and the extent of the accrued liability are continually reviewed and
updated. If we were to experience insurance claims or costs above our estimates
and were unable to offset such increases with earnings, our business could be
materially and adversely affected.
Dependence on Key Personnel
We are highly dependent upon the continued services and experience of
our senior management team, including Thomas R. Pledger, our Chairman and Chief
Executive Officer, Steven Nielsen, our President and Chief Operating Officer,
and one or more managers of key operating subsidiaries. The loss of the services
of these individuals or other members of our senior management could have a
material adverse effect on our business.
Volatility of Stock Price
The market price for our common stock could fluctuate due to various
factors. These factors include:
o announcements of fluctuations in our operating results or one of
our competitors' operating results,
o market conditions for telecommunications or telecommunications
services company stocks in general,
o changes in recommendations or earnings estimates by securities
analysts,
o announcements of new contracts or customers by us or our
competitors, and
o timing and announcement of acquisitions by us or our competitors.
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<PAGE>
In addition, the stock market has experienced significant price and
volume fluctuations in recent years that have been unrelated or disproportionate
to the operating performance of companies. These broad fluctuations may
adversely affect the market price of our common stock.
Potential for Adverse Effect on Stock Price from Shares Eligible for Future Sale
Future sales of substantial amounts of our common stock in the public
market, including the shares covered by this prospectus, or the perception that
such sales could occur, could adversely affect the market price of our common
stock. As of October 31, 1998, we had outstanding 14,730,626 shares of common
stock, plus 563,246 shares of common stock reserved for issuance upon exercise
of outstanding options, including 147,761 options which are currently
exercisable. Substantially all of the outstanding shares of our common stock are
either freely salable or salable subject to certain volume and manner of sale
restrictions pursuant to Rule 144 of the Securities Act of 1933.
In connection with the acquisition of Communications Construction
Group, Inc., Cable Com Inc. and Installation Technicians, Inc., we issued an
aggregate of 3,853,242 shares of common stock to their stockholders. As of
October 31, 1998, 2,181,007 of these shares were still available for future sale
by such holders. Holders who received these shares hold their shares subject to
the limitations of Rule 144. We have granted these holders certain registration
rights. Former stockholders of Cable Com Inc. and Installation Technicians, Inc.
have the right to have their shares of Dycom common stock included in certain
registration statements covering the sale of securities by Dycom or the sale of
common stock by selling stockholders. The shares of common stock covered by this
prospectus were among the shares issued in connection with the acquisitions of
Cable Com Inc. and Installation Technicians, Inc.
Anti-takeover Provisions
Our articles of incorporation and by-laws contain provisions which may
deter, discourage or make more difficult a takeover or change of control of
Dycom by another corporation. These anti-takeover provisions include:
o the authority of our board of directors to issue up to
1,000,000 shares of preferred stock without stockholder
approval on such terms and with such rights as our board of
directors may determine, and
o the requirement of a classified board of directors serving
staggered three-year terms.
We have also adopted a shareholder rights plan and have executed
change of control agreements with key officers, which may make it more difficult
to effect a change in control of Dycom and replace incumbent management. Lastly,
we are subject to certain anti-takeover provisions of the Florida Business
Corporation Act. Theses anti-takeover provisions could discourage or prevent a
change of control even if such change of control would be beneficial to
stockholders and could adversely affect the market price of our common stock.
THE COMPANY
We are a leading provider of engineering, construction and maintenance
services to telecommunications providers throughout the United States. Our
comprehensive range of telecommunications infrastructure services include the
engineering, placement and maintenance of aerial, underground, and buried
fiber-optic, coaxial and copper cable systems owned by local and long distance
communications carriers, competitive local exchange carriers, and cable
television multiple system operators. Additionally, we provide similar services
related to the installation of integrated voice, data, and video local and wide
area networks within office buildings and similar structures. We also perform
underground utility locating and electric utility contracting services.
Our executive offices are located at 4440 PGA Boulevard, Suite 600,
Palm Beach Gardens, Florida 33410. Our telephone number is (561) 627-7171. We
maintain a website at http://www.dycomind.com.
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<PAGE>
USE OF PROCEEDS
All of the net proceeds from the sale of the common stock of Dycom
covered by this prospectus will go to the stockholders who offer and sell their
shares. Accordingly, we will not receive any of the proceeds from the sales of
the common stock.
SELLING STOCKHOLDERS
Under two registration rights agreements, each dated April 6, 1998, we
agreed to use our reasonable efforts to register the common stock of Dycom
issued to the selling stockholders and to keep the registration statement
effective for six months, or until all of the registered shares are sold,
whichever comes first. Our registration of the common stock held by the selling
stockholders does not necessarily mean that the selling stockholders will sell
all or any of the shares.
The following list of selling stockholders received their shares
through the acquisition of Cable Com, Inc. and Installation Technicians, Inc.
This prospectus covers the offer and sale by each selling stockholder of their
common stock. Set forth below are (i) the names of each selling stockholder,
(ii) the nature of any position, office or other material relationship that they
have had within the past three years with Dycom or any of its predecessors or
affiliates, (iii) the number of shares of common stock they beneficially owned
as of October 31, 1998, (iv) the number of shares that may be offered and sold
by or on their behalf and (v) the amount of common stock to be owned by them
upon the completion of the offering if all shares offered are sold.
<TABLE>
<CAPTION>
Shares
Shares Beneficially Being Shares Beneficially
Selling Stockholder Owned Prior to Offering(1) Offered Owned After Offering(1)
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Number Percent Number Percent
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Thomas E. Atkins(2)..............492,000 3.3% 240,000 252,000 1.7%
Gerald W. Hartman(3).............518,880 3.5 218,880 300,000 2.0
John J. Ekstrom and
Joanne Ekstrom as
Tenants by the Entireties(4).....437,520 2.9 220,000 217,520 1.5
Tom Atkins/Thomas Scott
Atkins Irrevocable Trust..........54,000 * 30,000 24,000 *
Tom Atkins/Malinda Ann
Atkins Irrevocable Trust..........54,000 * 30,000 24,000 *
Gerald W. Hartman/Lisa M.
Lutz Irrevocable Trust............40,560 * 40,560 - -
Gerald W. Hartman/Tonia R.
Schmidt Irrevocable Trust.........40,560 * 40,560 - -
The John J. Ekstrom
Irrevocable Trust.................81,240 * 40,000 41,240 *
Joanne Ekstrom Irrevocable
Trust.............................81,240 * 40,000 41,240 *
</TABLE>
(footnotes appear on the following page)
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<PAGE>
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*Less than 1%
(1) Includes outstanding shares and stock options exercisable within 60 days
after October 31, 1998 held by officers and directors.
(2) Prior to the acquisition of Cable Com, Inc., Thomas E. Atkins was the Vice
President and Assistant Secretary of Cable Com, Inc. Prior to the acquisition of
Installation Technicians, Inc., Mr. Atkins was Assistant Secretary of
Installation Technicians, Inc. Presently, Mr. Atkins is the Assistant Secretary
of Installation Technicians, Inc.
(3) Prior to the acquisition of Cable Com, Inc., Gerald W. Hartman was the Vice
President of Cable Com, Inc. Prior to the acquisition of Installation
Technicians, Inc., Mr. Hartman was Chairman and President of Installation
Technicians, Inc. Presently, Mr. Hartman is the Chairman and President of
Installation Technicians, Inc.
(4) Prior to the acquisition of Cable Com, Inc., John J. Ekstrom was the
President and CEO of Cable Com, Inc. Prior to the acquisition of Installation
Technicians, Inc., Mr. Ekstrom was Vice President and Assistant Treasurer of
Installation Technicians, Inc. Presently, Mr. Ekstrom is the President and CEO
of Cable Com, Inc. Includes 417,240 shares held by John J. Ekstrom and Joanne
Ekstrom as tenants by the entireties and 20,280 shares held by the Joanne
Ekstrom Revocable Trust.
PLAN OF DISTRIBUTION
We are registering shares of our common stock on behalf of the selling
stockholders. As used in this prospectus, "selling stockholders" includes donees
and pledgees selling shares received from a named selling stockholder after the
date of this prospectus. We will pay for all costs, expenses and fees in
connection with the registration of the shares. The selling stockholders will
pay for all selling discounts and commissions, if any. The selling stockholders
may offer and sell their shares from time to time in one or more of the
following types of transactions (including block transactions):
o on the New York Stock Exchange,
o in the over-the-counter market,
o in privately negotiated transactions,
o through put or call options transactions relating to the shares,
o through short sales of shares, or
o a combination of such methods of sale.
The selling stockholders may sell their shares at prevailing market
prices, or at privately negotiated prices. Such transactions may or may not
involve brokers or dealers. The selling stockholders have advised us that they
have not entered into any agreements, understanding or arrangements with any
underwriters or broker-dealers regarding the sale of their shares, nor is there
an underwriter or coordinating broker acting in connection with the proposed
sale of shares by the selling stockholders.
The selling stockholders may offer and sell their shares directly to
purchasers or to or through broker-dealers, which may act as agents or
principals. Such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the selling stockholders and/or the
purchasers of shares.
We have agreed to indemnify each selling stockholder against certain
liabilities, including liabilities arising under the Securities Act.
Selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933, provided they meet the criteria and conform to the requirements of such
rule.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
We have authorized the issuance of 50,000,000 shares of common stock,
$0.33 1/3 par value, and 1,000,000 shares of preferred stock, $1.00 par value
share.
Common Stock
On October 31, 1998, there were 14,730,626 outstanding shares of
common stock held by 629 stockholders of record.
The holders of common stock are entitled to one vote per share on all
matters submitted to a vote of the stockholders. Holders of common stock do not
have cumulative voting rights. Therefore, holders of more than 50% of the shares
of common stock are able to elect all our directors eligible for election in a
given year. The holders of common stock are entitled to dividends and other
distributions out of assets legally available if and when declared by the board
of directors. Upon our liquidation, dissolution or winding up, the holders of
common stock are entitled to share pro rata in the distribution of all of our
assets remaining available for distribution after satisfaction of all
liabilities, including any prior rights of any preferred stock which may be
outstanding. There are no redemption or sinking fund provisions applicable to
the common stock.
The transfer agent and registrar for the common stock is First Union
National Bank of North Carolina, Charlotte, North Carolina.
Preferred Stock
There are no shares of preferred stock outstanding. Series of the
preferred stock may be created and issued from time to time by our board of
directors, with such rights and preferences as they may determine.
Anti-takeover Provisions
On June 1, 1992, we approved a shareholder rights plan. All
stockholders of record on June 15, 1992 were issued a right (a "Right") for each
outstanding share of our common stock. Each Right entitles the holder to
purchase one-half share of common stock for an exercise price of $18.00, subject
to certain adjustments. The Right is exercisable only when a triggering event
occurs. Among the triggering events are (1) a person or group's acquisition of
20% or more of our common stock, (2) the commencement of a tender offer which
would result in a person or group owning 20% or more of our common stock, or (3)
the acquisition of at least 10% of our common stock and such acquisition is
determined to have effects adverse to us. We can redeem the Rights at $0.01 per
Right, subject to certain adjustments, at any time prior to ten days after a
triggering event occurs.
Certain executive officers of Dycom have agreements with Dycom, which
provide for substantial compensation (in general terms, double the officer's
salary and bonuses paid the previous year), upon a change of control in Dycom.
Thomas R. Pledger's employment agreement also permits him to terminate his
employment in the event of a change of control. The current total amount of
payments under these agreements upon a change in control would be approximately
$2.8 million. Such payments would be triggered by any person's acquisition of
more than fifty percent of our outstanding securities, the sale or transfer of
substantially all of our assets to someone other than a wholly-owned subsidiary
of Dycom, or a change of control of the board of directors.
Our articles of incorporation provide that the board of directors is
divided into three classes, as nearly equal in number as possible, with one
class of directors being elected each year for a three-year term. The
classification of the board may have the effect of delaying a change in a
majority of the members of our board of directors.
Our articles of incorporation require approval of 80% of the
outstanding shares of our capital stock entitled to vote in elections of
directors for any merger with or into another corporation or any sale or
transfer of all
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or a substantial part of our assets to, or any sale or transfer to us or any
subsidiary in exchange for our securities or any assets (except assets valued at
less than $1,000,000) of, any other corporation or person, if at the time such
other corporation or person is the beneficial owner, or is affiliated with the
beneficial owner, of more than 20% of the outstanding shares of our capital
stock entitled to vote in elections of directors. This requirement is not
applicable to any such transaction with another corporation which was approved
by our board of directors prior to the time that such other corporation became
a holder of more than 20% of the outstanding shares of our capital stock.
The Florida Business Corporation Act contains provisions eliminating
the voting rights of "control shares", which are defined as shares which give
any person, directly or indirectly, ownership of, or the power to direct the
exercise of voting power with respect to, 20% or more of the outstanding voting
power of an "issuing public corporation." A corporation is an issuing public
corporation if it has at least 100 shareholders, its principal place of
business, principal office or substantial assets are in Florida and either more
than 10% of its shareholders reside in Florida, more than 10% of its shares are
owned by Florida residents or 1,000 shareholders reside in Florida. The voting
rights of control shares are not eliminated if the articles of incorporation or
the bylaws of the corporation prior to the acquisition provide that the statute
does not apply. Voting rights are restored to control shares if, subsequent to
their acquisition, the corporation's shareholders (other than the holder of
control shares, officers of the corporation and employee directors) vote to
restore such voting rights.
The Florida Business Corporation Act also restricts "affiliated
transactions" (mergers, consolidations, transfers of assets and other
transactions) between "interested shareholders" (the beneficial owners of 10% or
more of the corporation's outstanding shares) and the corporation or any
subsidiary. Affiliated transactions must be approved by two-thirds of the voting
shares not beneficially owned by the interested shareholder or by a majority of
the corporation's "disinterested" directors. The statutory restrictions do not
apply if the corporation has had fewer than 300 shareholders of record for three
years, the interested shareholder has owned at least 80% of the outstanding
shares for five years, the interested shareholder owns at least 90% of the
corporation's outstanding voting shares, or certain consideration is paid to all
shareholders.
The provisions of our articles and by-laws, the existence of the
shareholder rights plan and the change of control agreements and the application
of the anti-takeover provisions of the Florida Business Corporation Act could
have the effect of discouraging, delaying or preventing a change of control not
approved by the board of directors which could affect the market price of our
common stock.
Indemnification
Our by-laws require us to indemnify each of our directors and officers
to the fullest extent permitted by law and limits the liability of our directors
and stockholders for monetary damages in certain circumstances.
The provisions of the Florida Business Corporation Act that allow such
indemnification do not eliminate the duty of care of a director and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available. In addition, each director
continues to be subject to liability for (a) criminal violations, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful, (b) deriving an improper
personal benefit from a transaction, (c) voting for or assenting to an unlawful
distribution, and (d) willful misconduct or a conscious disregard for our best
interests in a proceeding by or on our behalf or in a proceeding by or on behalf
of a shareholder. The statute does not affect a director's responsibilities
under any other law, such as the federal securities laws or state or federal
environmental laws.
Dividend Restrictions
Our credit agreement currently limits our ability to pay dividends on
the common stock to 50% of net after-tax profits for the fiscal year. The credit
agreement's restrictions on our debt-to-net worth, quick and current ratios also
affect our ability to pay dividends. The payment of dividends on the common
stock is also subject to the
9
<PAGE>
preference that may be applicable to any then outstanding preferred stock.
LEGAL MATTERS
The validity of the shares of common stock offered in this prospectus
will be passed upon by the law firm of Akerman, Senterfitt & Eidson, Miami,
Florida.
EXPERTS
The financial statements of the Company and its consolidated
subsidiaries, except Communications Construction Group, Inc. for the years ended
May 31, 1997 and 1996, as of July 31, 1998 and 1997 and for each of the three
years in the period ended July 31, 1998, incorporated by reference in this
prospectus have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated by reference herein. The financial
statements of Communications Construction Group, Inc. for the years ended May
31, 1997 and 1996 (consolidated with those of the Company) have been audited by
Nowalk & Associates, independent auditors, as stated in their report
incorporated by reference herein. Such financial statements of the Company and
its consolidated subsidiaries are - incorporated by reference in reliance upon
the respective reports of such firms given upon their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). You may read and copy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our SEC filings are also
available to the public from the SEC's Website at http://www.sec.gov.
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
o our annual report on Form 10-K for the fiscal year ended July 31,
1998, and
o our definitive proxy statement filed on September 30, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning our Corporate Secretary at the following address:
Dycom Industries, Inc.
4440 PGA Boulevard
Suite 600
Palm Beach Gardens, Florida 33410
Attention: Corporate Secretary
(561) 627-7171
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information provided in this prospectus. We
have authorized no one to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document.
10
<PAGE>
900,000 Shares
DYCOM INDUSTRIES, INC.
COMMON STOCK
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following expenses, other than the Securities and Exchange
Commission registration fee are estimated. All of the expenses of the
offering will be paid by the Company.
SEC Registration Fees.............................$ 9,578
Legal Fees and Expenses...........................$40,000
Accounting Fees and Expenses......................$ 3,000
Miscellaneous.....................................$ 2,422
-------
Total....................................$55,000
Item 15. Indemnification of Directors and Officers
The By-Laws of the Company provide that the Company shall indemnify
each director and officer of the Company to the fullest extent permitted by law
and limits the liability of directors to the Company and its stockholders for
monetary damages in certain circumstances. The registrant has insured its
directors and officers against certain civil liabilities in connection with the
registration, offering and sale of the securities.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (b)
deriving an improper personal benefit from a transaction, (c) voting for or
assenting to an unlawful distribution, and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
Item 16. Exhibits
Exhibit
Number Description
------- -----------
4.1 Portions of articles and by-laws defining rights of shareholders*
5.1 Opinion of Akerman, Senterfitt & Eidson regarding the common stock
registered hereby
23.1 Consent of Akerman, Senterfitt & Eidson (included in opinion
delivered under Exhibit No. 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Nowalk & Associates
24.1 Powers of Attorney (included on the signature page of this
registration statement)
- -----------------
* Incorporated by reference to the Company's Registration Statement on Form S-3
(File No. 333-36883).
II-1
<PAGE>
Item 17. Undertakings
A. 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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(b) 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; and
(c) 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;
provided, however, that paragraphs A.1(a) and A.1 (b) above do not
apply if the the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission (the "Commission") by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described in Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any such 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
II-2
<PAGE>
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Palm Beach Gardens, State of Florida on the 6th day
of November, 1998.
DYCOM INDUSTRIES, INC.
By: /s/ THOMAS R. PLEDGER
-------------------------------------
Thomas R. Pledger
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas R. Pledger, Steven E. Nielsen and
Douglas J. Betlach, or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign and file (1) any and
all amendments (including post-effective amendments) to this Registration
Statement, with all exhibits thereto, and other documents in connection
therewith and (2) a registration statement, and any and all amendments thereto,
relating to the offering covered hereby filed pursuant to Rule 462(b) under the
Securities Act, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, agent,
or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/S/ THOMAS R. PLEDGER Chairman, Chief Executive Officer November 6, 1998
- --------------------------------------- and Director
Thomas R. Pledger
/S/ STEVEN E. NIELSEN President, Chief Operating Officer November 6, 1998
- --------------------------------------- and Director
Steven E. Nielsen
/s/ DOUGLAS J. BETLACH Vice President, Treasurer and November 6, 1998
- --------------------------------------- Chief Financial Officer
Douglas J. Betlach
/s/ DARLINE M. RICHTER Vice President and Controller November 6, 1998
- ---------------------------------------
Darline M. Richter
/s/ LOUIS W. ADAMS, JR. Director November 6, 1998
- ---------------------------------------
Louis W. Adams, Jr.
/s/ WALTER L. REVELL Director November 6, 1998
- ---------------------------------------
Walter L. Revell
/s/ RONALD P. YOUNKIN Director November 6, 1998
- ---------------------------------------
Ronald P. Younkin
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
4.1 Portions of articles and by-laws defining rights of shareholders*
5.1 Opinion of Akerman, Senterfitt & Eidson regarding the common stock
registered hereby
23.1 Consent of Akerman, Senterfitt & Eidson (included in opinion
delivered under Exhibit No. 5.1)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Nowalk & Associates
24.1 Powers of Attorney (included on the signature page of this
registration statement)
- -----------------
* Incorporated by reference to the Company's Registration Statement on Form S-3
(File No. 333-36883).
II-6
[Letterhead of Akerman, Senterfitt & Eidson, P.A.]
November 6, 1998
Dycom Industries, Inc.
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, Florida 33410
Re: Dycom Industries, Inc., a Florida corporation ("Company") -
Registration Statement on Form S-3 pertaining to 900,000 shares
("Shares") of common stock, par value $0.33 1/3 per share to be
sold by certain stockholders of the Company
Ladies and Gentlemen:
In connection with the registration of the Shares under the Securities
Act of 1993, as amended (the "Act"), by the Company on Form S-3 filed with the
Securities and Exchange Commission on or about November 6, 1998 (the
"Registration Statement"), you have requested our opinion with respect to the
matters set forth below.
We have acted as special Florida counsel for the Company in connection
with the matters described herein. In our capacity as special Florida counsel to
the Company, we have reviewed and are familiar with the corporate records of the
Company and proceedings taken by the Company in connection with the
authorization, issuance and sale of the Shares. We have also examined such other
documents, agreements and instruments as we have deemed necessary as a basis for
the opinions hereinafter expressed. In addition, we have relied as to factual
matters upon certificates and advice from the officers of the Company upon which
we believe we are justified in relying and on certificates of public officials.
Our knowledge of the Company's records and activities is limited to those
matters which have been brought to our attention by those corporate records of
the Company which the Company requested us to review and which were revealed to
us by the Company in response to our inquires. We make no representation
concerning the accuracy or completeness of the Company's responses to such
inquiries.
We have assumed the genuineness of all signatures and the authenticity
of all documents submitted to us as originals and the conformity to the
originals of all documents submitted to us as certified, photostatic or
conformed copies. In addition, we have assumed that each person executing
<PAGE>
Dycom Industries, Inc.
November 6, 1998
Page 2
- ----------------------
any instrument, document or certificate referred to herein on behalf of any
party is duly authorized to do so.
Our opinion as to the "active status" of the Company in the State of
Florida is based solely on a certificate issued by the Secretary of State of
Florida on November 6, 1998.
This opinion letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to all applicable
qualifications, exceptions, definitions, limitations on coverage and other
limitations which are more particularly described in the Accord, and this
opinion should be read in conjunction therewith. The opinions contained herein
are qualified in their entirety by the General Qualifications set forth in
Section 11 of the Accord.
Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, it is our opinion that, as of the date of this
letter:
(a) The Company has been duly incorporated and its status is active
under the laws of the State of Florida; and
(b) The Shares have been duly authorized by all necessary corporate
action on the part of the Company, have been validly issued and are fully paid
and non-assessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement. We also consent to the identification of our firm as special Florida
counsel to the Company in the section of the Prospectus entitled "Legal
Matters." In giving such consent, we do not thereby admit that we are included
within the category of persons where consent is required under Section 7 of the
Act or the rules and regulations promulgated thereunder.
The opinions expressed herein are limited to the laws of the State of
Florida and we express no opinion concerning any laws other than the laws of the
State of Florida.
This opinion is limited to the matters expressly stated herein and no
opinions are to be inferred or may be implied beyond the matters expressly so
stated. This opinion is given as of the date hereof and is based upon laws,
rules and regulations, and court decisions as they exist, and are construed on
this date. We disclaim any obligation to update or supplement this opinion to
reflect any facts or circumstances that may hereafter come to our attention or
any changes in laws that may hereafter occur.
Very truly yours,
/s/ Akerman, Senterfitt & Eidson, P.A.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Dycom Industries, Inc. on Form S-3 of our report dated August 31, 1998,
appearing in the Annual Report on Form 10-K of Dycom Industries, Inc. for the
year ended July 31, 1998 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Certified Public Accountants
West Palm Beach, Florida
November 6, 1998
INDEPENDENT AUDITORS' CONSENT
We consent to the use and incorporation by reference in this Registration
Statement of Dycom Industries, Inc. on Form S-3 of our report dated July 23,
1997, appearing in the Annual Report on Form 10-K of Dycom Industries, Inc. for
the year ended July 31, 1998, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Nowalk & Associates
Certified Public Accountants
Cranbury, NJ
November 5, 1998
