Attached files
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EX-31.1 - UniTek Global Services, Inc. | v202424_ex31-1.htm |
EX-32.1 - UniTek Global Services, Inc. | v202424_ex32-1.htm |
EX-31.2 - UniTek Global Services, Inc. | v202424_ex31-2.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
10-Q
(Mark
One)
x QUARTERLY REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For
the quarterly period ended October 2, 2010
OR
¨ TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For the
transition period from _____________ to ______________
COMMISSION
FILE NUMBER 0-28579
UNITEK
GLOBAL SERVICES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
|
75-2233445
|
|
(State
or Other Jurisdiction of Incorporation)
|
(I.R.S.
Employer Identification No.)
|
1777
Sentry Parkway West
Blue
Bell, Pennsylvania 19422
(Address
of Principal Executive Offices)
(267)
464-1700
(Registrant’s
Telephone Number, Including Area Code)
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No ¨
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding
12 months (or for such shorter period that the registrant was required to submit
and post such files). Yes ¨ No ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company.
See definition of “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act.
Larger
accelerated filer ¨
|
Accelerated
filer ¨
|
Non-accelerated
filer ¨
|
Smaller
reporting company x
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes ¨ No x
Indicate
the number of shares outstanding of each of the issuer’s classes of common
stock, as of the latest practicable date:
On
November 16, 2010, 29,857,065 shares of the registrant's common stock, $0.00002
par value per share, were outstanding including the 19,000,000 shares from the
equity offering closed on November 16, 2010 and 5,972,125 shares resulting from
the conversion of the Series B Preferred stock in connection with the equity
offering. These shares reflect the one-for-28 reverse stock-split effected
on November 9, 2010, but does not take into account the additional one-for-two
reverse stock-split that has
been approved and is expected to conclude in December
2010.
UNITEK
GLOBAL SERVICES, INC. AND SUBSIDIARIES
QUARTERLY
REPORT ON FORM 10-Q
INDEX
|
PAGE
NO.
|
||
PART
I:
|
FINANCIAL
INFORMATION
|
||
Item
1.
|
Financial
Statements
|
||
Condensed
Consolidated Balance Sheets (Unaudited) as of October 2, 2010 and
December 31, 2009
|
3
|
||
Condensed
Consolidated Statements of Operations (Unaudited) for the three and nine
months ended October 2, 2010 and October 3, 2009
|
4
|
||
Condensed
Consolidated Statements of Cash Flows (Unaudited) for the nine months
ended October 2, 2010 and October 3, 2009
|
5
|
||
Notes
to Condensed Consolidated Financial Statements (Unaudited)
|
7
|
||
Item
2.
|
Management's
Discussion and Analysis of Financial Condition and Results of
Operations
|
22
|
|
Item
4T.
|
Controls
and Procedures
|
35
|
|
PART
II:
|
OTHER
INFORMATION
|
||
Item
1.
|
Legal
Proceedings
|
36
|
|
Item
1A.
|
Risk
Factors
|
36
|
|
Item
2.
|
Unregistered
Sale of Equity Securities and Use of Proceeds
|
37
|
|
Item
3.
|
Defaults
Upon Senior Securities
|
37
|
|
Item
4.
|
(Removed
and Reserved)
|
37
|
|
Item
5.
|
Other
Information
|
37
|
|
Item
6.
|
Exhibits
|
37
|
|
SIGNATURES
|
39
|
2
UNITEK
GLOBAL SERVICES, INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED BALANCE SHEETS
(Amounts
in thousands)
(Unaudited)
October 2,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
ASSETS
|
||||||||
CURRENT
ASSETS
|
||||||||
Cash
and cash equivalents
|
$
|
1,688
|
$
|
2,263
|
||||
Restricted
cash
|
-
|
133
|
||||||
Accounts
receivable and unbilled revenue, net of allowances
|
66,933
|
24,680
|
||||||
Inventories
|
11,205
|
8,326
|
||||||
Prepaid
expenses and other current assets
|
5,584
|
3,804
|
||||||
Total
current assets
|
85,410
|
39,206
|
||||||
Property
and equipment, net
|
17,463
|
20,665
|
||||||
Amortizable
intangible assets, net
|
19,936
|
26,941
|
||||||
Goodwill
|
143,475
|
137,827
|
||||||
Deferred
tax assets, net
|
109
|
109
|
||||||
Other
assets
|
7,958
|
7,093
|
||||||
Total
assets
|
$
|
274,351
|
$
|
231,841
|
||||
LIABILITIES,
CONVERTIBLE PREFERRED STOCK, AND STOCKHOLDERS' EQUITY
|
||||||||
CURRENT
LIABILITIES
|
||||||||
Accounts
payable
|
$
|
31,936
|
$
|
19,302
|
||||
Accrued
liabilities
|
31,030
|
23,329
|
||||||
Current
portion of long-term debt
|
33,048
|
33,006
|
||||||
Current
income taxes
|
103
|
187
|
||||||
Current
portion of capital lease obligations
|
5,203
|
5,097
|
||||||
Total
current liabilities
|
101,320
|
80,921
|
||||||
Long-term
debt, net of current portion
|
132,498
|
127,163
|
||||||
Long-term
capital lease obligations, net of current portion
|
814
|
4,244
|
||||||
Other
long-term liabilities
|
3,186
|
-
|
||||||
Total
liabilities
|
237,818
|
212,328
|
||||||
Series
B Convertible Preferred Stock (liquidation value of $26,528 at October
2, 2010)
|
13,265
|
-
|
||||||
STOCKHOLDERS'
EQUITY
|
||||||||
Series
A Convertible Preferred Stock
|
-
|
-
|
||||||
Common
Stock
|
3
|
1,091
|
||||||
Additional
paid-in capital
|
136,080
|
112,747
|
||||||
Accumulated
other comprehensive income (loss)
|
89
|
60
|
||||||
Accumulated
deficit
|
(112,904
|
)
|
(94,385
|
)
|
||||
Total
stockholders' equity
|
23,268
|
19,513
|
||||||
Total
liabilities, convertible preferred stock, and stockholders'
equity
|
$
|
274,351
|
$
|
231,841
|
The
accompanying notes are an integral part of these unaudited financial
statements.
3
UNITEK
GLOBAL SERVICES, INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts
in thousands, except per share data)
(Unaudited)
Three Months Ended
|
Nine Months Ended
|
|||||||||||||||
October 2,
2010
|
October 3,
2009
|
October 2,
2010
|
October 3,
2009
|
|||||||||||||
Revenues
|
$
|
110,121
|
$
|
72,579
|
$
|
304,928
|
$
|
210,491
|
||||||||
Costs
of revenues
|
91,933
|
61,327
|
257,770
|
181,388
|
||||||||||||
Gross
profit
|
18,188
|
11,252
|
47,158
|
29,103
|
||||||||||||
Selling,
general and administrative expenses
|
9,813
|
5,410
|
27,532
|
18,206
|
||||||||||||
Depreciation
and amortization
|
6,199
|
7,351
|
19,912
|
20,784
|
||||||||||||
Operating
income (loss)
|
2,176
|
(1,509
|
)
|
(286
|
)
|
(9,887
|
)
|
|||||||||
Interest
expense
|
5,972
|
4,897
|
17,385
|
13,202
|
||||||||||||
Other
expense, net
|
29
|
59
|
175
|
104
|
||||||||||||
Loss
from continuing operations before income taxes
|
(3,825
|
)
|
(6,465
|
)
|
(17,846
|
)
|
(23,193
|
)
|
||||||||
Income
tax expense
|
(48
|
)
|
(297
|
)
|
(151
|
)
|
(1,067
|
)
|
||||||||
Loss
from continuing operations
|
(3,873
|
)
|
(6,762
|
)
|
(17,997
|
)
|
(24,260
|
)
|
||||||||
(Loss) income
from discontinued operations
|
(2
|
)
|
(220
|
)
|
(461
|
)
|
555
|
|||||||||
Net
loss
|
$
|
(3,875
|
)
|
$
|
(6,982
|
)
|
$
|
(18,458
|
)
|
$
|
(23,705
|
)
|
||||
Net
income (loss) per share - basic:
|
||||||||||||||||
Continuing
operations
|
$
|
(0.79
|
)
|
$
|
(1.73
|
)
|
$
|
(3.76
|
)
|
$
|
(6.23
|
)
|
||||
Discontinued
operations
|
0.00
|
(0.06
|
)
|
(0.10
|
)
|
0.14
|
||||||||||
Net
loss
|
$
|
(0.79
|
)
|
$
|
(1.79
|
)
|
$
|
(3.86
|
)
|
$
|
(6.09
|
)
|
||||
Net
income (loss) per share - diluted:
|
||||||||||||||||
Continuing
operations
|
$
|
(0.79
|
)
|
$
|
(1.73
|
)
|
$
|
(3.76
|
)
|
$
|
(6.23
|
)
|
||||
Discontinued
operations
|
0.00
|
(0.06
|
) |
(0.10
|
)
|
0.14
|
||||||||||
Net
loss
|
$
|
(0.79
|
)
|
$
|
(1.79
|
)
|
$
|
(3.86
|
)
|
$
|
(6.09
|
)
|
||||
Weighted
average shares of common stock outstanding:
|
||||||||||||||||
Basic
|
4,885
|
3,896
|
4,785
|
3,896
|
||||||||||||
Diluted
|
4,885
|
3,896
|
4,785
|
3,896
|
The
accompanying notes are an integral part of these unaudited financial
statements.
4
UNITEK
GLOBAL SERVICES, INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts
in thousands)
(Unaudited)
Nine Months Ended
|
||||||||
October 2,
|
October 3,
|
|||||||
2010
|
2009
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
loss
|
$
|
(18,458
|
)
|
$
|
(23,705
|
)
|
||
Adjustments
to reconcile net loss to net cash used in operating
activities:
|
||||||||
Loss
(income) from discontinued operations
|
461
|
(555
|
)
|
|||||
Provision
for doubtful accounts
|
664
|
1,252
|
||||||
Depreciation
and amortization
|
19,912
|
20,784
|
||||||
Amortization
of deferred financing fees
|
2,486
|
1,635
|
||||||
Accrued
interest expense (income) on collar
|
248
|
(17)
|
||||||
Accretion
of debt discount
|
306 | - | ||||||
Stock-based
compensation
|
1,228
|
1,419
|
||||||
Interest
added to debt principal
|
2,806
|
1,498
|
||||||
Refundable
deposits
|
(389
|
)
|
(107
|
)
|
||||
Loss
on sale of fixed assets
|
116
|
133
|
||||||
Deferred
tax assets, net
|
25
|
1,146
|
||||||
Changes
in assets and liabilities:
|
||||||||
Accounts
receivable and unbilled revenue
|
(16,953
|
)
|
(6,261
|
)
|
||||
Inventories
|
(1,981
|
)
|
3,610
|
|||||
Prepaid
expenses and other assets
|
912
|
(3,545
|
)
|
|||||
Accounts
payable and accrued liabilities
|
5,176
|
1,717
|
||||||
Net
cash used in operating activities – continuing operations
|
(3,441
|
)
|
(996
|
)
|
||||
Net
cash (used in) provided by operating activities – discontinued
operations
|
(358
|
)
|
1,092
|
|||||
Net
cash (used in) provided by operating activities
|
(3,799
|
)
|
96
|
|||||
Cash
flows from investing activities:
|
||||||||
Acquisition
of property and equipment
|
(2,656
|
)
|
(2,289
|
)
|
||||
Proceeds
from sale of property and equipment
|
241
|
486
|
||||||
Cash
restricted for acquisition of business
|
133
|
317
|
||||||
Cash
paid for acquisition of business
|
(35
|
)
|
(4,893
|
)
|
||||
Net
cash used in investing activities
|
(2,317
|
)
|
(6,379
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Proceeds
from issuance of common shares
|
420
|
50
|
||||||
Proceeds
from issuance of preferred shares
|
12,500
|
-
|
||||||
Proceeds
from (repayment of) revolving credit facilities, net
|
(4,500
|
)
|
7,500
|
|||||
Repayment
of capital leases
|
(4,059
|
)
|
(1,456
|
)
|
||||
Repayment
of long term debt
|
(3,868
|
)
|
(1,170
|
)
|
||||
Proceeds
from issuance of long term debt
|
15,000
|
-
|
||||||
Repayment
of acquired debt, net of cash acquired
|
(7,246
|
)
|
-
|
|||||
Financing
fees
|
(2,136
|
)
|
(1,673
|
)
|
||||
Payment
of costs associated with equity offering
|
(520 |
)
|
- | |||||
Net
cash provided by financing activities
|
5,591
|
3,251
|
||||||
Effect
of exchange rate on cash and cash equivalents
|
(50
|
)
|
165
|
|||||
Net
decrease in cash and cash equivalents
|
(575
|
)
|
(2,867
|
)
|
||||
Cash
and cash equivalents at beginning of period
|
2,263
|
5,348
|
||||||
Cash
and cash equivalents at end of period
|
$
|
1,688
|
$
|
2,481
|
The accompanying notes are an
integral part of these unaudited financial statements.
5
UNITEK
GLOBAL SERVICES, INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts
in thousands)
(Unaudited)
Nine months Ended
|
||||||||
October 2,
|
October 3,
|
|||||||
2010
|
2009
|
|||||||
Supplemental
cash flow information:
|
||||||||
Interest
paid
|
$
|
13,421
|
$
|
10,121
|
||||
Income
taxes paid
|
$
|
366
|
$
|
253
|
||||
Significant
noncash items:
|
||||||||
Fair
value of equity paid for acquisition
|
$
|
19,927
|
$
|
-
|
||||
Acquisition
of property and equipment financed by capital
lease
|
$
|
154
|
$
|
3,029
|
||||
Credit
support fee paid in shares of Series B Convertible Preferred
Stock
|
$
|
765
|
$
|
-
|
The
accompanying notes are an integral part of these unaudited financial
statements.
6
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
1.
Business
UniTek
Global Services, Inc. (“UniTek,” “Company”, “we,” “our,” or “us”) is a premier
provider of high-quality, specialized infrastructure services including
engineering, construction management and installation fulfillment services to
the wired and wireless telecommunications, broadband cable and satellite
television industries. UniTek has created a scalable platform through
which it can rapidly deploy a highly skilled workforce of over 5,200 through 102
field offices across the United States and Canada, delivering a comprehensive
end-to-end suite of permanently outsourced infrastructure services. The
Company operates in two business segments: (1) fulfillment, which includes
fulfillment work for the pay television industry (both satellite and broadband
cable), and (2) engineering and construction, which include both wireless and
wired telecommunications.
On
January 27, 2010, Berliner Communications Inc. (“Berliner”), BCI East, Inc., a
Delaware corporation and a wholly owned subsidiary of Berliner (“Merger Sub”),
and UniTek Holdings, Inc., a Delaware corporation (“Holdings”), entered into an
Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger
Sub merged (the “Merger”) with and into Holdings and Holdings became a wholly
owned subsidiary of Berliner. The time on January 27, 2010 at which the
Merger became effective is referred to herein as the “Effective Time.” Following
the Merger, Berliner did business as UniTek Global Services, Inc. and officially
changed its name to UniTek Global Services, Inc. effective on June 4,
2010.
2.
Basis of
Presentation
The
accompanying unaudited condensed consolidated financial statements as of October
2, 2010, and for the three and nine months ended October 2, 2010 and October 3,
2009, have been prepared by us in accordance with accounting standards generally
accepted in the United States for interim financial statements and pursuant to
the rules and regulations of the United States Securities and Exchange
Commission (“SEC”). In the Company’s opinion, the accompanying unaudited
condensed consolidated financial statements include all adjustments, which are
of a normal and recurring nature except for the purchase accounting adjustments
as described in Note 4, necessary to present fairly the results of its
operations and cash flows at the dates and for the periods indicated. The
results of operations for the interim periods are not necessarily indicative of
the results for the full fiscal year. Certain prior period amounts have
been reclassified to conform to the current presentation.
The
accompanying unaudited condensed consolidated financial statements should be
read in conjunction with the audited consolidated financial statements included
in the Company’s Transition Report on Form 10-K for the fiscal year ended
December 31, 2009 filed with the SEC on March 31, 2010, and in its Current
Report on Form 8-K filed with the SEC on August 13, 2010.
In the
Merger of Berliner and Holdings, Holdings is the accounting acquirer with
Berliner the legal acquirer and registrant. Upon the completion of the
Merger, Berliner changed its fiscal year end from June 30 to December 31.
Berliner filed a transition report on Form 10-K on March 31, 2010. As the
accounting acquirer, Holdings’ historical results are presented for comparison
purposes with results of Berliner included in the consolidated results of the
Company after the Effective Time.
On August
6, 2010, a requisite majority of the Company’s stockholders approved
a reverse split of the Company’s common stock at a ratio not less than
one-to-eight and not more than one-to-30. The Board approved a
one-to-28 reverse stock split in conjunction with the equity offering discussed
in Note 17. The number of shares and earnings per share included in this
Form 10-Q have been retrospectively adjusted to reflect this reverse split that
occurred on November 9, 2010 in conjunction with the closing of the equity
offering.
3.
Accounting
Policies
Use
of Estimates
The
preparation of financial statements in conformity with U.S. generally accepted
accounting principles requires the Company to make estimates and assumptions
that affect the reported amounts of certain assets and liabilities, amounts
contained in certain of the notes to the consolidated financial statements, and
the revenues and expenses reported for the periods covered by the financial
statements. Although such assumptions are based on management’s best knowledge
of current events and actions the Company may undertake in the future, actual
results could differ significantly from those estimates and assumptions. The
Company’s more significant estimates relate to revenue recognition, allowances
for bad debts, accruals for legal obligations, medical insurance and workers
compensation insurance and valuation of goodwill and intangible
assets.
7
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
In the
ordinary course of accounting for items discussed above, the Company makes
changes in estimates as appropriate and as the Company becomes aware of
circumstances surrounding those estimates. Such changes in estimates are
reflected in reported results of operations in the period in which the changes
are made and, if material, their effects are disclosed in the notes to the
consolidated financial statements.
Principles
of Consolidation
The
consolidated financial statements include the accounts of UniTek and the
accounts of its wholly-owned subsidiaries. All significant intercompany accounts
and transactions have been eliminated in consolidation.
Cash
and Cash Equivalents
Cash and
cash equivalents include instruments with original maturities of three months or
less.
Accounts
Receivable and Allowance for Doubtful Accounts
Trade
accounts receivable are recorded at the invoiced amount and do not bear
interest. The allowance for doubtful accounts is the Company’s best estimate of
the amount of probable credit losses in its existing accounts receivable. A
specific reserve for bad debts is recorded for known or suspected doubtful
accounts receivable. For all other accounts, the Company recognizes a general
reserve for bad debts based on the length of time receivables are past due and
historical write-off experience. Account balances are charged off against the
allowance when the Company believes it is probable that the receivable will not
be recovered.
Inventories
Inventories
consist primarily of materials and supplies purchased from the customer and
other suppliers used for installation fulfillment services and wireless
construction. Inventories are stated at the lower of cost or market, as
determined by the first-in, first out method for the fulfillment segment and
average cost for the engineering and construction segment.
Prepaid
Expenses and Other Current Assets
Prepaid
and other current assets consist primarily of prepaid insurance, taxes and
expenses. These costs are expensed ratably over the related periods of
benefit.
Property
and Equipment
Property
and equipment are stated at cost. Depreciation is calculated using the
straight-line method over the estimated useful lives of the assets, which
principally range from three to seven years for computers, construction
equipment, furniture, vehicles, and equipment. The useful life of leasehold
improvements is based on the shorter of the term of the lease or five years.
Assets under capital leases are amortized over the lesser of the lease term or
the asset’s estimated useful life. When assets are retired or disposed of, the
cost and accumulated depreciation thereon are removed and any resultant gains or
losses are recognized. All depreciation of property and equipment is
included in the condensed consolidated statements of operations in Depreciation
and Amortization.
Goodwill
and Other Intangible Assets
Goodwill
is subject to an assessment for impairment using a two-step, fair value-based
test with the first step performed at least annually, or more frequently if
events or circumstances exist that indicate that goodwill may be impaired. The
Company completes an annual analysis of the reporting units at the beginning of
the fourth quarter of each fiscal year. The first step compares the fair value
of a reporting unit to its carrying amount, including goodwill. If the carrying
amount of the reporting unit exceeds its fair value, an impairment test is
performed to determine the implied value of goodwill for that reporting unit. If
the implied value is less than the carrying amount of goodwill for that
reporting unit, an impairment loss is recognized for that reporting
unit.
8
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
The
Company amortizes intangible assets, consisting of customer contracts, customer
relationships and non-compete agreements from acquired businesses, on a
straight-line basis over the 12- to 84-month lives of those agreements.
All amortization of amortizable intangible assets is included in the condensed
consolidated statements of operations in Depreciation and
Amortization.
Other
Long-Term Assets
Costs
associated with obtaining long-term debt are deferred and amortized to interest
expense on a straight-line basis, which approximates the effective interest
method, over the term of the related debt (see Note 7). At October 2,
2010 and December 31, 2009, $6.7 million and $6.6 million (net),
respectively, is included in other long-term assets related to deferred
financing fees.
Derivative
Financial Instruments
The
Company utilizes derivative financial instruments to reduce interest rate risks.
The Company does not hold derivative financial instruments for trading purposes.
All derivatives are accounted for at fair value. Changes in the fair value of
derivatives are recorded in earnings or other comprehensive income, based on
whether the instrument is designated as part of a hedge transaction and, if so,
the type of hedge transaction.
Revenue
Recognition
Revenues
from fulfillment services provided to the pay television industry are recognized
as the services are rendered. The Company recognizes revenue from fulfillment
services net of equipment because the Company has determined that it acts as an
agent.
The
Company also enters into contracts that require the installation or construction
of specified units within an infrastructure system. Under these contracts,
revenue is recognized at the contractually agreed price per unit as the units
are completed. Unbilled revenues represent amounts earned and recognized in the
period for which customer billings are issued in a subsequent period per the
contract terms. In the wireless portion of the engineering and
construction segment, revenue is primarily recorded on the percentage of
completion basis either based on direct costs incurred or on milestones
completed. Losses are recognized when such losses become
known.
Net
Loss per Share
Basic net
loss per share is computed by dividing net loss by the weighted average number
of shares of common stock outstanding during the periods presented. Diluted net
loss per share is computed by dividing net loss by the weighted average number
of shares of common stock outstanding during the periods plus the dilution that
would occur upon the exercise or conversion of any instruments convertible to
common stock, such as preferred stock, stock options or warrants. Options
to purchase 0.6 million shares of common stock and warrants to purchase 0.3
million shares of common stock were excluded from the computation because the
Company reported a loss from continuing operations for each of those
periods. Any outstanding stock options, warrants, or other instruments
that are convertible to common stock could potentially be dilutive should the
Company report net income in a future period. The weighted average number
of common shares outstanding used to calculate the net loss per common shares
includes the automatic conversion of the Series A Convertible Preferred Stock
(see Note 9) to common stock since the Effective Time as the Company believed
the automatic conversion to be perfunctory. This conversion was completed
on June 4, 2010, upon the filing and effectiveness of an amendment to the
Company’s certificate of incorporation.
The
Company has determined that the Series B Preferred Stock is a participating
security under Accounting Standards Codification (“ASC”) 260. Under ASC 260, a
security is considered a participating security if the security may participate
in undistributed earnings with common stock, whether that participation is
conditioned upon the occurrence of a specified event or not. In accordance with
ASC 260, a company is required to use the two-class method when computing EPS
when a company has a security that qualifies as a “participating security.” The
two-class method is an earnings allocation formula that determines EPS for each
class of common stock and participating security according to dividends declared
(or accumulated) and participation rights in undistributed earnings. A
participating security is included in the computation of basic EPS using the
two-class method. Under the two-class method, basic EPS for the Company’s Common
Stock is computed by dividing net income applicable to common stock by the
weighted-average common shares outstanding during the period. Diluted EPS for
the Company’s Common Stock is computed using the more dilutive of the two-class
method or the if-converted method.
However,
since the Company reported a loss for the quarter and nine months ended October
2, 2010, it was required by the ASC 260 to use basic weighted-average common
shares outstanding, rather than diluted weighted-average common shares
outstanding, when calculating diluted EPS for the quarter and nine months ended
October 2, 2010. In addition, since the Company reported a loss from continuing
operations for the quarter and nine months ended October 2, 2010, the Series B
Preferred Stock was not deemed to be a participating security for the quarter
and nine months ended October 2, 2010 pursuant to ASC 260, since the holders of
the Series B Preferred Stock do not have a contractual obligation to share in
the losses from continuing operations of the Company.
9
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Fair
Value of Financial Instruments
The
carrying values of cash and cash equivalents, accounts receivable, other current
assets, accounts payable and accrued liabilities approximate fair value due to
the short-term nature of those instruments. The carrying value of the capital
lease obligations approximates fair value because they bear interest at rates
currently available to the Company for debt with similar terms and remaining
maturities. The fair values of debt and derivative instruments are discussed in
Notes 7 and 8, respectively.
Income
Taxes
The
Company follows the asset and liability method of accounting for income taxes.
Income taxes consist of taxes currently due plus deferred taxes related
primarily to differences between the basis of assets and liabilities for
financial and income tax reporting. Deferred tax assets and liabilities
represent the future tax return consequences of those differences, which will
either be deductible or taxable when the assets and liabilities are recovered or
settled. Deferred taxes are also recognized for operating losses that are
available to offset future taxable income. Deferred tax assets and liabilities
are reflected at income tax rates applicable to the period in which the deferred
tax assets and liabilities are expected to be realized or settled. As changes in
tax laws or rates are enacted, deferred tax assets and liabilities are adjusted
through the provision for income taxes. A valuation allowance is recorded
against a deferred tax asset when it is determined to be more-likely-than-not
that the asset will not be realized.
The
Company provides an intra-period tax allocation of the income tax expense or
benefit for the year among continuing operations and discontinued
operations.
The
Company recorded income tax expense of $48 thousand and $0.3 million for the
three months ended October 2, 2010 and October 3, 2009, respectively.
For the nine months ended October 2, 2010 and October 3, 2009, the
Company recorded income tax expense of $0.2 million and $1.1 million,
respectively. The 2010 tax expense represents the estimated tax expense from the
Company’s Canadian operations. The 2009 tax expense is due to differences
between book and tax amortization of intangible assets.
At
October 2, 2010, the Company had net operating loss carry forwards for U.S.
federal and state income tax purposes of approximately $43 million which
begin to expire in 2014 and will fully expire by 2029. Because the Company
has not yet achieved profitable operations, management believes the potential
tax benefits from the U.S. deferred tax assets do not satisfy the realization
criteria set forth in ASC 740, and accordingly, has recorded a valuation
allowance for the entire net U.S. deferred tax asset.
Leases
The
Company leases vehicles primarily for performing fulfillment services to the pay
television industry. Leases are accounted for either as operating or capital
depending on the terms of the lease. Each lease is reviewed as to the terms and
a determination is made whether the vehicle is an operating or capital lease.
Operating lease payments are expensed as incurred. Capital leases are
included on the consolidated balance sheets as property and equipment and
capital lease obligations and depreciated over the expected useful
lives.
Stock-Based
Compensation
The
Company measures and recognizes compensation expense for all share-based awards
made to employees and directors including employee stock options based on
estimated fair values.
The
consolidated financial statements as of October 2, 2010 and for the three and
nine months ended October 2, 2010 and October 3, 2009 include stock option
expense as compensation expense. Pretax stock-based compensation expense
recognized for the three months ended October 2, 2010 and October 3, 2009 was
$0.4 million and $0.5 million, respectively. Pretax stock-based compensation
expense recognized for the nine months ended October 2, 2010 and October 3, 2009
was $1.2 million and $1.4 million, respectively. For the three and nine months
ended October 2, 2010 and October 3, 2009, all stock-based compensation expense
was included in selling, general, and administrative expenses in the condensed
consolidated statements of operations.
10
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Stock-based
compensation expense is based on the fair value of awards ultimately expected to
vest, net of estimated forfeitures. The Company estimates the fair value of
stock-based awards on the date of grant primarily using the Black-Scholes
option-pricing model and recognizes compensation expense on a straight-line
basis over the requisite service periods. Stock-based compensation expense
recognized during the current period is based on the value of the portion of
stock-based awards that is ultimately expected to vest. The Company estimates
forfeitures at the time of grant in order to estimate the amount of stock-based
awards that will ultimately vest. Limited historical forfeiture data is
available. As such, management has based the estimated forfeiture rate on
expected employee turnover. The Company records the cash flows resulting from
the tax deductions in excess of the compensation cost recognized for those
options (excess tax benefit) as financing cash flows.
Comprehensive
Loss
Comprehensive
loss is a measure of net loss and all other changes in equity that result from
transactions other than those with shareholders. Comprehensive loss
consists of net loss and foreign currency translation adjustments.
Comprehensive
loss consisted of the following (in thousands):
Three Months Ended
|
Nine Month Ended
|
|||||||||||||||
October 2,
2010
|
October 3,
2009
|
October 2,
2010
|
October 3,
2009
|
|||||||||||||
Net
loss
|
$
|
(3,875
|
)
|
$
|
(6,982
|
)
|
$
|
(18,458
|
)
|
$
|
(23,705
|
)
|
||||
Foreign
currency translation (loss) gain
|
124
|
90
|
28
|
173
|
||||||||||||
Comprehensive
loss
|
(3,751
|
)
|
(6,892
|
)
|
(18,430
|
)
|
(23,532
|
)
|
Recent
Accounting Pronouncements
In
January 2010, an amendment to the Financial Accounting Standards Board (“FASB”)
fair value guidance was issued. This amendment requires disclosures of transfers
into and out of Levels 1 and 2, more detailed roll forward reconciliations of
Level 3 recurring fair value measurements on a gross basis, fair value
information by class of assets and liabilities, and descriptions of valuation
techniques and inputs for Level 2 and 3 measurements. The Company adopted this
amendment during the quarter ended April 3, 2010.
In
October 2009, the FASB issued new guidance for revenue recognition
with multiple deliverables. This new guidance impacts the determination of when
the individual deliverables included in a multiple-element arrangement may be
treated as separate units for accounting purposes. Additionally, this new
guidance modifies the manner in which the arrangement consideration is allocated
across the separately identified deliverables by no longer permitting the
residual method of allocating arrangement consideration. This new guidance is
required to be adopted in the first quarter of 2011; however, early adoption is
permitted. The Company does not expect this new guidance to significantly
impact its consolidated financial statements.
In July 2010, the FASB
issued Accounting Standards Update (“ASU”) No. 2010-20, "Disclosures about
the Credit Quality of Financing Receivables and the Allowance for Credit Losses"
an update to Accounting Standards Codification (“ASC”) 310. This update enhances
the disclosure requirements of ASC 310 regarding the credit quality of financing
receivables and the allowance for credit losses and requires entities to provide
a greater level of disaggregated information about the credit quality of
financing receivables and the allowance for credit losses. In addition, ASU
No. 2010-20 requires disclosure of credit quality indicators, past due
information, and modifications of its financing receivables. For public
entities, the end of period disclosure requirements of ASU No. 2010-20 are
effective for interim and annual reporting periods ending on or after
December 15, 2010. The disclosures about activity that occurs during a
reporting period are effective for interim and annual reporting periods
beginning on or after December 15, 2010. The Company does not expect
these new standards to significantly impact its consolidated financial
statements.
4.
Berliner-UniTek Holdings
Merger
On
January 27, 2010, Berliner and Holdings entered into the Merger Agreement.
Pursuant to the terms and conditions of the Merger Agreement, at the Effective
Time, each outstanding share of common stock of Holdings (the “Holdings Common
Stock”) (prior to adjusting for the one-for-28 reverse stock-split effected on
November 9, 2010) was converted into the right to receive 0.012 shares of series
A preferred stock of Berliner (the “Berliner Series A Preferred Stock”) and 0.40
shares of common stock of Berliner (the “Berliner Common Stock”), and each share
of series A preferred stock of Holdings (the “Holdings Preferred Stock”) was
converted into the right to receive 0.02 shares of series B preferred stock of
Berliner (the “Berliner Series B Preferred Stock”). The terms of the Berliner
Series A Preferred Stock and the Berliner Series B Preferred Stock are
summarized in Item 5.03 of the Form 8-K filed with the SEC on January 27,
2010. The Merger expanded Holdings presence in the wireless
telecommunications market in the site acquisition and construction of wireless
cell towers and related services.
11
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Based on
the number of shares of Holdings capital stock and Berliner capital stock
outstanding as of January 27, 2010, the stockholders of Holdings immediately
prior to the Effective Time held more than 80% of the voting capital stock of
Berliner outstanding immediately following the Merger.
The total
fair value of the consideration paid for Berliner was $27.5 million, including
$19.9 million of equity and the assumption of debt with a fair value of $7.6
million. The fair value of the equity was determined based upon the
underlying value of the Unitek stock as determined by a third-party valuation
and the exchange rate established in the Merger agreement. The following
allocation of the purchase price to the fair value of tangible and intangible
assets, and the useful lives of these assets, remains preliminary as the Company
continues to assess the valuation of acquired assets and liabilities and any
adjustments to the purchase price based on the final net working capital.
The following table summarizes the estimated fair value of the consideration
paid for Berliner and the preliminary allocation of the purchase price to the
fair value of assets acquired and liabilities assumed at the date of acquisition
(in thousands):
Cash
|
$
|
336
|
||
Accounts
receivable
|
25,964
|
|||
Inventories
|
898
|
|||
Prepaid
expenses and other current assets
|
2,686
|
|||
Property
and equipment
|
2,649
|
|||
Amortizable
intangible assets
|
4,658
|
|||
Goodwill
|
5,675
|
|||
Other
assets
|
289
|
|||
Accounts
payable and accrued expenses
|
(
14,501
|
)
|
||
Other
liabilities
|
(534
|
)
|
||
Capital
lease obligations
|
( 611
|
)
|
||
Total
fair value of net assets acquired
|
$
|
27,509
|
The
results of the Merger are included in the consolidated results of the Company
effective January 27, 2010 in the engineering and construction segment.
During the three- and nine-month periods ended October 2, 2010, the Merger
contributed revenue of approximately $23.5 million and $66.1 million and
operating income of $0.4 million and $0.0 million, respectively. The
Company has recognized goodwill of $5.7 million, which is not
tax-deductible, arising from the acquisition representing the value of the
existing workforce as well expected synergies from the combination of
operations. The goodwill associated with the Merger is included in the
engineering and construction segment’s assets.
The
following pro forma data presents revenue and loss from continuing operations as
if the Merger had occurred at the beginning of the respective annual reporting
periods (in thousands):
Three Months Ended
|
Nine months Ended
|
|||||||||||||||
October 2, 2010
|
October 3,
2009
|
October 2,
2010
|
October 3,
2009
|
|||||||||||||
Revenue
|
$
|
110,121
|
$
|
90,294
|
$
|
311,329
|
$
|
255,076
|
||||||||
Loss
from continuing operations
|
(3,402
|
)
|
(8,132
|
)
|
(17,497
|
)
|
(31,563
|
)
|
5.
Accounts Receivable and Concentration
of Credit Risk
Accounts
receivable and unbilled revenue, net of allowances, at October 2, 2010 and
December 31, 2009, consist of the following (in thousands):
October 2,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
Accounts
receivable
|
$
|
45,283
|
$
|
19,584
|
||||
Unbilled
revenue
|
23,225
|
6,425
|
||||||
68,508
|
26,009
|
|||||||
Allowance
for doubtful accounts
|
(1,575
|
)
|
(1,329
|
)
|
||||
Total
|
$
|
66,933
|
$
|
24,680
|
12
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Unbilled
revenue principally represents the value of services rendered to customers not
billed as of the balance sheet date. Unbilled revenue is generally billed
within three months subsequent to the provision of the services.
Credit
risk with respect to accounts receivable was concentrated with three customers
at October 2, 2010. These customers accounted for approximately $34.2
million (51%) of the accounts receivable at October 2, 2010. For the three
and nine months ended October 2, 2010, the Company derived approximately $69.2
million (63%) and $187.2 million (61%), respectively, of its total revenue from
its two largest customers. Each of these customers represented in excess
of 10% of the Company’s total net revenue. For the three and nine months ended
October 3, 2009, the Company derived $57.6 million (79%) and $171.5 million
(82%), respectively of its total revenue from its three largest customers.
These revenues were reported as a component of the Fulfillment segment
revenues.
6.
Goodwill and Intangible
Assets
The
following table summarizes the changes in the carrying amount of the Company’s
goodwill for the nine months ended October 2, 2010 (in thousands):
Beginning
balance, December 31, 2009
|
$
|
137,827
|
||
Goodwill
associated with Merger
|
5,675
|
|||
Other
adjustments
|
(27
|
)
|
||
Ending
balance, October 2, 2010
|
$
|
143,475
|
Other
intangible assets consisted of the following (in thousands):
October 2,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
Amortizable
intangible assets:
|
||||||||
Customer
relationships
|
$
|
74,727
|
$
|
70,468
|
||||
Non-compete
agreements
|
1,433
|
1,025
|
||||||
Total
amortizable intangible assets
|
76,160
|
71,493
|
||||||
Accumulated
amortization:
|
||||||||
Customer
relationships
|
55,268
|
43,904
|
||||||
Non-compete
agreements
|
956
|
648
|
||||||
Total
accumulated amortization
|
56,224
|
44,552
|
||||||
Amortizable
intangible assets, net
|
$
|
19,936
|
$
|
26,941
|
The
estimated amortization expense for the three months ending December 31, 2010,
each of the following three years, and thereafter is as follows (in
thousands):
Three
months ending December 31, 2010
|
$
|
3,462
|
||
2011
|
7,998
|
|||
2012
|
6,252
|
|||
2013
|
1,049
|
|||
Thereafter
|
1,175
|
|||
Total
|
$
|
19,936
|
13
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
7.
Long-Term Debt
Long-term
debt consisted of the following (face value approximates fair value) (in
thousands):
October 2,
|
December 31,
|
|||||||
2010
|
2009
|
|||||||
First
Lien Credit Agreement:
|
||||||||
Revolving
Credit Facility
|
$
|
7,000
|
$
|
11,500
|
||||
Term
B Credit Facility, net of debt discount of $2,847
|
83,788
|
75,503
|
||||||
Term
C Credit Facility
|
19,500
|
19,500
|
||||||
110,288
|
106,503
|
|||||||
Second
Lien Credit Agreement:
|
||||||||
Term
Facility
|
25,000
|
25,000
|
||||||
Loan
Authorization Agreement
|
||||||||
Holdings
Revolving Facility
|
30,258
|
28,666
|
||||||
Total
debt
|
165,546
|
160,169
|
||||||
Less
current portion
|
33,048
|
33,006
|
||||||
Long-term
debt, net of current portion
|
$
|
132,498
|
$
|
127,163
|
Future
maturities of long-term debt, including $2,847 of debt discount, are as
follows (in thousands):
Three
months ending December 31, 2010
|
$
|
30,956
|
||
2011
|
2,790
|
|||
2012
|
134,647
|
|||
Total
|
$
|
168,393
|
First
Lien Credit Agreement
The
Company is party to the First Lien Credit Agreement, dated September 27, 2007
(the “First Lien Credit Agreement”), which provides for a First Lien Revolving
Credit Facility (the “Revolving Credit Facility”), a First Lien Term B Credit
Facility (the “Term B Credit Facility”) and a First Lien Term C Credit Facility
(the “Term C Credit Facility”). The Company entered into two amendments with the
lenders under the First Lien Credit Agreement in 2009. The first amendment, in
June 2009, modified certain covenants in return for a 1% fee and an
increase in the interest rate. The second amendment, in December 2009,
provided retroactive covenant relief for certain matters as of December 31,
2008, modified certain financial covenants through September 2012 pending
meeting the required terms for closing the amendment and provided forbearance
through February 15, 2010 until certain terms were met. These terms were
met with an infusion of equity and the closing of the Merger in
January 2010.
The
Revolving Credit Facility provides loans in a maximum amount of $20 million and
matures on September 27, 2012. In connection with the closing of an
amendment in January 2010, the interest rate is, at the Company’s option, either
a rate of one-half of 1% per annum above the Federal Funds Rate plus 5.0% for
base rate advances or the Eurodollar rate plus 6% provided that the rate will
increase 75 basis points if the Company’s Leverage Ratio (as defined in the
First Lien Credit Agreement) exceeds a certain level. Unused borrowings under
the Revolving Credit Facility are subject to a 1% commitment fee per annum. As
of October 2, 2010, the Company had drawn $7.0 million on the Revolving Credit
Facility. At October 2, 2010 and December 31, 2009, $7.0 million and $11.5
million, respectively, of borrowings under the Revolving Credit Facility are
classified as long-term debt because the Company intends that such amounts would
remain outstanding under this agreement for an uninterrupted period extending
beyond one year from the balance sheet date. Borrowings on the Revolving
Credit Facility are secured by the assets of the Company.
The Term
B Credit Facility as amended provides for borrowings up to $93 million,
including the Third Incremental Term B Facility described below. As of
October 2, 2010, $86.6 million (including the debt discount of $2,847) was
outstanding under the Term B Credit Facility. The term loan provides for
interest, depending on the Company’s election, with interest at a rate of
one-half of 1% per annum above the Federal Funds Rate plus 5.5% or Eurodollar
plus 6.5%. At December 31, 2009, in connection with the closing of an
amendment in January 2010, the interest rate increases by 75 basis points
if the Company’s Leverage Ratio exceeds a certain level. The loan under the Term
B Credit Facility is to be amortized from December 31, 2007 until maturity.
The Term B Credit Facility is secured by substantially all of the assets of the
Company.
14
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
On July
16, 2010, the Company amended its existing Term B Credit Facility to provide a
Third Incremental Term B Facility of up to $20.0 million. Upon closing of
the amendment, $15.0 million of the facility was made available to the
Company. The additional $5.0 million of the facility shall be available to
the Company as early as November upon the achievement of certain EBITDA levels
and covenant compliance as defined in the amendment. The proceeds were
used to reduce the existing balance on the Revolving Credit Facility to support
future working capital needs. The Third Incremental Term B Facility
currently bears interest at the same rate as the prior Term B facility.
Pursuant to the terms of the amendment, the Third Incremental Term B Lenders
received warrants to purchase an aggregate of three million shares of common
stock of the Company. The warrants have an exercise price of $0.01 per
share, vested 25% upon issuance, and the remaining warrants vest ratably through
September 1, 2012. The warrants contain a cashless exercise provision and
provide for anti-dilution adjustments in the case of reclassifications,
consolidations, mergers or sales that impact the Company’s common stock.
The Company also agreed to pay to the Third Incremental Term B Lenders a
deferred fee in cash up to a maximum of $3.5 million, which will be earned by
the lenders through July 12, 2012 and is payable on March 26, 2013, or earlier
under certain circumstances contained in the amendment. The deferred fee
payable in cash will be reduced by an amount calculated based on value realized
by or ascribed to the exercise of the warrants described above.
Additionally, payment of the deferred fee in cash will result in the termination
of the related warrants. As a result of the contractual relationship
between the exercise of the warrants and the payment of the deferred fee, the
Company considers them to be separate financial instruments that should be
measured at fair value and recorded as a discount to the debt issued under the
amendment, and classified as liabilities in the accompanying condensed
consolidated balance sheet. The estimated fair value of this instrument is
$3.2 million, which was calculated using probability-weighted discounted cash
flows for the deferred fee and the fair value of the related warrants based on
the likelihood of satisfying the ultimate liability in either cash or shares of
common stock, or a combination of both. During the three months
ended October 2, 2010, the Company recognized additional interest expense of
$0.3 million related to the accretion of both the debt, net of discount, and the
deferred fee liability to their estimated maturity values.
The Term
C Credit Facility is for $19.5 million which is the outstanding balance as of
October 2, 2010 and December 31, 2009. The interest rate was amended to 16.25%
on $8.0 million of the Term C Credit Facility for the period from April 1,
2009 to December 31, 2009 in connection with the December 2009 amendment
and 13.08% on the remaining $11.5 million. Effective January 1, 2010,
the interest rate on the $8.0 million increased to 16.5%.
The First
Lien Credit Agreement, as amended, includes various financial covenants, the
most significant of which requires that the Company maintain certain quarterly
financial ratios and limit annual capital expenditures. On June 16, 2010, the
Company entered into an amendment with the First Lien Debt Holders to amend
certain of these financial covenants. The required quarterly financial
ratios become more restrictive to the Company over time. The Company’s future
compliance with quarterly financial ratios is dependent on the Company’s ability
to generate profits in excess of required amounts, which is subject to the risks
and uncertainties surrounding the Company’s business. The Company
was in compliance with all covenants at October 2, 2010.
Letter
of Credit Transaction
On March
31, 2010, the Company entered into a Senior Secured Letter of Credit Facility
arrangement (the “LOC Facility”), via an amendment to the First Lien Credit
Agreement (the “Amendment”), by and among UniTek Acquisition, Inc., a Delaware
company and indirect wholly owned subsidiary of the Company (“Acquisition”),
UniTek Midco, Inc., a Delaware company and indirect wholly owned subsidiary of
the Company (“Midco”), certain subsidiaries of Acquisition as guarantors, the
initial lenders under the LOC Facility, and Royal Bank of Canada, as
administrative agent and collateral agent for the lenders. The Amendment
establishes an incremental $12 million revolving tranche (the “Incremental
Tranche”) added to the credit facilities established by the First Lien Credit
Agreement. The full amount of Incremental Tranche is solely available to
Acquisition for the issuance of letters of credit in support of Acquisition’s
obligations under certain insurance policies and other general corporate
purposes. The LOC Facility charges a 1.3333% per month cash fee payable on
issued but unfunded letters of credit and a 1.0% per annum cash fee on the daily
average unfunded amount of the LOC Facility. Funded letters of credit will
carry an interest rate of LIBOR plus 6.75% per annum with a 2.5% LIBOR
floor. There was $6.0 million in letters of credit issued against the LOC
Facility as of October 2, 2010.
15
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Second
Lien Credit Agreement
The
Company is party to the Second Lien Credit Agreement, dated September
27, 2007 (the “Second Lien Credit Agreement”), which provides for a $25 million
term facility that matures on September 27, 2012 and is repayable in full
at that date. The Company entered into two amendments with the lenders under the
Second Lien Credit Agreement in 2009. The first amendment, in May 2009,
modified certain covenants in return for a 1% fee and an increase in the
interest rate. The second amendment, in December 2009, modified certain
financial covenants through September 2012 pending meeting the required
terms for closing the amendment. These terms were met with an infusion of equity
and the closing of the Merger. The interest rate at December 31, 2009
was the greater of 15.0% per annum and the Eurodollar rate plus 7.25%. The
second amendment included a change in the interest rate to the current rate,
which is the greater of 15.75% per annum and the Eurodollar rate plus 7.25%.
Interest is due quarterly beginning on December 31, 2007 until maturity.
The Second Lien Credit Agreement is secured by substantially all of the assets
of the Company. The Second Lien Credit Agreement includes various
covenants, the most significant of which requires the Company to maintain
certain quarterly financial ratios and limits capital expenditures. The required
quarterly financial ratios become more restrictive to the Company over time. The
Company’s future compliance with quarterly financial ratios is dependent on its
ability to generate profits in excess of required amounts, which is subject to
the risks and uncertainties surrounding the Company’s business. The
Company was in compliance with all covenants at October 2, 2010.
Loan
Authorization Agreement
Holdings
entered into a Loan Authorization Agreement dated as of September 25, 2007 (the
“Loan Authorization Agreement”), with BMO Capital Markets Financing, Inc.
(“BMO”). The Loan Authorization Agreement established an $18 million
revolving credit facility (the “Holdings Revolving Facility”), and amounts
borrowed against the Holdings Revolving Facility are evidenced by a promissory
note. Interest is calculated based on the prime commercial rate, as
defined in the Holdings Revolving Facility. The average interest rates
during the three and nine months ended October 2, 2010 and October 3, 2009, were
7.25% and 5.5%, respectively. Interest on the borrowings are payable quarterly,
at the option of the Company, in cash or by adding such interest to the unpaid
principal balance of the Holdings Revolving Facility. All interest incurred to
date has been added to the principal balance of the Holdings Revolving
Facility. Accrued and unpaid interest was $5.3 million and $3.7 million at
October 2, 2010 and December 31, 2009, respectively. The outstanding
principal of the Loan Authorization Agreement and any unpaid interest
accumulated to date are payable and mature on demand of BMO. On March 24,
2008 and September 15, 2009, Holdings entered into amendments to the Loan
Authorization Agreement that increased the amount of maximum credit under the
Holdings Revolving Facility to $28 million and $35 million, respectively.
The obligations under the Loan Authorization Agreement are guaranteed by two
funds of HM Capital Partners LP (“HM LP”) (see Note 12). There are no
financial covenants included in the Loan Authorization Agreement.
Borrowings under the Loan Authorization Agreement are not secured or
guaranteed by any assets of the Company and its subsidiaries.
8.
Derivative Financial
Instruments
The
Company manages interest rate exposure by using derivative instruments to reduce
the variability of interest payments for variable-rate debt. The Company is also
required to maintain interest rate hedge agreements covering a notional amount
of not less than 50% of the debt outstanding under the First Lien Credit
Agreement for the first three years of the agreement.
On
November 29, 2007, the Company entered into an interest rate collar
agreement with an aggregate notional principal amount of $65 million and a
maturity date of November 30, 2010. The collar is used to hedge the
required portion of the Company’s First Lien Credit Agreement and consists of a
cap and a floor with a strike of 5.50% and 2.98%, respectively. The strike is
indexed to three-month LIBOR. The change in the fair value of the derivative is
reported as a component of interest expense. The amount of interest expense
recorded for the interest rate collar for the three months ended October 2, 2010
and October 3, 2009 was $(0.1) million and $0.3 million, respectively,
which includes changes in the fair value of the collar liability. The amount of
interest expense recorded for the interest rate collar for the nine months ended
October 2, 2010 and October 3, 2009 was $(1) thousand and $0.8 million,
respectively, which includes changes in the fair value of the collar
liability. The fair value of the interest rate collar liability was $0.3
million and $1.5 million at October 2, 2010 and December 31, 2009,
respectively, and is recorded as a component of accrued expenses in the
condensed consolidated balance sheets.
9.
Stockholders’ Equity
The
Company is authorized to issue 220 million shares, consisting of (i)
200 million shares of common stock, par value $0.00002 per share and (ii) 20
million shares of preferred stock, par value $0.00002 per share. At the
Effective Time, each outstanding share of Holdings Common Stock (prior to
adjusting for the one-for-28 reverse stock-split effected on November 9, 2010)
was converted to the right to receive 0.012 shares of Berliner Series A
Preferred Stock, in addition to 0.4 shares of Berliner Common Stock. On
June 4, 2010, each share of Berliner Series A Preferred Stock was automatically
converted into 50 shares of UniTek Common Stock upon the filing and
effectiveness of an amendment to the Company’s certificate of
incorporation.
16
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
In
conjunction with the Merger, Berliner designated approximately 0.7 million
shares of Berliner Series B Preferred Stock. At the Effective Time, each
share of Holdings Preferred Stock was converted to the right to receive 0.02
shares of Berliner Series B Preferred Stock. The Holdings Preferred Stock
was issued in January 2010, prior to the Merger, in an amount of $12.5 million
for 12.5 million shares. The Berliner Series B Preferred Stock ranks
senior to all existing classes of capital stock of Berliner. The Berliner
Series B Preferred Stock has an optional conversion feature to UniTek Common
Stock, such that the actual conversion ratio would currently be 50 shares of
UniTek Common Stock for each share of Berliner Series B Preferred Stock, subject
to standard anti-dilution adjustments for stock splits, dividends and similar
events. In addition, in the event of liquidation, dissolution or winding
up of UniTek, the Berliner Series B Preferred Stock has a liquidation
preference. As there are certain events that are considered “deemed
liquidation” events, such as a merger or consolidation or similar transaction
resulting in a change of control (as more fully defined in the Certificate of
Designation, Preferences and Rights of Series B Convertible Preferred Stock
filed with the Company’s Form 8-K on January 27, 2010) which can be influenced
by the holders of the Berliner Series B Preferred Stock, the Berliner Series B
Preferred Stock has been reflected as mezzanine equity on the accompanying
consolidated balance sheet. At October 2, 2010, there were approximately
0.27 million shares of Berliner Series B Preferred Stock outstanding with a
liquidation value of approximately $26.5 million.
On August
6, 2010, a requisite majority of the Company’s stockholders approved a reverse
split of the Company’s common stock at a ratio not less than one-to-eight and
not more than one-to-30. The Board approved a one-to-28 split in
conjunction with the equity offering discussed in Note 17. The number of
shares and earnings per share included in this Form 10-Q have been adjusted to
reflect this reverse split that occurred on November 9, 2010 in conjunction with
the closing of the equity offering.
10.
Warrants
At
October 2, 2010, the Company had outstanding warrants to purchase up to
approximately 0.3 million shares of its common stock. The warrants exercise
prices range from $0.28 to $70.00 per share and expire from June 21, 2011 to
July 16, 2020. The weighted average price is $41.91 per
share.
11.
Stock Options
At
October 2, 2010, the Company had outstanding stock options to employees to
purchase up to approximately 0.6 million shares of its common stock. The
stock option exercise prices range from $8.40 to $38,836 per share and expire
from October 3, 2010 to January 4, 2020. The weighted average exercise
price per share is $64.76 per share.
12.
Related Party Transactions
The
Company maintains certain policies and procedures for the review, approval, and
ratification of related-party transactions to ensure that all transactions with
selected parties are fair, reasonable and in the Company’s best interest. All
significant relationships and transactions are separately identified by
management if they meet the definition of a related party or a related-party
transaction. Related-party transactions include transactions that occurred
during the year, or are currently proposed, in which the Company was or will be
a participant and in which any related person had or will have a direct or
indirect material interest. All related-party transactions are reviewed,
approved and documented by the appropriate level of the Company’s management and
if necessary, the Board of Directors or a committee thereof, in accordance with
these policies and procedures.
In
connection with the Merger, on January 27, 2010, the Company entered into an
Amended and Restated Monitoring and Oversight Agreement (the “M&O
Agreement”) with HM LP. Pursuant to the M&O Agreement, the
Company will pay HM LP an annual fee of $0.7 million in calendar year 2010, $0.7
million in calendar year 2011 and $0.8 million in calendar year 2012 and for
each calendar year thereafter, in consideration for HM LP’s provision of
financial oversight and monitoring services to the Company as they may be
requested from time to time. Each annual fee mentioned above will be
payable in equal quarterly installments on March 31, June 30, September 30 and
December 31 of the applicable year; provided, that such payment will not be paid
unless the Total Leverage Ratio is below 3.50:1.00 at the end of the applicable
quarter, and if not paid, each such payment will accrue until the Total Leverage
Ratio is below 3.50:1.00 at any subsequent quarter at which time all accrued and
unpaid payments will become due and payable.
In
conjunction with the Merger, the Company entered into a Credit and Support
Agreement with two funds of HM LP that are parties to the guaranty of the
Holdings Revolving Facility. The Credit and Support Agreement provides for
the payment of a credit support fee for the continued guaranty of the Company’s
performance under the Holdings Revolving Facility. The credit support fee
is equal to 6% (or the maximum contract rate of interest permitted by law if
less than 6%) on the aggregate of the outstanding principal and accrued interest
added to the principal. The credit support fee is payable quarterly in
cash or, at the Company’s option in shares of Series B Convertible Preferred
Stock. For the three and nine months ended October 2, 2010, the Company
recorded $0.4 million and $1.2 million, respectively, for the credit support fee
that is included in interest expense. The corresponding related party
liability is included with accrued liabilities at October 2, 2010 and will
subsequently be paid in cash with proceeds from the equity offering (See Note
17).
17
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
13.
Legal Proceedings
From time
to time, the Company is a party to various lawsuits, claims, or other legal
proceedings and is subject, due to the nature of its business, to governmental
agency oversight, audits, investigations and review. Such actions may seek,
among other things, compensation for alleged personal injury, breach of
contract, property damage, punitive damages, civil penalties or other losses, or
injunctive or declaratory relief. Under such governmental audits and
investigations, the Company may become subject to fines and penalties or other
monetary damages. With respect to such lawsuits, claims, proceedings and
governmental investigations and audits, the Company accrues reserves when it is
probable a liability has been incurred and the amount of loss can be reasonably
estimated. The Company does not believe any of the pending proceedings,
individually or in the aggregate, will have a material adverse effect on its
consolidated results of operations, cash flows or financial
condition.
14.
Fair Value Measurements
FASB
accounting guidance defines fair value as the price that would be received to
sell an asset or paid to transfer a liability in an orderly transaction between
market participants at the measurement date. The standard outlines a valuation
framework and creates a fair value hierarchy in order to increase the
consistency and comparability of fair value measurements and the related
disclosures. In determining fair value we use quoted prices and observable
inputs. Observable inputs are inputs that market participants would use in
pricing the asset or liability based on market data obtained from sources
independent of us. The fair value hierarchy is broken down into three levels
based on the source of inputs as follows:
|
o
|
Level 1—Valuations based on
unadjusted quoted prices in active markets for identical assets or
liabilities.
|
|
o
|
Level 2—Valuations based on
observable inputs and quoted prices in active markets for similar assets
and liabilities.
|
|
o
|
Level 3—Valuations based on
inputs that are unobservable and models that are significant to the
overall fair value
measurement.
|
The
following table summarizes our financial assets and liabilities measured at fair
value on a recurring basis as of October 2, 2010 and December 31, 2009 (in
thousands):
Fair Value Measurements at October 2, 2010
|
||||||||||||||||
Fair Value at
October 2,
2010
|
Quoted Prices
in Active
Markets
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Significant
Unobservable Inputs
(Level 3)
|
|||||||||||||
Assets
|
||||||||||||||||
Cash
and cash equivalents
|
$
|
1,688
|
$
|
1,688
|
$
|
-
|
$
|
-
|
||||||||
Total
|
$
|
1,688
|
$
|
1,688
|
$
|
-
|
$
|
-
|
||||||||
Liabilities
|
||||||||||||||||
Interest-rate
collar
|
$
|
322
|
$
|
-
|
$
|
322
|
$
|
-
|
||||||||
Total
|
$
|
322
|
$
|
-
|
$
|
322
|
$
|
-
|
18
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
Fair Value Measurements at December 31, 2009
|
||||||||||||||||
Fair Value at
December 31,
2009
|
Quoted Prices
in Active
Markets
(Level 1)
|
Significant Other
Observable Inputs
(Level 2)
|
Significant
Unobservable Inputs
(Level 3)
|
|||||||||||||
Assets
|
||||||||||||||||
Cash
and cash equivalents
|
$
|
2,263
|
$
|
2,263
|
$
|
-
|
$
|
-
|
||||||||
Total
|
$
|
2,263
|
$
|
2,263
|
$
|
-
|
$
|
-
|
||||||||
Liabilities
|
||||||||||||||||
Interest-rate collar
|
$
|
1,548
|
$
|
-
|
$
|
1,548
|
$
|
-
|
||||||||
Total
|
$
|
1,548
|
$
|
-
|
$
|
1,548
|
$
|
-
|
Derivatives
On
November 29, 2007, the Company entered into an interest-rate collar
agreement with an aggregate notional principal amount of $65 million. The collar
is used to hedge the required portion of the First Lien Credit Agreement. The
fair value of the interest-rate collar liability was $0.3 million and $1.5
million at October 2, 2010 and December 31, 2009, respectively. The Company
utilized a present value technique to fair value each derivative contract. The
Company calculated the present value of future expected cash flows using a
discount rate commensurate with the underlying risk of the debtor.
15.
Discontinued Operations
Discontinued
operations consist of the satellite markets provided to DIRECTV as part of the
market swaps, cable and wireless markets that were exited in 2009 and 2010 for
various operations reasons. The following table summarizes the results for the
Company’s discontinued operations for the three and nine months ended October 2,
2010 and October 3, 2009 (in thousands):
Three Months Ended
|
Nine Months Ended
|
|||||||||||||||
October 2,
|
October 3,
|
October 2,
|
October 3,
|
|||||||||||||
2010
|
2009
|
2010
|
2009
|
|||||||||||||
Revenues
|
$
|
-
|
$
|
532
|
$
|
253
|
$
|
11,767
|
||||||||
Cost
of revenues
|
2
|
690
|
682
|
10,692
|
||||||||||||
Gross
margin
|
(2
|
)
|
(158
|
)
|
(429
|
)
|
1,075
|
|||||||||
Depreciation
and amortization
|
-
|
62
|
32
|
631
|
||||||||||||
Operating
income (loss)
|
(2
|
)
|
(220
|
)
|
(461
|
)
|
444
|
|||||||||
Gain
on sale of assets
|
-
|
-
|
-
|
(111
|
)
|
|||||||||||
Income
(loss) from discontinued operations before income taxes
|
(2
|
)
|
(220
|
)
|
(461
|
)
|
555
|
|||||||||
Tax
benefit from discontinued operations
|
-
|
-
|
-
|
-
|
||||||||||||
Income
(loss) from discontinued operations
|
$
|
(2
|
)
|
$
|
(220
|
)
|
$
|
(461
|
)
|
$
|
555
|
19
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
16.
Segment Reporting
The
Company reports its financial results on the basis of two reportable segments:
(1) fulfillment and (2) engineering and construction. The segments are
determined in accordance with how management views and evaluates our business.
Selected segment financial information for the three and nine months ended
October 2, 2010 and October 3, 2009, is presented below (in
thousands):
Three Months Ended
|
||||||||||||||||||||||||
October 2, 2010
|
October 3, 2009
|
|||||||||||||||||||||||
Fulfillment
|
Engineering &
Construction
|
Total
|
Fulfillment
|
Engineering &
Construction
|
Total
|
|||||||||||||||||||
Revenue
|
$
|
73,758
|
$
|
36,363
|
$
|
110,121
|
$
|
63,426
|
$
|
9,153
|
$
|
72,579
|
||||||||||||
Cost
of revenue
|
59,562
|
32,371
|
91,933
|
52,643
|
8,684
|
61,327
|
||||||||||||||||||
Gross
profit
|
14,196
|
3,992
|
18,188
|
10,783
|
469
|
11,252
|
||||||||||||||||||
Selling,
general and administrative expenses
|
6,229
|
3,584
|
9,813
|
4,249
|
1,161
|
5,410
|
||||||||||||||||||
Depreciation
and amortization
|
4,887
|
1,312
|
6,199
|
4,291
|
3,060
|
7,351
|
||||||||||||||||||
Operating
income (loss)
|
$
|
3,080
|
$
|
(904
|
)
|
$
|
2,176
|
$
|
2,243
|
$
|
(3,752
|
)
|
$
|
(1,509
|
)
|
|||||||||
Interest
expense
|
5,972
|
4,897
|
||||||||||||||||||||||
Other
expense, net
|
29
|
59
|
||||||||||||||||||||||
Loss
from continuing operations before income taxes
|
$
|
(3,825
|
)
|
$
|
(6,465
|
)
|
Nine months Ended
|
||||||||||||||||||||||||
October 2, 2010
|
October 3, 2009
|
|||||||||||||||||||||||
Fulfillment
|
Engineering &
Construction
|
Total
|
Fulfillment
|
Engineering &
Construction
|
Total
|
|||||||||||||||||||
Revenue
|
$
|
201,969
|
$
|
102,959
|
$
|
304,928
|
$
|
177,883
|
$
|
32,608
|
$
|
210,491
|
||||||||||||
Cost
of revenue
|
165,066
|
92,704
|
257,770
|
151,605
|
29,783
|
181,388
|
||||||||||||||||||
Gross
profit
|
36,903
|
10,255
|
47,158
|
26,278
|
2,825
|
29,103
|
||||||||||||||||||
Selling,
general and administrative expenses
|
16,828
|
10,704
|
27,532
|
14,038
|
4,168
|
18,206
|
||||||||||||||||||
Depreciation
and amortization
|
16,189
|
3,723
|
19,912
|
11,628
|
9,156
|
20,784
|
||||||||||||||||||
Operating
income (loss)
|
$
|
3,886
|
$
|
(4,172
|
)
|
$
|
(286
|
)
|
$
|
612
|
$
|
(10,499
|
)
|
$
|
(9,887
|
)
|
||||||||
Interest
expense
|
17,385
|
13,202
|
||||||||||||||||||||||
Other
expense, net
|
175
|
104
|
||||||||||||||||||||||
Loss
from continuing operations before income taxes
|
$
|
(17,846
|
)
|
$
|
(23,193
|
)
|
20
UniTek
Global Services, Inc. and Subsidiaries
Notes
to Condensed Consolidated Financial Statements
(Unaudited)
At the
quarter ended October 2, 2010, the total assets of the fulfillment segment were
$175.6 million and the engineering and construction segment were $98.8
million. This compares to $174.4 million and $57.4 million at December 31,
2009 for the fulfillment segment and the engineering and construction segment,
respectively. The increase of $1.2 million in the assets of the
fulfillment segment was primarily from higher working capital. The
increase of $41.4 million in the engineering and construction assets compared to
December 31, 2009 is primarily the $45.1 million of assets from the operations
of Berliner which have been included in the Company’s consolidated results since
the date of the Merger, offset by changes in working capital.
17.
Subsequent Events
The
Company evaluated all subsequent events through the date that the condensed
consolidated financial statements were issued.
On
October 29, 2010, the Company filed an information statement stating that a
requisite majority of its stockholders have approved a reverse split of the
Company’s common stock at a ratio of one-to-two. The Company expects this
reverse split to become effective in the fourth quarter of 2010. As of the
filing date of these financial statements, this reverse split has not
occurred.
On
November 10, 2010, the Company’s Registration Statement on Form S-1, filed with
the SEC on August 16, 2010, and as amended on October 28, 2010, for the purpose
of raising additional capital was declared effective by the SEC. On
November 16, 2010, the Company completed an underwritten public offering of
19,000,000 shares of common stock at a price of $4.75 per share. After
deducting underwriting fees and estimated offering costs, the Company generated
net proceeds of approximately $82.6 million. The Company expects to use
the net proceeds from the offering to repay approximately $61.9 million of
indebtedness, with the remaining net proceeds to be used for general corporate
purposes, including for working capital to support the execution of the
Company’s backlog. The
amounts outstanding under the Holdings Revolving Facility will be paid in full
terminating the Loan Authorization Agreement and the related Credit and Support
Agreement.
Costs
directly associated with the offering were capitalized and recorded as deferred
offering costs in other assets prior to the closing of the offering. We
filed our initial Registration Statement on Form S-1 with the SEC on August 16,
2010, which was declared effective on November 10, 2010. Deferred offering
costs were approximately $0.5 million as of October 2, 1010, which will be
reclassified to additional paid-in capital upon the closing of the
offering.
In
connection with the closing of the offering on November 16, 2010 and as amended
on October 28, 2010, the parties to the M&O Agreement have agreed to
terminate the M&O Agreement and the Company has agreed to pay a termination
fee of $4.3 million (payable in cash or stock at the Company’s discretion) that
would only become payable upon certain conditions being met as outlined in the
agreement. As of the date of this filing, these conditions have not been
met.
Also in
connection with the offerings, the Company issued 5,972,125 shares of common
stock in exchange for all of the outstanding shares of Series B. The
number of shares considered the two-for-one liquidation preference attributable
to the Series B Convertible Preferred Stock as well a price per share of
common stock equal to a 6.5% discount to the $4.75 offering
price.
21
Item
2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Cautionary
Statement for the Purposes of the “Safe Harbor” Provisions of the Private
Securities Litigation Reform Act of 1995
Certain
information included in this report and in our other reports, SEC filings,
statements and presentations is forward-looking within the meaning of the
Private Securities Litigation Reform Act of 1995, including, but not limited to,
statements concerning our anticipated operating results, financial resources,
growth and expansion and the ability to obtain new contracts. Such
forward-looking information involves important risks and uncertainties that
could significantly affect actual results and cause them to differ materially
from expectations expressed herein and in other reports, SEC filings, statements
and presentations. Therefore, this report should only be read in
context described under the section entitled “Note Regarding Forward-Looking
Statements” below.
Note
Regarding Forward-Looking Statements
The SEC
encourages companies to disclose forward-looking information so that investors
and stockholders can better understand a company’s future prospects and make
investment decisions. “Forward-looking” statements appear throughout this
report. We have based these forward-looking statements on our current
expectations and projections about future events. We have attempted,
wherever possible, to identify such statements by using words such as
“anticipates,” “estimates,” “expects,” “projects,” “intends,”
“plans,” “believes” and words and terms of similar substance in connection with
any discussions of future operating or financial performance.
The
important factors listed in Part II, Item 1A of this Quarterly Report
on Form 10-Q under the heading entitled “Risk Factors,” as well as all other
cautionary language in this report, provide examples of risks, uncertainties and
events that may cause actual results to differ materially from the expectations
described in these “forward-looking” statements. It is important to note
that the occurrence of the events described in these considerations and in the
Risk Factors section in this report could have an adverse effect on our
business, results of operations or financial condition.
Forward-looking
statements in this report include, without limitation, statements
concerning:
|
§
|
our financial condition and
strategic direction;
|
|
§
|
our future capital requirements
and our ability to satisfy our capital
needs;
|
|
§
|
the potential generation of
future revenue and or
earnings;
|
|
§
|
our ability to adequately staff
our service offerings;
|
|
§
|
opportunities for us from new and
emerging technologies in our
industries;
|
|
§
|
our ability to obtain additional
financing;
|
|
§
|
our growth
strategy;
|
|
§
|
trends in the telecommunications,
satellite and cable
industries;
|
|
§
|
key drivers of change in our
business;
|
|
§
|
our competitive position and the
competitive landscape; and
|
|
§
|
other statements that contain
words like “believe,” “anticipate,” “expect” and similar
expressions are also used to identify forward-looking
statements.
|
It is
important to note that all of our forward-looking statements are subject to a
number of risks, assumptions and uncertainties, such as (and in no particular
order):
§
|
risks related to the market for
our shares;
|
§
|
risks related to a concentration
of revenue from a small number of
customers;
|
§
|
risks associated with competition
in the telecommunications, satellite and cable
industries;
|
§
|
risks that we will not be able to
generate positive cash flow;
|
§
|
risks that we may not be able to
obtain additional financing;
and
|
§
|
risks that we will be unable to
adequately staff our service
offerings.
|
This list
is only an example of the risks that may affect the forward-looking statements.
If any of these risks or uncertainties materialize (or if they fail to
materialize), or if the underlying assumptions are incorrect, then actual
results may differ materially from those projected in the forward-looking
statements.
Additional
factors that could cause actual results to differ materially from those
reflected in the forward-looking statements include, without limitation, those
discussed elsewhere in this report and the Transition Report. It is
important not to place undue reliance on these forward-looking statements, which
reflect our analysis, judgment, belief or expectation only as of the date of
this report. We undertake no obligation to publicly revise these
forward-looking statements to reflect events or circumstances that arise after
the date of this report.
22
Summary
of Operating Results
The
following table presents consolidated selected financial information. The
statement of operations data for the three and nine months ended October 2,
2010, and October 3, 2009, has been derived from our unaudited condensed
consolidated financial statements that, in the opinion of management, include
all adjustments, consisting only of normal recurring adjustments, necessary to
state fairly the data for such period. We operate in two reportable
segments: (1) Fulfillment and (2) Engineering and Construction.
In the
Merger, Holdings is the accounting acquirer with Berliner the legal acquirer and
registrant. Upon the completion of the Merger, Berliner changed its fiscal
year end from June 30 to December 31. Berliner filed a Transition Report
on Form 10-K on March 31, 2010. As the accounting acquirer, Holdings’
prior year results are presented for comparison purposes. The results for
the three and nine months ending October 2, 2010 include the results of Holdings
for the entire periods and the results of Berliner after the January 27, 2010
Merger date. The results for the three and nine months ended October 3,
2009 include only the results of Holdings.
Results
of Operations – Three Months Ended October 2, 2010 Compared to Three Months
Ended October 3, 2009
The
following table presents, for the periods indicated, a summary of our condensed
consolidated statement of operations information.
Three Months Ended
|
||||||||
October 2, 2010
|
October 3, 2009
|
|||||||
(in thousands, except per share
data)
|
(unaudited)
|
(unaudited)
|
||||||
Revenues
|
$ | 110,121 | $ | 72,579 | ||||
Cost
of revenues
|
91,933 | 61,327 | ||||||
Gross
profit
|
18,188 | 11,252 | ||||||
Selling,
general and administrative expenses
|
9,813 | 5,410 | ||||||
Depreciation
and amortization
|
6,199 | 7,351 | ||||||
Operating
income (loss)
|
2,176 | (1,509 | ) | |||||
Interest
expense
|
5,972 | 4,897 | ||||||
Other
expense, net
|
29 | 59 | ||||||
Loss
from continuing operations before income taxes
|
(3,825 | ) | (6,465 | ) | ||||
Income
tax expense
|
(48 | ) | (297 | ) | ||||
Loss
from continuing operations
|
(3,873 | ) | (6,762 | ) | ||||
Loss
from discontinued operations
|
(2 | ) | (220 | ) | ||||
Net
loss
|
$ | (3,875 | ) | $ | (6,982 | ) | ||
Net
loss per share- basic and diluted:
|
||||||||
Continuing
operations
|
$ | (0.79 | ) | $ | (1.73 | ) | ||
Discontinued
operations
|
$ | 0.00 | $ | (0.06 | ) | |||
Weighted
average shares of common stock outstanding (basic and
diluted)
|
4,885 | 3,896 | ||||||
Adjusted
EBITDA (1)
|
$ | 9,254 | $ | 6,479 |
(1)
See description of “Adjusted EBITDA” and “Adjusted Pro Forma EBITDA”
below.
23
The
following table presents, for the dates indicated, a summary of our condensed
consolidated balance sheet information.
(in thousands)
|
October 2,
2010
|
December 31,
2009
|
||||||
Current
assets
|
$ | 85,410 | $ | 39,206 | ||||
Total
assets
|
274,351 | 231,841 | ||||||
Current
liabilities
|
101,320 | 80,921 | ||||||
Long-term
debt and capital lease obligations, net of current portion and debt
discount
|
133,312 | 131,407 | ||||||
Series
B Convertible Preferred Stock
|
13,265 | - | ||||||
Stockholders’
equity
|
23,268 | 19,513 |
Revenues
The
following table sets forth information regarding our revenues by segment for the
three months ended October 2, 2010 and October 3, 2009.
Three Months Ended
(unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October 2, 2010
|
October 3, 2009
|
||||||||||||||||||
Amount
|
% of Revenues
|
Amount
|
% of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$ | 73,758 | 67.0 | % | $ | 63,426 | 87.4 | % | $ | 10,332 | ||||||||||
Engineering
and Construction
|
36,363 | 33.0 | % | 9,153 | 12.6 | % | 27,210 | |||||||||||||
Total
|
$ | 110,121 | 100 | % | $ | 72,579 | 100 | % | $ | 37,542 |
We had
revenue of $110.1 million for the three months ended October 2, 2010, compared
to $72.6 million for the three months ended October 3, 2009. This
represents an increase of $37.5 million, or 51.7%. Of the revenue gain, $23.5
million reflects the operations of Berliner which have been included in our
consolidated results since the date of the Merger and is included in the
engineering and construction segment.
Revenue
for the fulfillment segment increased by $10.3 million, or 16.3%, from $63.4
million for the three months ended October 3, 2009 to $73.7 million for the
three months ended October 2, 2010. Revenue from the broadband cable
acquisitions we completed in the fourth quarter of fiscal 2009 accounted for
$6.1 million of this additional revenue. The remaining portion of the
increase is attributable to growth in our existing fulfillment services
businesses.
Revenue
for the engineering and construction segment increased $27.2 million, or 297.3%,
from $9.2 million for the three months ended October 3, 2009 to $36.4 million
for the three months ended October 2, 2010. The increase is primarily
related to the operations of Berliner which have been included in our
consolidated results since the date of the Merger.
Cost
of Revenues
The
following table sets forth information regarding our cost of revenues by segment
for the three months ended October 2, 2010 and October 3, 2009.
Three Months Ended
(unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October 2, 2010
|
October 3, 2009
|
||||||||||||||||||
Amount
|
% of Revenues
|
Amount
|
% of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$ | 59,562 | 80.8 | % | $ | 52,643 | 83.0 | % | $ | 6,919 | ||||||||||
Engineering
and Construction
|
32,371 | 89.0 | % | 8,684 | 94.9 | % | 23,687 | |||||||||||||
Total
|
$ | 91,933 | 83.5 | % | $ | 61,327 | 84.5 | % | $ | 30,606 |
Our cost
of revenue was $91.9 million and $61.3 million for the three months ended
October 2, 2010 and October 3, 2009, respectively. This represents an
increase of $30.6 million, or 49.9%, during a period when sales increased 51.7%.
Cost of revenue represents 83.5% and 84.5% of total revenue for the three months
ended October 2, 2010 and October 3, 2009, respectively. Of the cost of revenue
increase, $20.8 million is related to the operations of Berliner which have been
included in our consolidated results since the date of the Merger and is
included in the engineering and construction segment.
24
Cost of
revenue for the fulfillment segment increased $6.9 million from $52.6 million
for the three months ended October 3, 2009 to $59.5 million for the three months
ended October 2, 2010. This represents an increase of 13.1% during a period when
revenue increased by 16.3% representing operational improvements made in the
fulfillment segment, as well as the impact of volume leverage.
Cost of
revenue for the engineering and construction segment increased $23.7 million
from $8.7 million for the three months ended October 3, 2009 to $32.4 million
for the three months ended October 2, 2010. The increase is related
primarily to the operations of Berliner which have been included in our
consolidated results since the date of the Merger, combined with an increase in
volume within the wireline portion of our engineering and construction
businesses.
Gross
Profit
The
following table sets forth information regarding our gross profit by segment for
the three months ended October 2, 2010 and October 3, 2009.
Three Months Ended
(unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October 2, 2010
|
October 3, 2009
|
||||||||||||||||||
Amount
|
% of Revenues
|
Amount
|
% of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$ | 14,196 | 19.3 | % | $ | 10,783 | 17.0 | % | $ | 3,413 | ||||||||||
Engineering
and Construction
|
3,992 | 11.0 | % | 469 | 5.1 | % | $ | 3,523 | ||||||||||||
Total
|
$ | 18,188 | 16.5 | % | $ | 11,252 | 15.5 | % | $ | 6,936 |
Our gross
profit for the three months ended October 2, 2010 was $18.2 million compared to
$11.3 million for the three months ended October 3, 2009, representing an
increase of $6.9 million, or 61.6%. Of the gross profit increase, $2.7
million is attributable to the operations of Berliner which have been included
in our consolidated results since the date of the Merger and is included in the
engineering and construction segment. Our gross profit as a percentage of
revenue was approximately 16.5% for the three months ended October 2, 2010, as
compared to 15.5% for the three months ended October 3, 2009.
For the
fulfillment segment, gross margin increased from 17.0% for the three months
ended October 3, 2009 to 19.3% for the three months ended October 2, 2010.
The increase is primarily related to the operational improvements in various
fulfillment markets and profitability improvements from the use of technology in
the field, dispatch cost reduction programs and other cost savings
initiatives.
For the
engineering and construction segment, gross margin increased from 5.1% to
11.0%. The increase is primarily attributed to the addition of the
wireless business combined with operational improvements in both the wireline
and wireless portions of the engineering and construction segment.
Selling,
General and Administrative Expenses
Selling,
general and administrative expenses (“SG&A”) for the three months ended
October 2, 2010 were $9.8 million as compared to $5.4 million for the three
months ended October 3, 2009. This represents an overall increase of $4.4
million. A portion of the increase ($1.7 million) is from the merger of
Berliner which has been included in our consolidated results since the date of
the Merger. The remaining increase in SG&A costs of $2.7 million is
attributable primarily to additional salary and personnel costs ($0.5
million), integration and transaction expenses related to the Merger ($0.5
million), an increase in our reserve for legal claims ($0.7 million) and
increased expenses related to the startup of our Canadian engineering and
construction segment operations ($0.3 million).
Adjusted
EBITDA, Adjusted Pro Forma EBITDA and Net income (loss) after certain non-cash
adjustments
Earnings
before interest, taxes, depreciation and amortization, or EBITDA, is a key
indicator used by our management to evaluate operating performance of our
company. While the adjusted EBITDA is not intended to replace any presentation
included in the consolidated financial statements under generally accepted
accounting principles, or GAAP, and should not be considered an alternative to
operating performance, we believe this measure is useful to investors in
assessing our performance in comparison with other companies in our industry.
This calculation may differ in method of calculation from similarly titled
measures used by other companies. We compensate for these limitations by relying
primarily on our GAAP results and using Adjusted EBITDA only as supplemental
information.
25
Net
income (loss) after certain non-cash adjustments is a key indicator used by our
management to evaluate operating performance of our company. While
the net (loss) after certain non-cash adjustments is not intended to replace any
presentation included in the consolidated financial statements under generally
accepted accounting principles, or GAAP, and should not be considered an
alternative to operating performance, we believe this measure is useful to
investors in assessing our performance in comparison with other companies in our
industry. Specifically,
(i) non-cash compensation expense may vary due to factors influencing the
estimated fair value of performance based rewards, estimated forfeiture rates
and amounts granted, (ii) non-cash interest expense varies depending on the
timing of amendments to our debt and changes to the debt structure and (iii)
amortization of intangible assets is impacted by the Company’s acquisition
strategy and timing of acquisitions.
A
reconciliation of adjusted pro forma EBITDA and net income (loss) after certain
non-cash adjustments to net loss for the three month periods is as follows
(amounts in thousands):
Pro
Forma
|
||||||||||||||||
Three
Months Ended
|
Three
Months Ended
|
|||||||||||||||
October
2, 2010
|
October
3, 2009
|
October
2, 2010
|
October
3, 2009
|
|||||||||||||
Net
loss
|
$
|
(3,875
|
)
|
$
|
(6,982
|
)
|
$
|
(3,404
|
)
|
$
|
(6,982
|
)
|
||||
Berliner
pro forma net loss (a)
|
-
|
-
|
-
|
(1,370
|
)
|
|||||||||||
Non-cash
stock based compensation
|
408
|
473
|
408
|
497
|
||||||||||||
Non-cash
interest expense
|
2,144
|
1,117
|
2,144
|
1,642
|
||||||||||||
Non-cash
amortization
|
3,369
|
5,475
|
3,369
|
5,475
|
||||||||||||
Net
income (loss) after certain non-cash adjustments
|
$
|
2,046
|
$
|
83
|
$
|
2,517
|
$
|
(738)
|
||||||||
Loss
from discontinued operations
|
2
|
220
|
2
|
220
|
||||||||||||
Income
tax expense
|
48
|
297
|
48
|
(15
|
)
|
|||||||||||
Cash
interest expense
|
3,828
|
3,780
|
3,828
|
3,880
|
||||||||||||
Other
expense, non cash
|
29
|
59
|
29
|
39
|
||||||||||||
Depreciation
|
2,830
|
1,876
|
2,830
|
2,560
|
||||||||||||
Merger
transaction costs
|
471
|
164
|
-
|
164
|
||||||||||||
Adjusted
EBITDA/Adjusted pro forma EBITDA
|
$
|
9,254
|
$
|
6,479
|
$
|
9,254
|
$
|
6,110
|
(a)
|
Berliner
pro forma net loss includes additional interest and amortization resulting
from the Merger as if the Merger had occurred at the beginning of the
periods presented.
|
Adjusted
pro forma EBITDA increased by 51.5% to $9.3 million for the three months ended
October 2, 2010 from $6.1 million for the three months ended October 3,
2009. The fulfillment segment’s year over year improvement of $3.4 million
in gross profit was the main contributor to this increase. The
adjusted pro forma EBITDA improvement also includes an additional $1.9
million of year over year adjusted pro forma EBITDA growth attributable to the
wireless business. These increases in adjusted pro forma EBITDA were
partially offset by higher SG&A expenses to support both the combined
businesses and the increased revenue.
Depreciation
and Amortization
Depreciation
of fixed assets totaled approximately $2.7 million for the three months ended
October 2, 2010 compared to $1.7 million for the three months ended October 3,
2009. The increase in depreciation is attributed to the Merger ($0.3
million) and depreciation from the 2009 conversion of a portion of our fleet
from operating leases to capital leases.
Amortization
of intangible assets acquired as a result of acquisitions resulted in
amortization expense of approximately $3.5 million for the three months ended
October 2, 2010 compared to $5.7 million for the three months ended October 3,
2009. The decrease is related to the impairment of the wireline
telecommunications reporting unit in 2009 that resulted in a write-down of the
customer contracts in the fourth quarter of fiscal 2009, partially offset by
increased amortization resulting from the merger with Berliner.
Interest
Expense
We
recognized $6.0 million and $4.9 million in interest expense during the three
months ended October 2, 2010 and October 3, 2009, respectively. The
increase of $1.1 million was primarily related to $8.0 million of higher debt
($0.2 million), the credit support fee on the Holdings Revolving Facility
entered into during January 2010 ($0.4 million) and additional interest relating
to the Letter of Credit Facility entered into on March 31, 2010 ($0.3
million).
Income
Taxes
We
recorded income tax expense of $48 thousand for the three months ended October
2, 2010 and $0.3 million for the three months ended October 3, 2009.
The 2010 tax expense represents the estimated tax expense from our
Canadian operations. The 2009 tax expense is due to differences between
book and tax amortization of intangible assets.
26
At
October 2, 2010, we had net operating loss carry forwards for federal and state
income tax purposes of approximately $43 million which begin to expire in
2014 and will fully expire by 2029. Because the Company has not yet
achieved profitable operations, management believes the potential tax benefits
from the deferred tax assets do not satisfy the realization criteria set forth
in FASB ASC 740, and accordingly, has recorded a valuation allowance for the
entire net deferred tax asset.
Net
Loss
We had a
net loss of $3.9 million for the three months ended October 2, 2010, compared to
a net loss of $7.0 million for three months ended October 3, 2009. These
net losses include losses from discontinued operations of zero and $0.2 million
for the three months ended October 2, 2010 and October 3, 2009,
respectively. The losses from discontinued operations are the result of
the closure of certain cable installation locations.
27
Results
of Operations – Nine months Ended October 2, 2010 Compared to Nine months Ended
October 3, 2009
The
following table presents, for the periods indicated, a summary of our condensed
consolidated statement of operations information.
Nine
months Ended
|
||||||||
October
2, 2010
|
October
3, 2009
|
|||||||
(in
thousands, except per share data)
|
(unaudited)
|
(unaudited)
|
||||||
Revenues
|
$
|
304,928
|
$
|
210,491
|
||||
Cost
of revenues
|
257,770
|
181,388
|
||||||
Gross
profit
|
47,158
|
29,103
|
||||||
Selling,
general and administrative expenses
|
27,532
|
18,206
|
||||||
Depreciation
and amortization
|
19,912
|
20,784
|
||||||
Operating
loss
|
(286
|
)
|
(9,887
|
)
|
||||
Interest
expense
|
17,385
|
13,202
|
||||||
Other
expense, net
|
175
|
104
|
||||||
Loss
from continuing operations before income taxes
|
(17,846
|
)
|
(23,193
|
)
|
||||
Income
tax expense
|
(151
|
)
|
(1,067
|
)
|
||||
Loss
from continuing operations
|
(17,997
|
)
|
(24,260
|
)
|
||||
Income
(loss) from discontinued operations
|
(461
|
)
|
555
|
|||||
Net
loss
|
$
|
(18,458
|
)
|
$
|
(23,705
|
)
|
||
Net
loss per share- basic and diluted:
|
||||||||
Continuing
operations
|
$
|
(3.76
|
)
|
$
|
(6.23
|
)
|
||
Discontinued
operations
|
$
|
(0.10
|
)
|
$
|
0.14
|
|||
Weighted
average shares of common stock outstanding (basic and
diluted)
|
4,785
|
3,896
|
||||||
Adjusted
EBITDA (1)
|
$
|
22,662
|
$
|
13,583
|
(1) See
description of “Adjusted EBITDA” and “Adjusted Pro Forma EBITDA”
below.
Revenues
The
following table sets forth information regarding our revenues by segment for the
nine months ended October 2, 2010 and October 3, 2009.
Nine
months Ended (unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October
2, 2010
|
October
3, 2009
|
||||||||||||||||||
Amount
|
%
of Revenues
|
Amount
|
%
of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$
|
201,969
|
66.2
|
%
|
$
|
177,883
|
84.5
|
%
|
$
|
24,086
|
||||||||||
Engineering
and Construction
|
102,959
|
33.8
|
%
|
32,608
|
15.5
|
%
|
70,351
|
|||||||||||||
Total
|
$
|
304,928
|
100
|
%
|
$
|
210,491
|
100
|
%
|
$
|
94,437
|
We had
revenue of $304.9 million for the nine months ended October 2, 2010, compared to
$210.5 million for the nine months ended October 3, 2009. This represents
an increase of $94.4 million, or 44.9%. Of the revenue gain, $66.1 million
reflects the operations of Berliner which have been included in our consolidated
results since the date of the Merger and are included in the engineering and
construction segment.
Revenue
for the fulfillment segment increased by $24.1 million, or 13.5%, from $177.9
million for the nine months ended October 3, 2009 to $202.0 million for the nine
months ended October 2, 2010. Revenue from the broadband cable
acquisitions completed in the fourth quarter of fiscal 2009 accounted for
$14.5 million in additional revenue and the timing impact of the 2009 DIRECTV
market swap added $2.8 million for the nine months ended October 2, 2010.
The remaining portion of this increase is attributable to growth in our existing
fulfillment services business. These gains were partially offset by weather
issues in the first quarter of fiscal 2010 in the Northeast and Midwest portion
of the United States and lower customer promotions in the first quarter of 2010
as compared to 2009.
28
Revenue
for the engineering and construction segment increased $70.4 million, or 215.8%,
from $32.6 million for the nine months ended October 3, 2009 as compared to
$103.0 million for the nine months ended October 2, 2010. The increase is
primarily related to the operations of Berliner which have been included in our
consolidated results since the date of the Merger combined with an increase in
revenues from our wireline business of $4.3 million, or 13.2%, as a result of
increased construction activity.
Cost
of Revenues
The
following table sets forth information regarding our cost of revenues by segment
for the nine months ended October 2, 2010 and October 3, 2009.
Nine
months Ended (unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October
2, 2010
|
October
3, 2009
|
||||||||||||||||||
Amount
|
%
of Revenues
|
Amount
|
%
of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$
|
165,066
|
81.7
|
%
|
$
|
151,605
|
85.2
|
%
|
$
|
13,461
|
||||||||||
Engineering
and Construction
|
92,704
|
90.0
|
%
|
29,783
|
91.3
|
%
|
62,921
|
|||||||||||||
Total
|
$
|
257,770
|
84.5
|
%
|
$
|
181,388
|
86.2
|
%
|
$
|
76,382
|
Our cost
of revenue was $257.8 million and $181.4 million for the nine months ended
October 2, 2010 and October 3, 2009, respectively. This represents an
increase of $76.4 million, or 42.1%, during a period when sales increased 44.9%.
Cost of revenues represents 84.5% and 86.2% of total revenue for the nine months
ended October 2, 2010 and October 3, 2009, respectively. Of the cost of
revenue increase, $59.2 million is related to the operations of Berliner which
have been included in our consolidated results since the date of the Merger and
is included in the engineering and construction segment.
Cost of
revenue for the fulfillment segment increased $13.5 million from $151.6 million
for the nine months ended October 3, 2009 to $165.1 million for the nine months
ended October 2, 2010. This represents an increase of 8.9% during a period when
revenue increased by 13.5% representing operational improvements made in the
fulfillment segment, as well as the impact of volume leverage.
Cost of
revenue for the engineering and construction segment increased $62.9 million
from $29.8 million for the nine months ended October 3, 2009 to $92.7 million
for the nine months ended October 2, 2010. The increase is related
primarily to the operations of Berliner which have been included in our
consolidated results since the date of the Merger.
Gross
Profit
The
following table sets forth information regarding our gross profit by segment for
the nine months ended October 2, 2010 and October 3, 2009.
Nine
months Ended (unaudited)
|
||||||||||||||||||||
(Amounts
in thousands)
|
October
2, 2010
|
October
3, 2009
|
||||||||||||||||||
Amount
|
%
of Revenues
|
Amount
|
%
of Revenues
|
Increase
|
||||||||||||||||
Fulfillment
|
$
|
36,903
|
18.3
|
%
|
$
|
26,278
|
14.8
|
%
|
$
|
10,625
|
||||||||||
Engineering
and Construction
|
10,255
|
10.0
|
%
|
2,825
|
8.7
|
%
|
$
|
7,430
|
||||||||||||
Total
|
$
|
47,158
|
15.5
|
%
|
$
|
29,103
|
13.8
|
%
|
$
|
18,055
|
Our gross
profit for the nine months ended October 2, 2010 was $47.2 million compared to
$29.1 million for the nine months ended October 3, 2009, representing an
increase of $18.1 million, or 62.0%. Of the gross profit increase, $6.8
million is attributable to the operations of Berliner which have been included
in our consolidated results since the date of the Merger and is included in the
engineering and construction segment. Our gross profit as a percentage of
revenue was approximately 15.5% for the nine months ended October 2, 2010, as
compared to 13.8% for the nine months ended October 3, 2009.
29
For the
fulfillment segment, gross margin increased from 14.8% for the nine months ended
October 3, 2009 to 18.3% for the nine months ended October 2, 2010. The
increase is primarily related to the operational improvements in various
fulfillment markets and profitability improvements from the use of technology in
the field, dispatch cost reduction programs and other cost savings
initiatives.
For the
engineering and construction segment, gross margin increased from 8.7% to
10.0%. The increase is primarily attributed to the addition of the
wireless business combined with operational improvements in both the wireline
and wireless portions of the engineering and construction segment.
Selling,
General and Administrative Expenses
SG&A
costs for the nine months ended October 2, 2010 were $27.5 million as compared
to $18.2 million for the nine months ended October 3, 2009. This represents an
overall increase of $9.3 million. The merger of Berliner, which has been
included in our consolidated results since the date of the Merger, contributed
an additional $5.1 million of SG&A costs. The remaining increase in
SG&A costs was primarily from transaction costs related to the merger ($1.8
million), an increase in legal reserves ($0.7 million) and increases
expenses related to the start-up of our Canadian engineering and construction
segment operations ($0.7 million).
Adjusted EBITDA,
Adjusted Pro-Forma EBITDA and Net income (loss) after certain non-cash
adjustments
A
reconciliation of net loss to adjusted EBITDA and Net
(loss) income after certain non-cash adjustments is as follows for the
nine months ended October 2, 2010 and October 3, 2009 (amounts in
thousands):
Pro
Forma
|
||||||||||||||||
Nine
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
October
2, 2010
|
October
3, 2009
|
October
2, 2010
|
October
3, 2009
|
|||||||||||||
Net
loss
|
$ | (18,458 | ) | $ | (23,705 | ) | $ | (16,650 | ) | $ | (23,705 | ) | ||||
Berliner
pro forma loss
|
- | - | (1,308 | ) | (7,303 | ) | ||||||||||
Non-cash
stock based compensation
|
1,228 | 1,419 | 1,312 | 1,641 | ||||||||||||
Non-cash
interest expense
|
5,668 | 3,251 | 5,668 | 3,776 | ||||||||||||
Non-cash
amortization
|
11,396 | 16,426 | 11,396 | 16,426 | ||||||||||||
Net
(loss) income after certain non-cash adjustments
|
$ | (166 | ) | $ | (2,609 | ) | $ | 418 | $ | (9,165 | ) | |||||
Loss
(income) from discontinued operations
|
461 | (555 | ) | 461 | (555 | ) | ||||||||||
Income
tax expense
|
151 | 1,067 | 151 | 754 | ||||||||||||
Cash
interest expense
|
11,717 | 9,951 | 11,999 | 11,224 | ||||||||||||
Other
expense, non-cash
|
175 | 104 | 175 | 66 | ||||||||||||
Depreciation
|
8,516 | 4,358 | 8,768 | 6,450 | ||||||||||||
Merger
transaction costs
|
1,808 | 174 | - | 174 | ||||||||||||
Pro
forma EBIDTA from market swap
|
- | 1,093 | - | 1,093 | ||||||||||||
Adjusted
EBITDA/Adjusted pro forma EBITDA
|
$ | 22,662 | $ | 13,583 | $ | 21,972 | $ | 10,041 |
(1)Berliner
pro forma net loss includes additional interest and amortization resulting from
the Merger as if the Merger had occurred at the beginning of the periods
presented.
(2)This
adjustment reflects the EBITDA impact for the fulfillment sites received from
DIRECTV as part of the market swap had the transaction been completed on January
1, 2009.
Adjusted
pro forma EBITDA increased 118.8% to $22.0 million for the nine months ended
October 2, 2010 from $10.0 million for the nine months ended October 3,
2009. Of this increase, $10.6 million is attributable primarily to
higher gross profit within our fulfillment services segment due to higher
revenues and improved profitability from the use of technology in the field
and other
operational improvements. The adjusted pro forma EBITDA improvement also
includes an additional $5.8 million of year over year adjusted pro
forma EBITDA growth in the wireless business. These
increases in adjusted pro forma EBITDA were partially offset by higher
SG&A expenses to support both the combined businesses and the increased
revenue.
Depreciation
and Amortization
Depreciation
of fixed assets totaled approximately $8.2 million for the nine months ended
October 2, 2010 compared to $4.4 million for the nine months ended October 3,
2009. The increase in depreciation is attributed to the Merger ($0.8
million) and depreciation from the 2009 conversion of a portion of our fleet
from operating leases to capital leases.
30
Amortization
of intangible assets acquired as a result of acquisitions resulted in
amortization expense of approximately $11.7 million for the nine months ended
October 2, 2010 compared to $16.4 million for the nine months ended October 3,
2009. The decrease is related to the asset impairment of the wireline
telecommunications reporting unit in 2009 that resulted in a write-down of the
customer contracts in the fourth quarter of fiscal 2009, offset by increased
amortization resulting from the merger with Berliner.
Interest
Expense
We
recognized $17.4 million and $13.2 million in interest expense during the nine
months ended October 2, 2010 and October 3, 2009, respectively. The
increase of $4.2 million was primarily due to the higher debt levels in 2010 as
a result of the Merger and working capital requirements, an increase in interest
rates from the 2009 amendments to the debt agreements, the credit support fee on
the Holdings Revolving Facility entered into during January 2010 ($1.2 million),
additional interest relating to the Letter of Credit Facility entered into on
March 31, 2010 ($0.5 million) and $1.2 million of noncash amortization of
deferred financing fees and the accretion of debt discounts.
Income
Taxes
We
recorded income tax expense of $0.2 million for the nine months ended October 2,
2010 and $1.1 million for the nine months ended October 3, 2009. The 2010
tax expense represents the estimated tax expense from our Canadian
operations. The 2009 tax expense is due to differences between book and
tax amortization of intangible assets.
At
October 2, 2010, we had net operating loss carry forwards for federal and state
income tax purposes of approximately $43 million which begin to expire in
2014 and will fully expire by 2029. Because the Company has not yet
achieved profitable operations, management believes the potential tax benefits
from the deferred tax assets do not satisfy the realization criteria set forth
in FASB ASC 740, and accordingly, has recorded a valuation allowance for the
entire net deferred tax asset.
Net
Loss
We had a
net loss of $18.5 million for the nine months ended October 2, 2010, compared to
a net loss of $23.7 million for nine months ended October 3, 2009. These
net losses include a loss from discontinued operations of $0.5 million for the
nine months ended October 2, 2010 and income from discontinued operations of
$0.6 million for the nine months ended October 3, 2009. The results from
discontinued operations are the result of the closure of certain cable
installation in 2010 and the impact of the DIRECTV market swap completed in the
first quarter of 2009.
31
LIQUIDITY
AND CAPITAL RESOURCES
At
October 2, 2010, we had consolidated current assets of approximately
$85.4 million, including cash and cash equivalents of approximately $1.7
million. Historically, we have funded our operations primarily through
operating cash flow and borrowings under loan arrangements. Our primary
liquidity needs are for working capital, debt service, insurance collateral in
the form of cash and letters of credit and capital expenditures. In the
past we have also used our capital resources to fund our growth through
strategic mergers and acquisitions. The principal use of cash during the nine
months ended October 2, 2010 was to fund the Merger and for working capital
purposes.
We
believe that our cash, cash equivalents and availability under our existing
Revolving Credit Facility will be sufficient to meet our anticipated cash
requirements for at least the next 12 months. If our available cash and cash
equivalents are insufficient to satisfy our liquidity requirements, we may seek
to sell additional equity or debt securities or obtain an additional credit
facility. The sale of additional equity and debt securities may result in
additional dilution to our stockholders. If we raise additional funds through
the issuance of debt securities or preferred stock, these securities could have
rights senior to those of our common stock and could contain covenants that
would restrict our operations. We may require additional capital beyond our
currently forecast amounts. Any such required additional capital may not be
available on reasonable terms, if at all. If we are unable to obtain additional
financing, we may be required to reduce the scope of, delay or eliminate some or
all of our planned development and operations, which could harm our
business.
On
November 16, 2010, the Company completed an underwritten public offering of 19
million shares of common stock at a price of $4.75 per share. After
deducting underwriting fees and estimated offering costs, the Company generated
net proceeds of approximately $82.6 million. The Company expects to
use the net proceeds from the offering to repay approximately $61.9 million of
indebtedness, with the remaining net proceeds to be used for general corporate
purposes, including for working capital to support the execution of the
Company’s backlog.
Below is
a summary of our debt agreements that is relevant to an understanding of our
liquidity and capital resources:
First
Lien Credit Agreement and Second Lien Credit Agreement
General
On
September 27, 2007, Acquisition entered into (1) the First Lien Credit
Agreement, by and among Acquisition, Midco, certain subsidiaries of Acquisition
as guarantors, the initial lenders, Royal Bank of Canada, as administrative
agent and collateral agent for the lenders and RBC Capital Markets, as lead
arranger and book-runner and (2) the Second Lien Credit Agreement, by and among
Acquisition, Midco, certain subsidiaries of Acquisition as guarantors, the
initial lenders, Royal Bank of Canada, as administrative agent and collateral
agent for the lenders and RBC Capital Markets, as lead arranger and
book-runner.
Availability
and Term
The
credit facilities under the First Lien Credit Agreement are (1) the Term B
Credit Facility, (2) the Term C Credit Facility and (3) the Revolving
Credit Facility, with a portion of such Revolving Credit Facility available as a
swing line facility and a portion available as a letter of credit
facility. The Term B Credit Facility and the Revolving Credit Facility,
including the swing line loan facility and the letter of credit facility, mature
on September 27, 2012. The Term C Credit Facility matures on the earlier
of (1) three months after the maturity date of the Term B Credit Facility
and (2) December 31, 2013. As of October 2, 2010, the Term B Credit
Facility and the Term C Credit Facility are fully drawn at $106.1million,
excluding debt discounts of $2.8 million, and approximately $7.0
million of principal is outstanding under the Revolving Credit
Facility.
The
credit facility under the Second Lien Credit Agreement is a $25
million second lien term loan facility. As of October 2, 2010, the
Second Lien Credit Agreement is fully drawn. The Second Lien Credit
Agreement matures on the earlier of (1) three months after the maturity
date of the Term B Credit Facility and (2) December 31, 2013.
Interest
Rate and Fees
The Term
B Credit Facility currently bears interest at a rate per annum equal to 5.5% for
base rate advances and 6.5% of Eurodollar advanced (subject to 2.50% floor)
provided that the applicable margin shall be increased for each period in which
the Leverage Ratio is greater than 3.00:1.00 to 6.25% per annum for base rate
advances and 7.25% per annum for Eurodollar rate advances (subject to 2.5%
floor). The Term C Credit Facility currently bears interest at a rate of
16.50% on $8 million of the debt and $13.08% on the remaining $11.5 million of
the debt. The Second Lien Credit Facility currently bears interest at a
rate per annum equal to the greater of (1) 15.75% and (2) the
Eurodollar rate plus a margin of 7.25%. The Revolving Credit Facility
interest rate margin is 5.0% for base rate advances and 6% of Eurodollar
advances (subject to 2.50% floor) provided that the applicable margin for the
Revolving Credit Facility shall be increased for periods in which the Leverage
Ratio is greater than 3.00:1.00 to 5.75% per annum for base rate advances and
6.75% per annum for Eurodollar rate advances (subject to 2.50%
floor).
32
Guaranties
and Security
The
obligations under the First Lien Credit Agreement are guaranteed by Midco and
certain subsidiaries of Midco (collectively, the “Guarantors”) and are secured
by a first priority lien on substantially all of the assets and property of the
Company and the Guarantors, including a pledge of all equity interests in Unitek
Acquisition and the Guarantors, other than Midco.
The
obligations under the Second Lien Credit Agreement are guaranteed by the
Guarantors and are secured by a second priority lien on substantially all of the
assets and property of the Company and the Guarantors, including a pledge of all
equity interests in Acquisition and the Guarantors, other than
Midco.
The First
Lien Credit Agreement and the Second Lien Credit Agreement contain
representations and warranties and affirmative and negative covenants that are
customary for debt facilities of this type. In addition, the First Lien
Credit Agreement contains certain financial covenants, including, among other
things, a maximum total leverage ratio, a maximum first lien leverage ratio, a
minimum fixed charge coverage ratio, a minimum interest coverage ratio and
minimum liquidity requirements. The Second Lien Credit Agreement also
contains total leverage ratio, maximum fixed charge coverage ratio and minimum
interest coverage ratio covenants, although in some cases the covenants
contained in the First Lien Credit Agreement are more restrictive.
The First
Lien Credit Agreement and the Second Lien Credit Agreement also include events
of default that are customary for debt facilities of this type, subject to
significant threshold amounts and cure periods. These events of default
include, among other things, payment defaults, breaches of representations and
warranties, covenant defaults, cross-defaults to certain indebtedness and
bankruptcy.
On July
16, 2010, we amended our existing Term B Credit Facility to provide a Third
Incremental Term B Facility of up to $20 .0 million. Upon closing of the
amendment, $15.0 million of the facility was made available to us. The
additional $5.0 million of the facility shall be available to us as early as
November upon the achievement of certain EBITDA levels and covenant compliance
as defined in the amendment. The proceeds were used to reduce the existing
balance on the Revolving Credit Facility to support future working capital
needs. The Third Incremental Term B Facility currently bears interest at
the same rate as the prior Term B facility. Pursuant to the terms of the
amendment, the Third Incremental Term B Lenders received warrants to purchase an
aggregate of 0.1 million shares of our common stock. The warrants have an
exercise price of $0.28 per share, vested 25% upon issuance, and the remaining
warrants vest ratably through September 1, 2012. The warrants contain a
cashless exercise provision and provide for anti-dilution adjustments in the
case of reclassifications, consolidations, mergers or sales that impact our
common stock. We also agreed to pay to the Third Incremental Term B
Lenders a deferred fee in cash up to a maximum of $3.5 million, which will be
earned by the lenders through July 12, 2012 and is payable on March 26, 2013, or
earlier under certain circumstances contained in the amendment. The
deferred fee payable in cash will be reduced by an amount calculated based on
value realized by or ascribed to the exercise of the warrants described
above. Additionally, payment of the deferred fee in cash will result in
the termination of the related warrants. As a result of the contractual
relationship between the exercise of the warrants and the payment of the
deferred fee, we consider them to be separate financial instruments that
should be measured at fair value and recorded as a discount to the debt issued
under the amendment, and classified as liabilities in the accompanying
condensed consolidated balance sheet. The estimated fair value of this
instrument is $3.2 million, which was calculated using probability-weighted
discounted cash flows for the deferred fee and the fair value of the related
warrants based on the likelihood of satisfying the ultimate liability in either
cash or shares of common stock, or a combination of both. During the
three months ended October 2, 2010, we recognized additional interest expense of
$0.3 million related to the accretion of both the debt, net of discount, and the
deferred fee liability to their estimated maturity values.
With the
net proceeds from the equity offering closed on November 16, 2010, we intend to
use approximately $16.3 million to repay indebtedness outstanding under our Term
B Credit Facility and approximately $15.3 million to repay indebtedness
outstanding under our Second Lien Credit Agreement.
Letter
of Credit Transaction
On March
31, 2010, we entered into the LOC Facility, via the Amendment, by and among
Acquisition, Midco, certain subsidiaries of Acquisition as guarantors, the
initial lenders under the LOC Facility, and Royal Bank of Canada, as
administrative agent and collateral agent for the lenders. The Amendment
establishes the “Incremental Tranche added to the credit facilities established
by the First Lien Credit Agreement. The full amount of Incremental Tranche
is solely available to Acquisition for the issuance of letters of credit in
support of Acquisition’s obligations under certain insurance policies and other
general corporate purposes. The LOC Facility charges a 1.3333% per month
cash fee payable on issued but unfunded letters of credit and a 1.0% per annum
cash fee on the daily average unfunded amount of the LOC Facility. Funded
letters of credit will carry an interest rate of LIBOR plus 6.75% per annum with
a 2.5% LIBOR floor. As of October 2, 2010, there were $6.0 million in
letters of credit issued under the LOC Facility.
33
Loan
Authorization Agreement
Availability
and Term
Holdings
entered into the Loan Authorization Agreement among Holdings and
BMO.
The Loan
Authorization Agreement established the Holdings Revolving Facility and is
evidenced by a demand note. The Holdings Revolving Facility is payable and
matures on demand of BMO. As of October 2, 2010, approximately $25 million
of principal plus approximately $5.3 million in interest (calculated at a per
annum rate of 7.25%) is outstanding under the Holdings Revolving Facility.
The lender under the Holdings Revolving Facility has the right to terminate the
Holdings Revolving Facility at any time upon demand.
Guaranties
The
obligations under the Loan Authorization Agreement are guaranteed severally, but
not jointly, by Sector Performance Fund, LP and SPF SBS LP, who are affiliates
of HM Capital Partners LLC.
With the
net proceeds from the equity offering closed on November 16, 2010, we intend to
use approximately $30.3 million to pay off the indebtedness outstanding under
the Holdings Revolving Facility.
Summary
of Cash Flows
The
following table summarizes our cash flows for the nine months ended October 2,
2010 and October 3, 2009:
For the Nine months
Ended
|
||||||||
(in thousands)
|
October
2, 2010
|
October
3, 2009
|
||||||
Net
cash provided by (used in) operating activities
|
$ | (3,799 | ) | $ | 96 | |||
Net
cash used in investing activities
|
$ | (2,317 | ) | $ | (6,379 | ) | ||
Net
cash provided by financing activities
|
$ | (5,591 | ) | $ | 3,251 |
Net
cash provided by (used in) operating activities.
Net cash
(used in) and provided by operating activities for the nine months ended October
2, 2010 and October 3, 2009 was approximately ($3.8) million and $0.1 million,
respectively. During the nine months ended October 2, 2010, cash flow used in
operating activities primarily resulted from an increase in our working capital
due to the Merger and the longer collection period in the wireless business
combined with the overall increase in our revenues. Accounts
receivable increased by approximately $17.0 million and accounts payable and
accrued expenses increased by approximately $5.2 million due to increased
revenue during the nine months ended October 2, 2010. For the nine months
ended October 3, 2010, cash used in operating activities from discontinued
operations was approximately $0.4 million.
For the
nine months ended October 3, 2009, our accounts receivable increased by $6.3
million, offset by an increase in accounts payable and accrued expenses of $1.7
million. Our inventories also decreased by $3.6 million due to lower
inventory levels in our satellite fulfillment business which was offset by an
increase in prepaid expenses and other assets of $3.5 million due to the timing
of insurance payments for the nine months ended October 3, 2009. For the
nine months ended October 3, 2009, cash provided by discontinued operations was
approximately $1.1 million.
34
Net
cash used in investing activities.
Net cash
used in investing activities for the nine months ended October 2, 2010 and
October 3, 2009 was approximately $2.3 million and $6.4 million,
respectively. Cash used for the purchase of fixed assets was
$2.7 million and $2.3 million for the nine months ended October 2, 2010 and
October 3, 2009, respectively. We received $0.2 million and $0.5 million in cash
proceeds from the sale of property and equipment during the nine months ended
October 2, 2010 and October 3, 2009, respectively. During the nine months
ended October 3, 2009 we also used approximately $4.9 million of cash for the
acquisition of businesses.
Net
cash provided by financing activities.
Net cash
provided by financing activities for the nine months ended October 2, 2010 and
October 3, 2009 was approximately $5.6 million and $3.3 million,
respectively. During the nine months ended October 2, 2010, net cash
provided by financing activities consisted primarily of $12.5 million from
issuance of preferred stock and $15.0 million from the closing of the Third
Incremental Term B Credit Facility. These proceeds were used to reduce the
balance on the revolving credit facility, resulting in a net repayment of $4.5
million on the revolving credit facility for the nine months ended October 2,
2010. As part of the Merger, existing Berliner debt of $7.2 million was
paid and $2.0 million was paid on the Term B Credit Facility. Cash used
for the repayment of our capital leases and long-term debt for the nine months
ended October 2, 2010 was $5.9 million, excluding the payment made in
conjunction with the Merger. During the nine months ended October 2, 2010, we
also used $2.1 million of cash for deferred financing fees related to our term
debt and revolving credit facilities and $0.5 million for the payment of costs
associated with our equity offering completed on November 16, 2010.
During
the nine months ended October 3, 2009, net cash provided by financing activities
consisted primarily of borrowing $7.5 million under our revolving credit
facility, offset by $2.6 million in repayments of our long-term debt and capital
leases. During the nine months ended October 3, 2009, we also used $1.7 million
of cash for deferred financing fees related to our term debt and revolving
credit facilities.
Off-Balance
Sheet Arrangements
We
provide letters of credit to secure our obligations primarily related to our
insurance arrangements. Total letters of credit issued as of November 15,
2010 was $8.7 million.
Effect
of Inflation
We do not
believe that the businesses are impacted by inflation to a significantly
different extent than the general economy. However, there can be no
assurance that inflation will not have a material effect on the operations in
the future.
Item
4T. Controls and Procedures
Our
management, with the participation of our Principal Executive Officer and
Principal Financial Officer, have evaluated the effectiveness of our disclosure
controls and procedures as defined in Rule 13a-15(e) and 15(d)-15(e) of the
Securities Exchange Act of 1934, as amended. Based upon that evaluation,
such officers have concluded that our disclosure controls and procedures were
effective, as of the end of the period covered by this report, to provide
reasonable assurance that the information required to be disclosed by us in
reports filed under the Securities Exchange Act of 1934, as amended, is
recorded, processed, summarized and reported within the time periods specified
in the SEC’s rules and forms, and that information required to be disclosed by
us in the reports we file or submit under the Securities Exchange Act of 1934,
as amended, is accumulated and communicated to our management, including our
principal executive and financial officers, or persons performing similar
functions, as appropriate to allow timely decisions regarding required
disclosure.
Changes
in Internal Control Over Financial Reporting
During
the three and nine months ended October 2, 2010, we completed the implementation
of a new Oracle enterprise resource planning software system to replace our
various legacy systems. We have modified the design and documentation of
internal control processes and procedures relating to the new system. We believe
that the new system has and will continue to strengthen our internal control
over financial reporting, and we intend to continue to add upgrades and
enhancements as needed to improve the system. This implementation was done
to increase the efficiency of our systems and to accommodate future growth and
not as a result of any deficiencies identified in the evaluation of our controls
and procedures. We believe these changes have not materially affected, and
are not reasonably likely to materially affect, our internal control over
financial reporting.
There
were not any other changes in internal control over financial reporting that
occurred during the most recent fiscal quarter that have materially affected, or
are reasonably likely to materially affect, our internal control over financial
reporting. There are, however, inherent risks in implementing any new system
that could impact our financial reporting. In the event that issues arise,
we have procedures in place which would facilitate our continued recording and
reporting of results from the new system. We will continue to monitor,
test and appraise the impact and effect of the new system on our internal
controls and procedures as additional phases and features of the system are
implemented.
35
PART
II: OTHER INFORMATION
Item
1. Legal Proceedings
We are
subject to various litigation claims that occur in the ordinary course of
business, which the Company believes, even if decided adversely to us, would not
have a material adverse effect on our business, financial condition and results
of operations.
In
addition, we are subject to the following claims. We do not believe that
any of these claims has merit, intend to defend all these cases vigorously and
believe if decided adversely to us, these cases would not have a material
adverse effect on our business, financial condition and results of
operations.
Gerald
Farmer, et al. v. Direct Sat USA, LLC
On June
11, 2008, three named plaintiffs, who were formerly employed as technicians by
DirectSat USA, LLC, a UniTek subsidiary, filed a claim in the United States
District Court for the Northern District of Illinois, alleging violations of the
Illinois Wage and Hour Laws and the Fair Labor Standards Act
(“FLSA”).
These
allegations related to the payment of overtime. The plaintiffs have sought and
have been granted class certification for the state law claims.
On
February 9, 2010, plaintiffs’ counsel filed a companion case, Lashon
Jacks v. DirectSat et al., in the Cook County, Illinois Circuit
Court, seeking to expand the class in the Farmer case to include all technicians
in Illinois that worked with DirectSat after June 10, 2008.
Monroe
et al. v. FTS USA, LLC and UniTek USA, LLC
On
February 15, 2008, plaintiffs, former employees of FTS USA, LLC, a UniTek
subsidiary, filed a class action in the United States District Court for the
Western District of Tennessee, alleging violations of the FLSA related to
overtime payments. Conditional class certification was
granted.
Aaron
Espenscheid, et al. v. Direct Sat USA, LLC
On
October 12, 2009, a named plaintiff, who was formerly employed as a technician
by DirectSat, filed a claim in the United States District Court for the Western
District of Wisconsin, alleging violations of the FLSA and Wisconsin wage and
hour laws.
These
allegations related to the payment of overtime. On February 3, 2010, the
named plaintiffs, joined by two other technicians at DirectSat, filed an Amended
Complaint re-alleging the previous overtime-related FLSA and state law claims,
and adding new overtime-related claims under Minnesota and Pennsylvania wage and
hour laws.
The
plaintiffs have sought and have been granted conditional
class certification for the FLSA claims, but class certification is still
pending on the state law claims.
Item
1A. Risk Factors
There
have been no material changes to any of the risk factors disclosed in our most
recently filed Quarterly Report on Form 10-Q.
36
Item
2. Unregistered Sales of Equity Securities and Use of
Proceeds
None
Item
3. Defaults Upon Senior Securities
None.
Item
4. (Removed and Reserved)
Item
5. Other Information
On
September 29, 2010, Unitek Acquisition, Inc. (“Unitek Acquisition”), a Delaware
corporation and a subsidiary of UniTek Global Services, Inc. (the “Company”),
Unitek Midco, Inc., a Delaware corporation and a subsidiary of the Company
(“Unitek Midco”), certain subsidiaries of Unitek Acquisition as guarantors,
Royal Bank of Canada, as administrative agent, and the Lenders (as defined
below) entered into that certain Amendment No. 8 to the First Lien Credit
Agreement (the “Amendment”). The Amendment amends that certain First
Lien Credit Agreement, dated as of September 27, 2007 (the “Credit Agreement”),
by and among Unitek Acquisition, Unitek Midco, certain subsidiaries of Unitek
Acquisition as guarantors and the lenders party thereto (the
“Lenders”).
In light
of the Company’s offering of its common shares pursuant to the Company’s
Registration Statement on Form S-1 (Comission File No. 333-168854) (the “Form
S-1 Registration Statement”), the Amendment defines “IPO” as “the public
offering of the common stock of UniTek Global Services, Inc.,” and provides for
“Permitted Purposes” for the proceeds of an IPO, including but not limited to,
in the event;
(1) the
IPO is for less than $75,000,000, (i) the prepayment of the then outstanding
loans made pursuant to the Company’s Loan Authorization Agreement, (ii) the
payment of fees and expenses in connection with the IPO and the use of the
proceeds therefrom, (iii) any other purposes specifically set forth in the Form
S-1 Registration Statement, (iv) the prepayment of the Term B Advances (as such
term is defined in the Credit Agreement) in a minimum aggregate amount of
$4,000,000, and (v) the contribution of the remaining amount of proceeds from
the IPO on the balance sheet of the Company and its Subsidiaries reflected
either in unrestricted and available cash or Cash Equivalents or prepayment of
Revolving Credit Advances; and
(2) the
IPO is for $75,000,000 or more, (i) the prepayment of the then outstanding loans
made pursuant to the Company’s Loan Authorization Agreement, (ii) the prepayment
of the Term B Advances (as such term is defined in the Credit Agreement) in a
minimum aggregate amount of $10,000,000, (iii) subject to the prior or
substantially concurrent contribution of proceeds pursuant to clause (v) below,
the prepayment of advances under the Second Lien Term Loan Agreement (other than
the Term C Advances) in an aggregate amount of up to $10,000,000, (iv)
prepayment of certain other advances extended under the Credit Agreement, (v)
the contribution of a minimum of $15,000,000 on the balance sheet of the Company
reflected either in unrestricted and available cash or Cash Equivalents or
prepayment of Revolving Credit Advances; (vi) the payment of fees and expenses
in connection with the IPO and the use of the proceeds therefrom, and (vii) any
other purposes specifically set forth in the Form S-1 Registration
Statement.
The
Company also agreed with the Lenders to pay certain fees upon consummation of
the IPO.
Item
6. Exhibits.
(a)
Exhibits
4.1
|
Form
of Warrant issued pursuant to the Third Incremental Term B Facility
Amendment and Amendment No. 6 to the First Lien Credit Agreement, dated as
of July 16, 2010 (incorporated herein by reference from Exhibit 99.2 to
the Company’s Form 8-K filed on July 22, 2010).
|
|
#10.1
|
Amendment
No. 2 to Employment Agreement, dated as of July 8, 2010, by and between
UniTek Global Services, Inc. and Michael S. Guerriero (incorporated herein
by reference from Exhibit 99.1 to the Company’s Form 8-K filed on July 12,
2010).
|
|
10.2
|
Third
Incremental Term B Facility Amendment and Amendment No. 6 to the First
Lien Credit Agreement, dated as of July 16, 2010 (incorporated herein by
reference from Exhibit 99.1 to the Company’s Form 8-K filed on July 22,
2010).
|
|
10.3
|
Amendment
No. 1 to Registration Rights Agreement, dated as of July 16, 2010
(incorporated herein by reference from Exhibit 99.3 to the Company’s Form
8-K filed on July 22, 2010).
|
|
|
||
10.4
|
Amendment
No. 7 to the First Lien Credit Agreement, dated as of September 20, 2010
(incorporated herein by reference from Exhibit 99.1 to the Company’s Form
8-K filed on September 24, 2010).
|
|
10.5
|
Amendment No. 8 to the First Lien Credit Agreement, dated as of September 29, 2010 (incorporated herein by reference from Exhibit 10.37 to the Company's Amendment No. 3 to Registration Statement on Form S-1 filed on October 28, 2010). | |
*31.1
|
Certification
of the Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of
2002.
|
37
*31.2
|
Certification
of the Principal Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
|
**32.1
|
Certification
of our Principal Executive Officer and Principal Financial Officer
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
#
Management contract or compensatory plan or arrangement.
* Filed
herewith.
**
Furnished herewith.
38
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
UNITEK
GLOBAL SERVICES, INC.
Date: November
16, 2010
|
By:
|
/s/
C. Scott Hisey
|
|
C.
Scott Hisey
Chief
Executive Officer
(Principal
Executive
Officer)
|
Date: November
16, 2010
|
By:
|
/s/
Ronald J. Lejman
|
|
Ronald
J. Lejman
Chief
Financial Officer and Treasurer
(Principal
Financial and Accounting Officer)
|
39