posam
As filed with the Securities and Exchange Commission on September 14, 2007
Registration No. 333-136992
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 2
to
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LIME ENERGY CO.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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3699
(Primary Standard Industrial Classification
Code Number)
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36-4197337
(I.R.S. Employer
Identification No.) |
1280 Landmeier Road, Elk Grove Village, Illinois, 60007, (847) 437-1666
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
JEFFREY R. MISTARZ
Chief Financial Officer and Treasurer
Lime Energy Co., 1280 Landmeier Road, Elk Grove Village, Illinois, 60007, (847) 437-1666
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Todd Arkebauer
Reed Smith LLP
10 S. Wacker Drive
Chicago, Illinois 60606-7507
(312) 207-1000
Approximate Date of Commencement of Proposed sale to the Public:
From time to time after the effective date of this registration statement.
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box. þ
If this form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the
Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
o
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A) MAY
DETERMINE.
Explanatory Note:
This Registration Statement constitutes the second post-effective amendment to the
Registration Statement under File No. 333-136992 filed on August 30, 2006, registering up to
40,633,588 shares of Lime Energy Co.s common stock. The primary purpose of this post-effective
amendment is to include the Registrants interim financial statements for the three months and six
months ended June 30, 2007 into the prospectus forming a part hereof.
iii
PROSPECTUS
LIME ENERGY CO.
40,633,588 Shares of Common Stock
This prospectus relates to up to 40,633,588 shares of our common stock, par
value $0.0001 per share, which may be offered for sale by selling stockholders
named in this prospectus. The selling stockholders can sell these shares on any
exchange on which the shares are listed, in privately negotiated transactions
or by any other legally available means, whenever they decide and at the prices
they set. We may issue up to 364,667 of these shares upon exercise of common
stock warrants issued by the Company held by the selling stockholders. We will
not receive any of the proceeds from the sale of these shares of our common
stock, but may receive proceeds from the exercise of any of such warrants.
Our common stock is quoted on the OTC Bulletin Board under the symbol LMEC.
On September 12, 2007, the closing sale price for shares of our common stock
was $1.63 per share.
Our principal executive office is located at 1280 Landmeier Road, Elk Grove
Village, Illinois, 60007. Our telephone number at that address is (847)
437-1666. Our web site is located at http://www.lime-energy.com. The
information contained on our web site is not part of this prospectus.
Investing in our common stock involves risks described beginning on page 8.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is September 14, 2007.
iv
TABLE OF CONTENTS
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About This Prospectus |
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1 |
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Cautionary Note Regarding Forward-Looking Statements |
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1 |
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Prospectus Summary |
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2 |
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Risk Factors |
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8 |
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Use Of Proceeds |
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14 |
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Plan Of Distribution |
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14 |
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Legal Proceedings |
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16 |
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Directors, Executive Officers, Promoters And Control Persons |
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16 |
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Selling Stockholders |
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19 |
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Description Of Securities |
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29 |
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Legal Matters |
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31 |
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Experts |
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32 |
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Commission Position On Indemnification For Securities Act Liability |
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32 |
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Description Of Business |
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32 |
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Selected Consolidated Financial Data |
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37 |
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Managements Discussion And Analysis Of Financial Condition And Results Of Operations |
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39 |
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Description Of Property |
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55 |
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Certain Relationships And Related Transactions |
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57 |
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Market For Common Equity And Related Stockholder Matters |
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66 |
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Security Ownership Of Principal Stockholders And Management |
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83 |
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Where You Can Find More Information |
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84 |
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Financial Statements |
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85 |
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v
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we have filed with the Securities
and Exchange Commission (SEC or Commission) using a shelf registration process. Under the
shelf registration rules, using this prospectus and, if required, one or more prospectus
supplements, the selling stockholders may sell from time to time, in one or more offerings, the
shares of common stock covered by this prospectus. The shares covered by this prospectus include
40,268,921 outstanding shares of common stock and 364,667 shares of common stock issuable upon the
exercise of warrants.
You should rely only on the information provided in this prospectus or any supplement or
amendment. We have not authorized anyone else to provide you with additional or different
information. You should not assume that the information in this prospectus or any supplement or
amendment is accurate as of any date other than the date on the front of this prospectus or any
supplement or amendment.
Unless the context otherwise requires, Lime Energy, the Company, we, our, us and
similar expressions refers to Lime Energy Co. and its subsidiaries, and the term common stock
means Lime Energy Co.s common stock, par value $0.0001 per share.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements that reflect our current expectations
and projections about our future results, performance, prospects and opportunities. We have tried
to identify these forward-looking statements by using words such as may, should, expect,
hope, anticipate, believe, intend, plan, estimate and similar expressions. These
forward-looking statements are based on information currently available to us and are subject to a
number of risks, uncertainties and other factors, including the factors set forth under Risk
Factors, that could cause our actual results, performance, prospects or opportunities in 2007 and
beyond to differ materially from those expressed in, or implied by, these forward-looking
statements. These factors include, without limitation, our limited operating history, our history
of operating losses, fluctuations in retail electricity rates, our reliance on licensed
technologies, customers acceptance of our new and existing products, the risk of increased
competition, our ability to successfully integrate acquired businesses, products and technologies,
the recent changes in our management, our ability to manage our growth, our possible need for
additional financing in the future and the terms and conditions of any financing that might be
consummated, the possible volatility of our stock price, the concentration of ownership of our
stock and the potential fluctuation in our operating results. Although we believe that the
expectations reflected in these forward-looking statements are reasonable and achievable, such
statements involve risks and uncertainties and no assurance can be given that the actual results
will be consistent with these forward-looking statements. Except as otherwise required by Federal
securities laws, we undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events, changed circumstances or any
other reason, after the date of this prospectus.
1
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed information appearing
elsewhere in this prospectus.
Our Company
We were organized as Electric City LLC, a Delaware limited liability company, on December 5,
1997. On June 5, 1998 we merged Electric City LLC with and into Electric City Corp., a Delaware
corporation. On June 10, 1998, we issued approximately six (6%) percent of our then issued and
outstanding common stock to the approximately 330 stockholders of Pice Products Corporation
(Pice), an inactive, unaffiliated company with minimal assets, pursuant to the merger of Pice
with and into Electric City. This merger facilitated the establishment of a public trading market
for our common stock. Trading in our common stock commenced on August 14, 1998 through the OTC
Bulletin Board under the trading symbol ECCC. From December 12, 2000 through June 9, 2006, our
common stock traded on the American Stock Exchange under the trading symbol ELC. Beginning on
June 12, 2006, our common stock began trading once again on the OTC Bulletin Board under the
trading symbol ELCY. On September 13, 2006, we changed our name to Lime Energy Co. after merging
with a wholly owned subsidiary which was set up solely for the purpose of effecting a name change.
On September 22, 2006, our stock began trading on the OTC Bulletin Board under the trading symbol
LMEC.
Our Products
We are a developer, manufacturer and integrator of energy saving technologies. Our energy
saving products are the eMAC line of HVAC controllers and the EnergySaver system. The EnergySaver
reduces energy consumed by lighting, typically by 20% to 30%, with minimal lighting level
reduction. This technology has been installed in applications in commercial buildings, factories
and office structures, as well as street lighting and parking lot lighting.
On May 3, 2005, we acquired Maximum Performance Group, Inc. (MPG), a technology-based
provider of energy and asset management products and services. MPG currently manufactures and
markets its eMAC line of controllers for commercial and industrial HVAC and lighting applications.
The eMAC line of microprocessor based controllers are used to optimize the performance of HVAC
systems and provide continuous monitoring, control and reporting. The eMAC system generally
reduces energy consumption by 15% to 20% through the use of intelligent operating algorithms which
learn the rate of cooling or heating required to achieve the desired space temperature while
optimizing compressor run time within these limits. The eMAC also monitors up to 126 points of
system operation. This system information is captured on a real time basis and transmitted via
wireless two-way communication to MPGs central eMAC servers where it is analyzed to ensure maximum
system reliability. If the system detects a problem in an HVAC unit, the problem can be diagnosed
and the appropriate action can be taken to minimize or avoid system downtime. MPGs customers can
also remotely control their HVAC equipment and view historical operating information via the
Internet using a standard Internet browser.
Effective June 30, 2006, we acquired Parke P.A.N.D.A. Corporation (Parke), an energy
services provider specializing in the design, engineering and installation of energy efficient
lighting upgrades for commercial and industrial users. We believe that the addition of Parke will
broaden the product offering to our existing customers and allow us to sell our technology products
to its current and former customers.
Effective September 27, 2006, we acquired Kapadia Consulting, Inc. (Kapadia), an energy
engineering firm that specializes in energy conservation and energy management. We believe that
the acquisition of Kapadia will further expand our product offering, increase our customer base and
brings valuable energy engineering experience to the Company.
2
Effective May 31, 2007, we acquired the assets and assumed certain liabilities of George
Bradley Boyett dba Texas Energy Products (Texas Energy), and effective as of July 31, 2007, we
acquired the asset and assumed certain liabilities of Preferred Lighting, Inc. (Preferred
Lighting). Both Texas Energy and Preferred Lighting are energy service providers, specializing in
providing their customers energy efficient lighting retrofit services. These acquisitions expand
our geographic market coverage to include portions of Texas and Washington.
Our EnergySaver product line is manufactured at our facilities in Elk Grove Village, Illinois,
with manufacturing and assembly scaled to order demand. Maximum Performance Group has offices in
New York City and San Diego, California, but contracts for the manufacturing of its hardware
products with third party contract manufacturers. Parke is headquartered in Glendora, California
and has offices in Danville and Carmel, California. Kapadia is headquartered in Peekskill, New
York and has an office in Ventura, California.
Giorgio Reverberi has patented in the United States and Italy certain technologies underlying
the EnergySaver products. We have entered into a license agreement and series of agreements with
Mr. Reverberi and our founder, Mr. Joseph Marino, relating to the license of the EnergySaver
technology in the United States and certain other markets. We own all the patents and trademarks
related to MPGs products.
Due to changes in lighting technology we expect revenue from the EnergySaver system to decline
in future periods and the eMAC line of HVAC controllers to become our leading line of technology
products.
We are pursuing a multi-channel marketing and sales distribution strategy to bring our energy
saving products to market. Our multi-channel approach includes the use of a direct sales force and
independent manufacturers representatives and dealers.
Recent Events
AMEX Delisting
On April 21, 2006, we received a notice from the American Stock Exchange informing us that
after a review of our most recent Annual Report on Form 10-K it determined that we were not in
compliance with Section 1003(a)(iii) of its Company Guide. Section 1003(a)(iii) requires a listed
company to maintain shareholder equity of at least $6 million if it has sustained losses from
continuing operations and/or new losses in its most recent five fiscal years. On May 22, 2006, we
notified the American Stock Exchange of our decision to delist our common stock from the Exchange.
On June 12, 2006, our common stock began trading on the OTC Bulletin Board under the ticker symbol
ELCC.
Reverse Stock Split
In June 2006, our board of directors approved and we announced a 1 for 15 reverse split of our
common stock, effective on June 15, 2006. Our common stock has been trading on this basis since
that date. We took such action in order to permit us to raise additional capital, which we did on
June 29, 2006. We did not ask our stockholders to approve the Reverse Split in June because we did
not believe it was necessary based on the advice of our prior legal counsel. Thereafter, on June
29, 2006, we closed four transactions (the June 29 Transactions) and acquired Kapadia Consulting,
Inc., which transactions are described under The PIPE Transaction, Acquisition of Parke
P.A.N.D.A Corporation, and Acquisition of Kapadia Consulting, Inc. in the paragraphs below. All
of the June 29 Transactions, and the acquisition of Kapadia Consulting, Inc., were premised on the
belief of the parties thereto that the 1 for 15 reverse split was completed on June 15, 2006, and
all of these transactions valued our common stock at a price of $1 per share. Subsequently, the
staff of the Securities and Exchange Commission requested advice as to whether our Certificate of
Incorporation should have been amended (which requires stockholder approval) under Delaware law to
effect the reverse split. We then engaged Delaware counsel to assist us. We were advised by
Delaware counsel that, although our board had approved the reverse split, in the view of Delaware
counsel the reverse split would not be effective until it had been set forth in an amendment to our
Certificate of Incorporation approved by our stockholders and filed with the Delaware Secretary of
State. We completed such actions on January 23, 2007 and the reverse split
3
became effective on that date. As a result of the reverse split, the number of outstanding
shares of our common stock was reduced from 97,663,927 shares outstanding immediately prior to
filing of the amendment to 6,510,925 shares of common stock immediately after filing the amendment.
However, because the reverse split became effective January 23, 2007 and not on June 15, 2006,
the shares of common stock that were issued in the June 29 Transactions and the acquisition of
Kapadia Consulting, Inc. were reduced on a 1 for 15 basis when the amendment was filed. Since both
we and the other parties to those transactions intended that the shares we issued were post-reverse
split shares, following the filing of the amendment and the reverse split becoming effective, we
offered to each of the recipients of shares in the June 29 Transactions and the Kapadia acquisition
additional shares of common stock so that each would have the specific number of post-reverse split
shares of which were intended in those transactions, in satisfaction of any claims such recipients
might have in respect of such matter. All of them accepted such offer and we thereupon issued a
total of 43,275,686 shares of common stock to such parties, bringing our total outstanding shares
of common stock to 53,566,100. The table below shows, for each such party, the number of shares
acquired in the June 29 Transactions and the Kapadia acquisition, the effect of the reverse split
on those shares, and the number of catch up shares which we have issued to each such party in
satisfaction of any claims they might otherwise have:
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Number Of |
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Shares Held |
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No. Of Shares |
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After |
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Number Of |
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Actually |
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Amendment and |
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Catch Up |
Stockholder |
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Acquired |
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Reverse-Split |
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Shares Issued |
David R. Asplund |
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1,854,200 |
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123,613 |
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1,730,587 |
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Augustine Fund LP |
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2,628,000 |
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175,200 |
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2,452,800 |
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Chris Capps |
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25,000 |
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1,667 |
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23,333 |
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Cinergy Ventures II, LLC |
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3,002,293 |
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200,153 |
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2,802,140 |
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John Donohue |
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294,000 |
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19,600 |
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274,400 |
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Gregory Ekizian |
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400,000 |
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26,667 |
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373,333 |
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Robert L. Gipson |
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2,363,600 |
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157,573 |
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2,206,027 |
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Thomas Gipson |
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1,500,000 |
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100,000 |
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1,400,000 |
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Julia Gluck |
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100,000 |
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6,667 |
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93,333 |
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John Thomas Hurvis Revocable Trust |
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540,053 |
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36,004 |
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504,049 |
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Rebecca Kiphart |
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200,000 |
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13,333 |
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186,667 |
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Richard P. Kiphart |
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14,603,400 |
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973,560 |
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13,629,840 |
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Laurus Master Fund Ltd |
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1,343,461 |
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89,564 |
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1,253,897 |
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Leaf Mountain |
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3,315,900 |
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221,060 |
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3,094,840 |
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Martin Mellish |
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250,000 |
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16,667 |
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233,333 |
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Nikolaos D. Monoyios |
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2,363,600 |
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157,573 |
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2,206,027 |
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Nettlestone Enterprise Ltd. |
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1,500,000 |
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100,000 |
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1,400,000 |
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SF Capital Partners |
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4,237,600 |
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282,507 |
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3,955,093 |
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David W. Valentine |
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345,700 |
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23,047 |
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322,653 |
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The Parke Family Trust |
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5,000,000 |
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333,333 |
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4,666,667 |
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Pradeep Kapadia |
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500,000 |
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33,333 |
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466,667 |
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Total |
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46,366,807 |
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3,091,121 |
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43,275,686 |
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4
The PIPE Transaction, Series E Preferred Conversion and Laurus Repayment
On June 29, 2006, we entered into a securities purchase agreement with a group of 17 investors
(the PIPE Investors) pursuant to which we issued to such purchasers an aggregate of 17,875,000
shares of our common stock at a price of $1.00 per share for total gross proceeds of $17,875,000
(the PIPE Transaction). Ten of the PIPE Investors, who purchased an aggregate of 13,900,000
shares of common stock in the PIPE Transaction, were holders of Series E Convertible Preferred
stock (Series E Preferred), including three members of our board of directors (who, together with
members of their families, purchased 7,700,000 shares of common stock in the PIPE Transaction).
Prior to the PIPE Transaction, the Series E Preferred stock was convertible into our common
stock at $6.67 per share, after adjustment for the reverse split. However, the Series E Preferred
contained anti-dilution provisions which required automatic reduction of the conversion price of
the Series E Preferred if we issued stock or securities convertible into common stock at a price
below the Series E Preferred conversion price then in effect to the price of the new issuance.
Because we issued common stock in the PIPE Transaction at $1.00 per share, the Series E Preferred
conversion price was automatically reduced to $1.00 per share.
In connection with the PIPE Transaction, the holders of the Series E Preferred agreed to
convert all outstanding shares of Series E Preferred into common stock at the new conversion price
on the closing of the PIPE Transaction (the Series E Conversion). As a result, we issued
21,648,346 shares of our common stock upon the conversion of the Series E Preferred on June 29,
2006.
Prior to closing the PIPE Transaction, we owed Laurus Master Fund, Ltd. (Laurus), $943,455
under a revolving convertible loan, $5,038,030 under two convertible term loans, $54,726 in accrued
interest and fees and $161,096 in liquidated damages for failing to register common stock with the
SEC for resale by Laurus as required in connection with the $5 million term loan which we borrowed
from Laurus in November 2005. In connection with the PIPE Transaction Laurus agreed to convert the
outstanding balance on the revolving convertible loan and related accrued interest into common
stock at $1.00 per share and accept payment of the liquidated damages in shares of our common
stock, again valued at $1.00 per share. We used $5,601,418 of the proceeds from the PIPE
Transaction to repay the convertible term loans and pay related accrued interest and fees and
prepayment penalties thereon, and, we issued 1,111,961 shares of common stock to Laurus upon
conversion of the revolving convertible loan and to pay the accrued interest and the liquidated
damages. Laurus also agreed, in exchange for 231,500 shares of our common stock, to terminate the
requirement that we pay it a portion of the cash flows generated by own two Virtual Negawatt Power
Plan (or VNPP) projects as required by the $5 million term loan of November 2005.
We also used $2,720,000 of the proceeds of the PIPE Transaction to fund the cash portion of
the purchase price of the Parke acquisition (described below) and $400,000 of such proceeds to
repay Parkes revolving line of credit. The remaining proceeds will be used for general corporate
purposes. We may also use a portion of the proceeds to selectively acquire businesses, products
and/or technologies that are complementary to our own.
A provision of the PIPE Transaction required us to file and have declared effective by
November 3, 2006, a registration statement registering the shares issued as part of the PIPE
Transaction. To the extent that we failed to have the registration statement declared effective by
this date, we were required to pay penalties to the PIPE investors at the rate of 1% per month of
the purchase price paid by the investors. Largely as a result of the questions regarding the need
to amend our Certificate of Incorporation to effect the June 15, 2006 reverse split of our stock,
we were not able to have the registration statement declared effective until February 14, 2007.
All of the investors in the PIPE Transaction agreed to accept shares of our common stock, valued at
$1.00 per share, as payment of this registration penalty. As a result, during January and February
2007 we issued a total of 613,708 shares of our common stock to the PIPE investors in satisfaction
of the penalties owed through February 14, 2007.
5
Acquisition of Parke P.A.N.D.A. Corporation
On June 29, 2006, we completed the previously announced acquisition of Parke for consideration
consisting of $2.72 million in cash and $5 million of our common stock (5,000,000 shares valued at
$1.00 per share). The acquisition was effective as of June 30, 2006. As part of the acquisition,
we assumed debt of approximately $446,000, $400,000 of which we repaid upon closing. Parke was
owned by The Parke Family Trust, whose trustees are Daniel Parke, one of our directors, and his
wife Michelle Parke.
Parke (now named Parke Industries, LLC) is an energy services provider specializing in the
design, engineering and installation of energy efficient lighting upgrades for commercial and
industrial users. Parke has 30 employees and is headquartered in Glendora, California, with
offices in Danville and Carmel, California.
Dan Parke, the president and founder of Parke, continues to serve as the President of Parke
and, as of June 30, 2006, also assumed the position of President and Chief Operating Officer of
Lime Energy.
Name Change to Lime Energy
On September 13, 2006, we changed our name to Lime Energy Co. by merging with a wholly owned
subsidiary set up solely for the purpose of effecting the name change. We changed our name because
we felt the Lime Energy brand reflects the image that we wish to convey to our customers,
shareholders and the broader electricity and energy efficiency industry. Lime is an acronym for
Less Is More Efficient, which we feel more accurately describes the green energy efficiency
technologies offered by Lime Energy and further positions us as a unique player in the energy
market. Because of the change of our name, on September 22, 2006 our ticker symbol changed to
LMEC.
Special Committee of the Board of Directors
Due to potential conflicts of interest resulting from (i) certain members of our board of
directors beneficially owning Series E shares and being asked to purchase shares of common stock in
the PIPE Transaction and concurrently convert their Series E shares into our common stock, and (ii)
Dan Parkes ownership interest in Parke P.A.N.D.A. Corporation, our board of directors
established a special committee comprised of disinterested, independent directors to review,
negotiate and approve the acquisition of Parke and the PIPE Transaction. The special committee
retained Rittenhouse Capital Partners, LLC (Rittenhouse) to act as its financial advisor, and
legal counsel to assist it in its review of these transactions. Rittenhouse reviewed the Parke
acquisition and delivered to the special committee an opinion to the effect that the purchase price
paid for Parke was fair to us from a financial point of view. It also provided information, advice
and analysis to assist the committee in its review of the structure and pricing of the PIPE
Transaction. Legal counsel assisted the special committee in its review of these transactions and
advised the committee on its duties and responsibilities. After considering all of the information
it had gathered, the committee concluded that these transactions were in the best interests of the
Company and its stockholders, and approved the Parke acquisition and the PIPE Transaction.
Acquisition of Kapadia Consulting, Inc.
On September 26, 2006, we acquired Kapadia Consulting, Inc., effective September 27, 2006, for
consideration consisting of $1.25 million in cash and 500,000 shares of Lime Energy common stock.
Kapadia, which we have renamed Kapadia Energy Services, Inc., is an engineering firm that
specializes in energy management consulting and energy efficient lighting upgrades for commercial
and industrial users. Kapadia has seven employees, is headquartered in Peekskill, New York and has
an office in Ventura, California.
Acquisitions of Texas Energy and Preferred Lighting
On June 6, 2007, our newly formed subsidiary acquired the assets and assumed certain
liabilities of George Bradley Boyett dba Texas Energy Products retroactive to May 31, 2007 for
$300,000 in cash and
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200,000 shares of our common stock. The new subsidiary will operate under the name Texas Energy
Products, Inc. Texas Energy specializes in providing energy efficient lighting upgrades for
commercial and industrial users, is headquartered in Austin, Texas and had four employees as of May
31, 2007.
On August 6, 2007, retroactive to July 31, 2007, our newly formed subsidiary acquired certain
assets and assumed certain liabilities of Preferred Lighting, Inc., a Seattle, Washington based
energy services provider, for $300,000 in cash and 105,485 shares of our common stock. Preferred
Lighting also specializes in providing energy efficient lighting upgrade services for commercial
and industrial customers. Preferred had four employees as of July 31, 2007.
Amendment to Certificate of Incorporation
As described under Reverse Stock Split above, on January 23, 2007 we filed an amendment to
our Certificate of Incorporation to make effective a 1 for 15 reverse split of our common stock on
that date. The amendment made no other changes to our capital stock or to any other provisions of
our Certificate of Incorporation.
Director Changes
Effective January 26, 2007, Joseph F. Desmond joined our Board of Directors. See Directors,
Executive Officers, Promoters and Control Persons for additional information regarding Mr.
Desmond.
Effective June 8, 2007, Gerald A. Pientka resigned from our Board of Directors.
Rights Offering
On March 30, 2007 we completed a rights offering to all of our stockholders, except for the
former holders of our series E convertible preferred stock and Daniel Parke (who waived their right
to participate), raising a total of $2,999,632 through the issuance of 2,999,632 shares of our
common stock to 260 of our existing stockholders.
Subordinated Convertible Notes
During the second quarter of 2007, we entered into a loan agreement with eight investors,
including Richard Kiphart, our chairman and largest individual investor, under which we raised $5
million in the form of subordinated convertible notes. The notes mature on May 31, 2010, although
they may be prepaid at anytime after May 31, 2008 at our option without penalty, and accrues
interest at the rate of 10% per year. Interest is payable quarterly, 50% in cash and 50% in shares
of our common stock valued at the market price of our common stock on the interest due date. The
notes are convertible at any time at the Investors election at $1.00 per share and will
automatically convert to shares of common stock at $1.00 per share, if, at any time after May 31,
2008, the closing price of our common stock exceeds $1.50 per share for 20 days in any consecutive
30-day period. The notes are secured by all of our assets, but are subordinated to all of our
current or future senior lenders, including our current mortgage lender.
The Restructured Company
After effecting the PIPE Transaction, the rights offering and the acquisitions we have the
following:
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Cash of approximately $8 million (as of June 30, 2007); |
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One class of outstanding equity (common stock), with no outstanding preferred stock
or convertible debt; |
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Approximately 99 employees; |
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Eleven sales offices located in New York; Chicago; San Diego; Glendora, California;
Danville, California; Carmel, California; Ventura, California; Salt Lake City; Austin;
Seattle; and Dallas; |
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Proprietary technology that controls and reduces energy consumed in commercial
lighting and HVAC applications; |
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A business that designs, engineers and installs energy efficient lighting upgrades
for commercial and industrial users; and |
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A largely revamped board of directors (5 of the 7 directors have joined the Board
since October 2005) and senior management team (our CEO and our President both joined
the Company in 2006). |
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We believe that as a result of these recently implemented changes we will be better positioned
to take advantage of the growth in demand for energy efficiency products and services, hopefully
leading to improved profitability and cash flow. We also believe that there are opportunities for
future acquisitions that could broaden our product line, increase our geographic reach and lead us
to new markets for our products, all of which we hope would also contribute to increased sales and
to profitability.
The Offering
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Securities Offered
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The selling stockholders are offering from time
to time up to 40,633,588 shares of our common
stock. |
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Terms of the Offering
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We have agreed to use our best efforts to keep
the registration statement of which this
prospectus is a part effective until all the
shares of the selling stockholders registered
under the registration statement have been sold
or may be sold without volume restrictions
pursuant to Rule 144(k) under the Securities
Act. |
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Use of Proceeds
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We will not receive any of the proceeds from any
sale of the shares offered by this prospectus by
the selling stockholders. To the extent a
selling stockholder exercises its warrant for
cash, we intend to use the proceeds we receive
from such exercise(s) for general corporate
purposes. |
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OTC Bulletin Board Symbol
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LMEC |
RISK FACTORS
The following disclosure of risk factors includes all material risks known to us at this
time. Additional risks we are not presently aware of or that we currently believe are
immaterial may prove to impair our business and financial performance. Our business could be harmed
by any of these risks, whether stated or unstated. We operate in a continually changing business
environment and may as a result enter into new businesses and product lines. We cannot predict new
risk factors that may arise in the future, and we cannot assess the impact, if any, of these new
risk factors on our businesses or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those projected in any forward-looking statements.
Accordingly, you should not rely on forward-looking statements as a prediction of actual results.
In addition, our estimates of future operating results are based on our current complement of
businesses, which is subject to change as we continue to assess and refine our business strategy.
If any of the following risks actually occur, our business, results of operations, and financial
condition could be adversely affected in a material manner and could negatively affect the value of
your investment.
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Risks Related to Our Business
We have incurred significant operating losses since inception and may not achieve or sustain
profitability in the future.
We have experienced operating losses and negative cash flow from operations since our
inception in December 1997 and we currently have an accumulated deficit. Our ability to continue
as a going concern is ultimately dependent on our ability to increase sales to a level that will
allow us to operate profitably and sustain positive operating cash flows. Although we are
continuing our efforts to improve profitability through expansion of our business in both current
and new markets, we must overcome marketing hurdles, including gaining market acceptance, in order
to sell large quantities of our products and services. In addition, we may be required to reduce
the prices of our products in order to increase sales. If we reduce prices, we may not be able to
reduce costs sufficiently to achieve acceptable profit margins. As we strive to grow our business,
we have spent and expect to continue to spend significant funds (1) for general corporate purposes,
including working capital, marketing, recruiting and hiring additional personnel; and (2) for
research and development. To the extent that our revenues do not increase as quickly as these costs
and expenditures, our results of operations and liquidity will be materially adversely affected. If
we experience slower than anticipated revenue growth or if our operating expenses exceed our
expectations, we may not achieve profitability. Even if we achieve profitability in the future, we
may not be able to sustain it.
Failure to effectively market our energy management products and services could impair our
ability to sell significant quantities of these products and services.
One of the challenges we face in commercializing our energy management products and services
is demonstrating the advantages of our products and services over competitive products and
services. To do this, we will need to further develop our marketing and sales force. If we do not
successfully develop and expand our internal sales force, we may not be able to generate
significant revenues.
If our products and services do not achieve or sustain market acceptance, our ability to
compete will be adversely affected.
To date, we have not sold our eMAC product line in very large quantities and a sufficient
market may not develop for it. Significant marketing will be required in order to establish a
sufficient market for these products. The technology underlying our products may not become a
preferred technology to address the energy management needs of our customers and potential
customers. Failure to successfully develop, manufacture and commercialize products on a timely and
cost-effective basis will have a material adverse effect on our ability to compete in the energy
management market or survive as a business.
Failure to replace a significant customer could materially and adversely affect our results
of operations and financial condition.
We have historically derived a significant portion of our annual revenue from a limited number
of customers. Seldom has any one customer represented 10% or more of our revenues for more than
one year in a row. This requires that we continually replace major customers, whose needs we have
satisfied, with one or more new customers. The failure to replace a major customer could have a
significant negative effect on our results of operations and financial condition. We believe that
as a result of our recent acquisitions we will experience an increased diversification of our
customer base, reducing the amount of our revenue associated with several large customers, but this
remains to be seen.
A decrease in electric retail rates could lessen demand for our products.
Our products and services have the greatest sales and profit potential in areas where
commercial electric rates are relatively high. However, retail electric rates for commercial
establishments in the United States may not remain at their current levels. Due to a potential
overbuilding of power generating stations in certain regions of the United States, wholesale power
prices may decrease in the future. Because the price of commercial retail
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electric power is largely attributed to the wholesale cost of power, it is reasonable to expect
that commercial retail rates may decrease as well. In addition, much of the wholesale cost of power
is directly related to the price of certain fuels, such as natural gas, oil and coal. If the
prices of those fuels decrease, the prices of the wholesale cost of power may also decrease. This
could result in lower electric retail rates and reduced demand for our energy saving products and
services.
If we are not able to protect our intellectual property rights against infringement, or if
others obtain intellectual property rights relating to energy management technology, we
could lose our competitive advantage in the energy management market.
We regard our intellectual property rights, such as patents, licenses of patents, trademarks,
copyrights and trade secrets, as somewhat important to our success. Although we have entered into
confidentiality and rights to inventions agreements with our employees and consultants, the steps
we have taken to protect our intellectual property rights may not be adequate. Third parties may
infringe or misappropriate our intellectual property rights or we may not be able to detect
unauthorized use and take appropriate steps to enforce our rights. Failure to take appropriate
protective steps could materially adversely affect any competitive advantage we may have in the
energy management market. In addition, patents held by third parties may limit our ability to
manufacture, sell or otherwise commercialize products and could result in the assertion of claims
of patent infringement against us. If that were to happen, we could try to modify our products to
be non-infringing, but we might not be successful or such modifications might not avoid infringing
on the intellectual property rights of third parties.
Claims of patent infringement against us, regardless of merit, could result in the expenditure
of significant financial and managerial resources by us. We could be forced to seek to enter into
license agreements with third parties to resolve claims of infringement by our products of the
intellectual property rights of third parties. Such licenses may not be available on acceptable
terms or at all. The failure to obtain such licenses on acceptable terms could have a negative
effect on our business.
If we are unable to achieve or manage our growth, it will adversely affect our business, the
quality of our products and services, and our ability to attract and retain key personnel.
If we succeed in growing our sales as we need to do, we will be subject to the risks inherent
in the expansion and growth of a business enterprise. Growth in our business will place a strain on
our operational and administrative resources and increase the level of responsibility for our
existing and new management personnel. To manage our growth effectively, we will need to:
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further develop and improve our operating, information, accounting, financial and
other internal systems and controls on a timely basis; |
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improve our business development, marketing and sales capabilities; and |
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expand, train, motivate and manage our employee base. |
Our systems currently in place may not be adequate if we grow and may need to be modified and
enhanced. The skills of management currently in place may not be adequate if we experience
significant growth.
If our management fails to properly identify companies to acquire and to effectively
negotiate the terms of these acquisition transactions, our growth may be impaired.
As part of our growth strategy, we intend to seek to acquire companies with complementary
technologies, products and/or services. Our management, including our board of directors, will have
discretion in identifying and selecting companies to be acquired by us and in structuring and
negotiating these acquisitions. In general, our common stockholders may not have the opportunity to
approve these acquisitions. In addition, in making acquisition decisions, we will rely, in part,
on financial projections developed by our management and the management of potential target
companies. These projections will be based on
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assumptions and subjective judgments. The actual operating results of any acquired company or
the combination of us and an acquired company may fall significantly short of projections.
We may be unable to acquire companies that we identify as targets for various reasons, including:
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our inability to interest such companies in a proposed transaction; |
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our inability to agree on the terms of an acquisition; |
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incompatibility between our management and management of a target company; and |
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our inability to obtain the approval of the holders of our common stock, if required. |
If we cannot consummate acquisitions on a timely basis or agree on terms at all, or if we
cannot acquire companies with complementary technologies, products and/or services on terms
acceptable to us, our future growth may be impaired.
Our growth may be impaired and our current business may suffer if we do not successfully
address risks associated with acquisitions.
Since January 1, 2000, we have acquired seven companies; Switchboard Apparatus Inc., Great
Lakes Controlled Energy Corporation, Maximum Performance Group, Inc., Parke P.A.N.D.A. Corporation;
Kapadia Consulting, Inc.; Texas Energy Products and Preferred Lighting, Inc., two of which
(Switchboard Apparatus and Great Lakes Controlled Energy) we subsequently sold at a loss. Our
future growth may depend, in part, upon our ability to successfully identify, acquire and operate
other complementary businesses. We may encounter problems associated with such acquisitions,
including the following:
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difficulties in integrating acquired operations and products with our existing
operations and products; |
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difficulties in meeting operating expectations for acquired businesses; |
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diversion of managements attention from other business concerns; |
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adverse impact on earnings of amortization or write-offs of goodwill and other
intangible assets relating to acquisitions; and |
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issuances of equity securities that may be dilutive to existing stockholders to pay
for acquisitions. |
In addition, often an acquired companys performance is largely dependent on a few key people,
particularly in smaller companies. If these key people leave the company, become less focused on
the business or less motivated to make the business successful after the acquisition, the
performance of the acquired company may suffer.
If sufficient additional funding is not available to us, the commercialization of our
products and services and our ability to grow is likely to be hindered.
Our operations have not generated positive cash flow since the inception of the Company in
1997. We have funded our operations through the issuance of common and preferred stock and secured
debt. Our ability to continue to operate until our cash flow turns positive may depend on our
ability to continue to raise funds through the issuance of equity or debt. If we are not
successful in raising additional funds, we might have to significantly scale back or delay our
growth plans, sell some of our businesses or possibly cease operations altogether. Any reduction or
delay in our growth plans could materially adversely affect our ability to compete in the
marketplace, take advantage of business opportunities and develop or enhance our products and
services. If we should have to cease operations altogether, our stockholders investment is likely
to be lost.
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Raising additional capital or consummation of additional acquisitions through the issuance
of equity or equity-linked securities could dilute your ownership interest in us.
We have recently raised additional capital through the issuance of common stock and
convertible notes to repay debt, fund acquisitions, grow our product development, marketing and
sales activities at the pace that we intend, and to continue to fund operating losses until our
cash flow turns positive. We may find it necessary to raise capital again some time in the future.
If we raise additional funds in the future through the issuance of equity securities or
convertible debt securities, our existing stockholders will likely experience dilution of their
present equity ownership position and voting rights. Depending on the number of shares issued and
the terms and conditions of the issuance, new equity securities could have rights, preferences, or
privileges senior to those of our common stock. Depending on the terms, common stock holders may
not have approval rights with respect to such issuances.
Risks Related to this Offering
Due to the current market price of our common stock, in conjunction with the fact that we
are a relatively small company with a history of operating losses, the future trading market
for our stock may not be active on a consistent basis, which may make it difficult for you
to sell your shares.
The trading volume of our stock in the future depends in part on our ability to increase our
revenue and reduce or eliminate our operating losses, which should increase the attractiveness of
our stock as an investment, thereby leading to a more liquid market for our stock on a consistent
basis. If we are unable to achieve these goals, the trading market for our stock may be negatively
affected, which may make it difficult for you to sell your shares. In addition, we have recently
moved from The American Stock Exchange to the OTC Bulletin Board because we no longer meet AMEX
listing criteria. Our move to the OTC Bulletin Board may result in reduced liquidity and increased
volatility for our stock. If an active and liquid trading market does not exist for our common
stock, you may have difficulty selling your shares.
Due to the move from The American Stock Exchange to the OTC Bulletin Board, holders of our
common stock will no longer have certain approval rights available under the AMEX Rules.
The American Stock Exchange has rules which listed companies must comply with. Among other
things, the AMEX Rules require shareholder approval as a prerequisite to approving applications to
list additional shares to be issued in connection with certain transactions. For example, AMEX
Rule 713 requires shareholder approval if a company issues shares equal to or greater than 20% of
its currently outstanding shares, if such issuance is at a price below the greater of book or
market value of the shares. Although we are subject to the Delaware General Corporation Law, it is
less restrictive and does not require stockholder approval of such a transaction. Accordingly, now
that our stock is no longer listed on the AMEX, we may issue shares for less than the greater of
book or market value and take certain other actions without stockholder approval which we could not
have taken without shareholder approval when our common stock was listed on AMEX.
Due to the concentration of holdings of our stock, a limited number of investors may be
able to control matters requiring common stockholder approval or could cause our stock price
to decline through future sales because they beneficially own a large percentage of our
common stock.
There were 53,767,612 shares of our common stock outstanding as of September 12, 2007, of
which the PIPE Investors (a total of 17 investors) and The Parke Family Trust beneficially own in
the aggregate approximately 90%. As a result of their significant ownership, these investors may
have the ability to exercise a controlling influence over our business and corporate actions
requiring stockholder approval, including the election of our directors, a sale of substantially
all of our assets, a merger between us and another entity or an amendment to our certificate of
incorporation. This concentration of ownership could delay, defer or prevent a change of control
and could adversely affect the price investors might be willing to pay in the future for shares of
our common stock. Also, in the event of a sale of our business, these investors could be able to
seek to receive a control premium to the exclusion of other common stockholders.
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A significant percentage of the outstanding shares of our common stock, including the shares
beneficially owned by these holders, can be sold in the public market from time to time, subject to
limitations imposed by Federal securities laws. The market price of our common stock could decline
as a result of sales of a large number of our presently outstanding shares of common stock by these
investors or other stockholders in the public market or due to the perception that these sales
could occur. This could also make it more difficult for us to raise funds through future offerings
of our equity securities or for you to sell your shares if you choose to do so.
The large concentration of our shares held by this small group of shareholders could result in
increased volatility in our stock price due to the limited number of shares available in the
market.
Provisions of our charter and by-laws, in particular our blank check preferred stock,
could discourage an acquisition of our company that would benefit our stockholders.
Provisions of our charter and by-laws may make it more difficult for a third party to acquire
control of our company, even if a change in control would benefit our stockholders. In particular,
shares of our preferred stock may be issued in the future without further stockholder approval and
upon those terms and conditions, and having those rights, privileges and preferences, as our Board
of Directors may determine. In the past, we have issued preferred stock with dividend and
liquidation preferences over our common stock, and with certain approval rights not accorded to our
common stock, and which was convertible into shares of our common stock at a price lower than the
market price of our common stock. The rights of the holders of our common stock will be subject
to, and may be adversely affected by, the rights of the holders of any preferred stock we may issue
in the future. The issuance of our preferred stock, while providing desirable flexibility in
pursuing possible additional equity financings and other corporate purposes, could have the effect
of making it more difficult for a third party to acquire control of us. This could limit the price
that certain investors might be willing to pay in the future for shares of our common stock and
discourage these investors from acquiring a majority of our common stock. In addition, the price
that future investors may be willing to pay for our common stock may be lower due to the conversion
price and exercise price granted to investors in any such private financing.
We do not intend to pay dividends on shares of our common stock in the foreseeable future.
We currently expect to retain our future earnings, if any, for use in the operation and
expansion of our business. We do not anticipate paying any cash dividends on shares of our common
stock in the foreseeable future.
Compliance with changing regulation of corporate governance and public disclosure may result
in additional expenses.
Changing laws, regulations and standards relating to corporate governance and public
disclosure, including the Sarbanes-Oxley Act of 2002, are creating uncertainty for companies such
as ours. We are committed to maintaining high standards of corporate governance and public
disclosure. As a result, we intend to invest reasonably necessary resources to comply with evolving
standards, and this investment may result in increased general and administrative expenses and a
diversion of management time and attention from revenue-generating activities to compliance
activities, which could harm our business prospects.
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USE OF PROCEEDS
We will not receive any of the proceeds from any sale of the shares offered by this prospectus
by the selling stockholders. If and when a selling stockholder exercises its common stock warrants,
we may receive up to $3,698,463 from the issuance of shares of common stock to such selling
stockholder. The warrants have exercise prices ranging from $1.00 to $47.70 per common share. Some
of the warrants contain a cashless exercise option, which permits the holder to surrender a portion
of the shares issuable upon exercise of the warrant as payment of the exercise price. To the
extent the holder of a warrant elects the cashless exercise option, the cash received by us and the
number of shares issued upon exercise of such warrant will be reduced. Any cash received as a
result of the exercise of any of the warrants will be used by the Company for general corporate
purposes.
PLAN OF DISTRIBUTION
We have agreed to register for public resale shares of our common stock which have been issued
to the selling stockholders or may be issued in the future to the selling stockholders upon
exercise of the warrants. We have agreed to use our best efforts to keep the registration
statement, of which this prospectus is a part, effective until all the shares of the selling
stockholders registered hereunder have been sold or may be sold without volume restrictions
pursuant to Rule 144(k) under the Securities Act. The aggregate proceeds to the selling
stockholders from the sale of shares offered pursuant to this prospectus will be the prices at
which such securities are sold, less any commissions. The selling stockholders may choose not to
sell any or all of the shares of our common stock offered pursuant to this prospectus.
The selling stockholders may, from time to time, sell all or a portion of the shares of our
common stock at fixed prices, at market prices prevailing at the time of sale, at prices related to
such market prices or at negotiated prices. The selling stockholders may offer their shares of our
common stock at various times in one or more of the following transactions:
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on any securities exchange, market or trading facility on which our common stock may be listed at the time of sale; |
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in an over-the-counter market in which the shares are traded; |
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through block trades in which the broker or dealer so engaged will attempt to sell the shares as agent, but may
purchase and resell a portion of the block as principal to facilitate the transaction; |
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through purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant
to this prospectus; |
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in ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
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through options, swaps or derivatives; |
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in privately negotiated transactions; |
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in transactions to cover short sales; |
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through a combination of any such methods of sale; and
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through any other method permitted by law. |
The selling stockholders may also sell their shares of our common stock in accordance with
Rule 144 under the Securities Act, rather than pursuant to this prospectus. The selling
stockholders shall have the sole and absolute discretion not to accept any purchase offer or make
any sale of shares if they deem the purchase price to be unsatisfactory at any particular time.
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The selling stockholders may sell their shares of our common stock directly to purchasers or
may use brokers, dealers, underwriters or agents to sell such shares. In effecting sales, brokers
and dealers engaged by the selling stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers may receive commissions, discounts or concessions from a selling
stockholder or, if any such broker-dealer acts as agent for the purchaser of such shares, from a
purchaser, in amounts to be negotiated. Such compensation may, but is not expected to, exceed that
which is customary for the types of transactions involved. Broker-dealers may agree with a selling
stockholder to sell a specified number of such shares at a stipulated price per share, and, to the
extent a broker-dealer is unable to do so acting as agent for a selling stockholder, to purchase as
principal any unsold shares at the price required to fulfill the broker-dealer commitment to the
selling stockholder. Broker-dealers who acquire shares as principal may thereafter resell such
shares from time to time in transactions which may involve block transactions and sales to and
through other broker-dealers, including transactions of the nature described above, in the
over-the-counter market or otherwise, at prices and on terms then prevailing at the time of sale,
at prices then related to the then-current market price or in negotiated transactions. In
connection with such resales, broker-dealers may pay to or receive from the purchasers of such
shares commissions as described above.
From time to time the selling stockholders may engage in short sales (i.e. the sale of our
stock when the seller does not own our stock by borrowing shares from someone who does), short
sales against the box (i.e. the sale of shares borrowed from another shareholder while continuing
to hold an equivalent number of shares), puts, calls and other hedging transactions in our
securities, and may sell and deliver their shares of our common stock in connection with such
transactions or in settlement of securities loans. These transactions may be entered into with
broker-dealers or other financial institutions. In addition, from time to time a selling
stockholder may pledge its shares pursuant to the margin provisions of its customer agreement with
its broker-dealer or secure loans from financial institutions. Upon default by a selling
stockholder, the broker-dealer or financial institution may offer and sell such pledged shares from
time to time.
The selling stockholders and any broker-dealer participating in the distribution of the shares
of common stock may be deemed to be underwriters within the meaning of the Securities Act, and
any commissions paid, or any discounts or concessions allowed to any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus supplement, if required,
will be distributed which will set forth the aggregate amount of shares of common stock being
offered and the terms of the offering, including the name or names of any broker-dealers or agents,
any discounts, commissions and other terms constituting compensation from the selling stockholders
and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in most states the
shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied
with.
There can be no assurance that any selling stockholders will sell any or all of the shares of
common stock registered pursuant to the registration statement of which this prospectus forms a
part.
The selling stockholders and any other person participating in such distribution will be
subject to applicable provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of common stock by the selling stockholders and any other
participating person.
Regulation M may also restrict the ability of any person engaged in the distribution of the
shares of common stock to engage in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with respect to the shares of
common stock.
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A portion of the shares of common stock which are being registered hereunder may be issued
upon exercise of warrants which we have issued to certain of the selling stockholders. This
prospectus does not cover the sale or transfer of any such warrants. If a selling stockholder
transfers its warrant prior to exercise thereof, the transferee(s) may not sell the shares of
common stock issuable upon exercise of such warrant under the terms of this prospectus unless we
first amend or supplement this prospectus to cover such shares and such seller.
We are required to pay all fees and expenses incident to the registration of the shares of our
common stock offered hereby (other than broker-dealer discounts and commissions) which we estimate
to be $174,579 in total, including, without limitation, Securities and Exchange Commission filing
fees, expenses of compliance with state securities or blue sky laws, legal and accounting fees
and transfer agent fees relating to sales pursuant to this prospectus; provided, however, that the
selling stockholders will pay all underwriting discounts and selling commissions, if any. We have
agreed to indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act of 1933, as amended.
Once sold under the registration statement of which this prospectus forms a part, the shares
of common stock will be freely tradable in the hands of persons other than our affiliates.
LEGAL PROCEEDINGS
From time to time, the Company has been a party to pending or threatened legal proceedings and
arbitrations that are routine and incidental to its business. Based upon information presently
available, and in light of legal and other defenses available to the Company, management does not
consider the liability from any threatened or pending litigation to be material to the Company.
DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The table below shows certain information about our directors, executive officers and
significant employees as of September 1, 2007:
|
|
|
|
|
|
|
Name |
|
Age |
|
Principal Positions |
David R. Asplund |
|
|
49 |
|
|
Chief Executive Officer and Director |
Gregory T. Barnum |
|
|
52 |
|
|
Director (1)(2) |
William R. Carey, Jr. |
|
|
59 |
|
|
Director (1)(3) |
Joseph F. Desmond |
|
|
44 |
|
|
Director (3) |
Richard P. Kiphart |
|
|
66 |
|
|
Director (2)(3) |
Jeffrey R. Mistarz |
|
|
49 |
|
|
Executive Vice President, Chief Financial Officer, Treasurer and Secretary |
Daniel W. Parke |
|
|
51 |
|
|
President, Chief Operating Officer, President Parke Industries and Director |
Leonard Pisano |
|
|
44 |
|
|
Executive Vice President, President of Maximum Performance Group |
David W. Valentine |
|
|
37 |
|
|
Director (1)(2) |
|
|
|
(1) |
|
Member of our Audit Committee. |
|
(2) |
|
Member of our Compensation Committee. |
|
(3) |
|
Member of our Governance and Nominating Committee. |
Our Board of Directors is currently authorized for a membership of up to twelve
directors. As of September 13, 2007, our Board of Directors had five vacancies.
16
David R. Asplund has been one of our directors since June 2002 and has been our
chief executive officer since January 2006. Mr. Asplund has a degree in mechanical engineering from
the University of
Minnesota. Prior to becoming CEO of Lime Energy, Mr. Asplund was president of Delano Group
Securities, LLC, an investment banking firm in Chicago, Illinois, which he founded in 1999. Mr.
Asplund is also serves on the board of Agenet, Inc.
Gregory T. Barnum has been one of our directors since March 2006. Mr. Barnum is currently the
vice president of finance and chief financial officer of Datalink Corporation, an information
storage architect. Prior to joining Datalink in March 2006, Mr. Barnum was the vice president of
finance, chief financial officer and corporate secretary of Computer Network Technology
Corporation. From September 1992 to July 1997, Mr. Barnum served as senior vice president of
finance and administration, chief financial officer and corporate secretary at Tricord Systems,
Inc., a manufacturer of enterprise servers. From May 1988 to September 1992, Mr. Barnum served as
the executive vice president, finance, chief financial officer, treasurer and corporate secretary
for Cray Computer Corporation, a development stage company engaged in the design of supercomputers.
Prior to that time, Mr. Barnum served in various accounting and financial management capacities
for Cray Research, Inc., a manufacturer of supercomputers. Mr. Barnum also serves on the board of
Wireless Ronin Technologies, Inc. Mr. Barnum is a Certified Public Accountant and a member of the
American Institute of Certified Public Accountants.
William R. (Max) Carey has been one of our directors since March 2006. Mr. Carey is the
chairman of the CRD Companies: CRD, CRD Capital, and CRD Analytics, which he founded in 1981. He
is also a managing director of Entrepreneur Equity Corporation, an insurance broker that creates
specialty products for middle market companies. Mr. Carey also serves on the boards of Outback
Steakhouse Inc., Kforce, Inc., Crosswalk.com and J.B. Hanauer & Co., and is a founding board member
of Crosswalk.com.
Joseph F. Desmond has been one of our directors since January 2007. Mr. Desmond is
the Senior Vice President, External Affairs for NorthernStar Natural Gas, a developer of
liquefied natural gas import terminals. From May 2005 until November 2006, Mr. Desmond served as
the Chairman of the California Energy Commission. From May 2006 to November 2006, Mr. Desmond also
served as the Under Secretary for Energy Affairs in the California Resources Agency. Prior to his
public service for the State of California, Mr. Desmond served as President and Chief Executive
Officer of Infotility, Inc., an energy consulting and software development firm based in Boulder,
Colorado. From 1997 to 2000, Mr. Desmond was President and Chief Executive Officer of Electronic
Lighting, Inc., a manufacturer of controllable lighting systems, and from 1991 to 1997 he was with
Parke Industries, where he served as vice president.
Richard P. Kiphart has been one of our directors since January 2006, when he also became
chairman of our board of directors. Mr. Kiphart is the head of the Corporate Finance Department
and a Principal of William Blair & Company Investment firm. In addition, Mr. Kiphart currently
serves as a member of the board of directors of First Data Corp., and previously served on the
Concord EFS board of directors from 1997 until 2004 and was chairman of the Concord board of
directors from February 2003 until March 2004. Mr. Kiphart is also currently a director of SAFLINK
Corporation, Advanced Biotherapy, Inc. and Nature Vision, Inc. In addition he is the former
chairman of the Merit Music School, is the president and chief executive officer of the Lyric Opera
of Chicago, and the vice chairman of the Erikson Institute. He also serves on the board of DATA
(Debt AIDS Trade Africa). Mr. Kiphart is the father in-law of David Valentine, one of our
directors.
Jeffrey R. Mistarz has been our chief financial officer since January 2000, our treasurer
since October 2000, an executive vice president since November 2002, our assistant secretary since
February 2003 and our secretary since June 2006. From January 1994 until joining us, Mr. Mistarz
served as chief financial officer for Nucon Corporation, a privately held manufacturer of material
handling products and systems, where he was responsible for all areas of finance and accounting,
managing capital and stockholder relations. Prior to joining Nucon, Mr. Mistarz was with First
Chicago Corporation (now JPMorgan Chase & Co.) for 12 years where he held several positions in
corporate lending, investment banking and credit strategy.
17
Daniel W. Parke has been our president and chief operating officer since we acquired Parke
P.A.N.D.A. Corporation, which he owned and served as its president from its founding in 2001. In
addition to serving as our president and chief operating officer, Mr. Parke continues to serve as
the president of Parke, which is now named Parke Industries LLC. Mr. Parke was previously a
founder of Parke Industries, Inc., an energy solutions provider which was acquired in February 1998
by Strategic Resource Solutions, an unregulated subsidiary of Carolina Power & Light.
Leonard Pisano has been our executive vice president of business development since June 2006.
From May 3, 2005, the date we acquired Maximum Performance Group, Inc., until June 2006, he served
as our Chief Operating Officer. He is also Maximum Performance Groups President and has been from
its founding in February 2003. Prior to that, Mr. Pisano founded Maximum Energy Services in early
2001 and served as its president until it merged with Pentech Solutions to form Maximum Performance
Group in February 2003. During his career, Mr. Pisano has held various senior management positions
at companies within the energy services sector, including Parke Industries Inc. and SRS, a division
of Carolina Power and Light. Prior to entering the energy services sector, Mr. Pisano spent ten
years in facilities management at New York University, leaving NYU in 1996 when he was Director of
Facilities.
David W. Valentine has been one of our directors since May 2004. David Valentine has been
president and managing partner of Broadreach Financial Group LLC, a financial advisory firm, and
managing partner of the Broadreach Steward Fund LLC, a private equity fund, since May 2006.
Previously, Mr. Valentine was a portfolio manager at Magnetar Capital LLC, a multi-billion dollar
hedge fund based in Evanston, Illinois. Mr. Valentine serves on the boards of Ambiron Trustwave
LLC, Advanced Biotherapy Inc., Inovomed, Inc., and Friends of the Global Fight against AIDS,
Malaria and Tuberculosis. Mr. Valentine is the son-in-law of Richard Kiphart, our chairman.
Independent Directors
Of the seven directors currently serving on the Board, the Board has determined that each of
Messrs. Barnum, Carey, Desmond, Kiphart and Valentine are independent directors as defined in
Section 121(A) of the American Stock Exchange listing standards.
18
SELLING STOCKHOLDERS
The 40,633,588 shares of common stock being offered by the selling stockholders consist of
40,268,921 shares that have been issued, and 364,667 shares issuable upon exercise of warrants
owned by the selling stockholders. We are registering the shares of common stock so that the
selling stockholders may offer the shares for resale from time to time.
Securities which have been acquired directly from the Company in a transaction not involving
any public offering are usually considered restricted securities. The sale of restricted
securities is generally restricted by the Securities Act of 1933, as amended. Rule 144 under the
Securities Act of 1933 provides certain conditions under which restricted securities may be sold,
and provisions under which any sales of restricted or unrestricted securities by our affiliates
may be made. During any 90 day period the sale of restricted securities, or the sale of any
securities by those shareholders who are deemed to be affiliates of the Company, is limited by
Rule 144 to the greater of one percent (1%) of the outstanding shares of the Companys common
stock, or the average weekly trading volume of the Companys common stock during the preceding four
week period. The term affiliate is defined in Rule 144 as a person that directly or indirectly
controls, is controlled by, or is under common control with, the issuer. In addition, for any sale
of restricted securities, the securities must have been held by the selling stockholder for at
least one year and they must be sold in brokers transactions (as defined in Rule 144). The
trading restrictions of Rule 144 continue to apply to affiliates for a period of three months
following the date on which the shareholder no longer is considered an affiliate of the Company.
All of the shares of common stock being offered under this prospectus are restricted securities,
but Rule 144 permits sales after the restricted securities have been held for one year, subject to
certain restrictions. Rule 144(k) permits sales without such restrictions if the securities have
been held two years or more and the seller is not and has not been an affiliate for at least
three months. Once the registration statement of which this prospectus forms a part is declared
effective, the selling stockholders will be able to sell the shares covered hereby without
complying with Rule 144, provided that the current prospectus is delivered as required by SEC rules
and the Securities Act of 1933, except that if any selling stockholder is an affiliate of the
Company at the time of any sale, the restrictions under Rule 144 relating to sales by affiliates
will continue to apply and except that a selling stockholder which is a broker-dealer is an
underwriter and is not eligible to rely on Rule 144. Any buyer which is an affiliate of the
Company at the time it later sells any of our securities will be subject to the restrictions under
Rule 144 relating to sales by affiliates. Otherwise, such buyer will be able to sell free of such
restrictions.
The table below lists the selling stockholders and other information regarding the beneficial
ownership of the common stock by each of the selling stockholders. The first column lists, for
each selling stockholder, the number of shares of common stock held by such stockholder including
shares issuable pursuant to exercise of warrants and options exercisable within 60 days to such
stockholder. The second column lists the shares of common stock (including shares issued or
issuable upon exercise of warrants) being offered by this prospectus by each selling stockholder.
The column titled Ownership After Offering assumes the sale of all of the shares offered by each
selling stockholder, although each selling stockholder may sell all, some or none of its shares in
this offering. Except as otherwise noted in the notes to the table below, the business address of
each selling stockholder is c/o the Company, 1280 Landmeier Road, Elk Grove Village, IL
60007-2410.
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ownership After |
|
|
Ownership Prior to Offering |
|
Securities Being |
|
Offering |
Selling Stockholder |
|
Shares |
|
% |
|
Offered |
|
Shares |
|
% |
|
David R. Asplund (1)(48) |
|
|
3,639,758 |
(2) |
|
|
6.560 |
% |
|
|
1,874,408 |
(3) |
|
|
1,765,350 |
|
|
|
3.182 |
% |
Augustine Fund LP (4) |
|
|
2,680,458 |
(5) |
|
|
4.984 |
% |
|
|
2,555,926 |
(6) |
|
|
124,532 |
|
|
|
* |
|
Bristol Capital Ltd. (7) |
|
|
70,000 |
(8) |
|
|
* |
|
|
|
60,000 |
(9) |
|
|
10,000 |
|
|
|
* |
|
Christopher Capps |
|
|
25,858 |
|
|
|
* |
|
|
|
25,741 |
(10) |
|
|
117 |
|
|
|
* |
|
Cinergy Ventures II, LLC (11) |
|
|
3,150,260 |
(12) |
|
|
5.854 |
% |
|
|
2,823,847 |
(13) |
|
|
326,413 |
|
|
|
* |
|
John Donohue |
|
|
307,459 |
(14) |
|
|
* |
|
|
|
286,613 |
(15) |
|
|
20,846 |
|
|
|
* |
|
Gregory H. Ekizian Revocable Trust |
|
|
413,733 |
|
|
|
* |
|
|
|
411,866 |
(16) |
|
|
1,867 |
|
|
|
* |
|
Julia Gluck |
|
|
103,433 |
|
|
|
* |
|
|
|
102,966 |
(17) |
|
|
467 |
|
|
|
* |
|
John Thomas Hurvis Revocable Trust |
|
|
566,041 |
(18) |
|
|
1.053 |
% |
|
|
505,934 |
(19) |
|
|
60,107 |
|
|
|
* |
|
Ingalls & Snyder, LLC (20) |
|
|
6,314,948 |
|
|
|
11.745 |
% |
|
|
6,058,000 |
(20) |
|
|
256,948 |
|
|
|
* |
|
Rebecca Kiphart |
|
|
207,242 |
|
|
|
* |
|
|
|
205,934 |
(21) |
|
|
1,308 |
|
|
|
* |
|
Richard P. Kiphart (22)(4) |
|
|
15,923,058 |
(23) |
|
|
29.035 |
% |
|
|
14,213,260 |
(24) |
|
|
1,709,798 |
|
|
|
3.118 |
% |
Laurus Master Fund, Ltd (25) |
|
|
1,531,461 |
(26) |
|
|
2.838 |
% |
|
|
1,404,477 |
(27) |
|
|
126,984 |
|
|
|
* |
|
Leaf Mountain Company (28) |
|
|
3,312,634 |
|
|
|
6.161 |
% |
|
|
3,275,300 |
(29) |
|
|
37,334 |
|
|
|
* |
|
Martin Melish |
|
|
258,583 |
|
|
|
* |
|
|
|
257,416 |
(30) |
|
|
1,167 |
|
|
|
* |
|
Nettlestone Enterprises Ltd. (31) |
|
|
1,551,500 |
|
|
|
2.886 |
% |
|
|
1,544,500 |
(32) |
|
|
7,000 |
|
|
|
* |
|
Security Equity Fund, Mid Cap Value
Series (33)(48) |
|
|
130,717 |
(34) |
|
|
* |
|
|
|
130,717 |
(35) |
|
|
0 |
|
|
|
0.000 |
% |
SBL Fund Series V (33)(48) |
|
|
103,333 |
(36) |
|
|
* |
|
|
|
103,333 |
(37) |
|
|
0 |
|
|
|
0.000 |
% |
Security Mid Cap Growth Fund
(33)(48) |
|
|
91,967 |
(38) |
|
|
* |
|
|
|
91,967 |
(39) |
|
|
0 |
|
|
|
0.000 |
% |
SBL Fund Series J (33)(48) |
|
|
190,650 |
(40) |
|
|
* |
|
|
|
190,650 |
(41) |
|
|
0 |
|
|
|
0.000 |
% |
SF Capital Partners Ltd. (42) |
|
|
4,309,080 |
(43) |
|
|
8.014 |
% |
|
|
4,168,252 |
(44) |
|
|
138,015 |
|
|
|
* |
|
David W. Valentine (45) |
|
|
488,678 |
(46) |
|
|
* |
|
|
|
342,481 |
(47) |
|
|
152,864 |
|
|
|
* |
|
|
|
|
* |
|
Less than 1% |
|
(1) |
|
David Asplund is a Director and has been our CEO since January 2006. |
|
|
(2) |
|
Includes warrants to purchase 2,500 shares of common stock at $0.90 per share
anytime prior to September 7, 2008, which Mr. Asplund acquired in the ordinary course
of business. At the time when Mr. Asplund acquired the warrant he had no agreements
or understanding, directly or indirectly, with anyone to distribute the shares issuable
under such warrant. Also includes 6,766 shares of common stock and a warrant held by
Delano Group Securities, LLC, a broker-dealer of which Mr. Asplund is the principal
owner (and therefore an affiliate of Mr. Asplund), to purchase 2,000 shares of common
stock at $15.45 per share anytime prior to February 10, |
|
20
|
|
|
|
|
2010. Delano acquired the shares and warrant in the ordinary course of business and at the time when Delano acquired securities it had no agreements or understanding, directly
or indirectly, with anyone to distribute the shares or the shares issuable under such
warrant. The common stock and shares issuable pursuant to the warrant are not
included as a securities being offered as part of this prospectus. Also includes the
following employee and director options exercisable within 60 days: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise |
|
Expiration |
Quantity |
|
Price |
|
Date |
|
1,667 |
|
|
$ |
15.00 |
|
|
|
6/10/2013 |
|
|
2,222 |
|
|
$ |
15.00 |
|
|
|
6/10/2015 |
|
|
5,000 |
|
|
$ |
17.55 |
|
|
|
6/10/2012 |
|
|
1,666 |
|
|
$ |
27.75 |
|
|
|
6/10/2014 |
|
|
100,000 |
|
|
$ |
9.30 |
|
|
|
1/22/2016 |
|
|
100,000 |
|
|
$ |
0.96 |
|
|
|
1/22/2016 |
|
|
1,500,000 |
|
|
$ |
1.02 |
|
|
|
7/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
1,710,555 |
|
|
|
|
|
|
|
|
|
|
|
|
(3) |
|
Mr. Asplund acquired 1,854,200 shares on June 29, 2006, consisting of 1,500,000
purchased in the PIPE Transaction, and 354,200 acquired pursuant to the Series E
Conversion. Following the filing of the amendment which made a 1 for 15 reverse split
of our common stock effective on January 23, 2007 (the Reverse Split), the shares
acquired on June 29, 2006 were combined into 123,613 shares of common stock. On or
about February 1, 2007, we issued 1,730,587 catch-up shares to him in consideration
of his relinquishing any claims relating to the timing of the Reverse Split. See
Recent Events Reverse Stock Split. The 1,874,408 shares being offered by Mr.
Asplund consist of 1,652,200 catch-up shares, 100,000 shares deriving from the shares
issued pursuant to the Series E Conversion, 77,708 shares deriving from the shares
acquired in the PIPE Transaction and 44,500 shares issued on January 24, 2007 and
February 2, 2007 in satisfaction of penalties owed to Mr. Asplund due to the Companys
inability to register the shares he purchased in the PIPE Transaction on or before
November 3, 2006. |
|
(4) |
|
The controlling members, directors and officers, all of whom are Thomas
Duszynski, Brian Porter and John Porter, may be deemed to share power to vote or
dispose of the shares held by Augustine Fund LP. The business address of Augustine
Fund LP is 141 West Jackson Blvd., Suite 2182, Chicago, Illinois 60604. |
|
|
(5) |
|
Includes warrants to purchase 18,125 shares of common stock at $0.90 per share
anytime prior to their expiration on September 7, 2008. |
|
|
(6) |
|
Augustine Fund LP acquired 2,628,000 shares on June 29, 2006, consisting of
1,628,000 shares acquired pursuant to the Series E Conversion and 1,000,000 shares
purchased in the PIPE Transaction. Following the filing of the amendment which made
the Reverse Split effective on January 23, 2007, the shares acquired on June 29, 2006
were combined into 175,200 shares of common stock. On or about February 1, 2007, we
issued 2,452,800 catch-up shares to Augustine Fund in consideration of its
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 2,555,926 shares being offered by Augustine Fund
consist of 2,386,133 catch-up shares, 66,667 shares derived from the shares acquired
in the PIPE Transaction, 73,460 shares deriving from the shares issued pursuant to the
Series E Conversion, and 29,666 shares issued on January 24, 2007 and February 2, 2007
in satisfaction of penalties owed to Augustine due to the Companys inability to
register the shares it purchased in the PIPE Transaction on or before November 3, 2006. |
|
(7) |
|
Bristol Capital Ltd. is beneficially owned by Yelena Akselrod. Bristol Capital
Ltd. is currently acting as an Investor Relations consultant to the Company. |
|
(8) |
|
Includes a warrant to purchase 10,000 shares of common stock at $15.45 per
share anytime prior to its expiration on 1/25/08 and a warrant to purchase 60,000
shares of common stock at $1.00 per share anytime prior to its expiration on July 25,
2009. |
21
|
|
|
(9) |
|
Represents a warrant to purchase 60,000 shares of common stock at $1.00 per
share anytime prior to its expiration on July 25, 2009. All of the shares being
offered by Bristol Capital Ltd. are shares which would be acquired by exercising this
warrant. |
|
(10) |
|
Mr. Capps purchased 25,000 shares in the PIPE Transaction on June 29, 2006.
Following the filing of the amendment which made the Reverse Split effective on January
23, 2007, the shares acquired on June 29, 2006 were combined into 1,667 shares of
common stock. On or about February 1, 2007, we issued 23,333 catch-up shares to Mr.
Capps in consideration of his relinquishing any claims relating to the timing of the
Reverse Split. See Recent Events Reverse Stock Split. The 25,741 shares being
offered by Mr. Capps consist of 23,333 catch-up shares, 1,667 shares deriving from
the shares acquired in the PIPE Transaction and 741 shares issued on January 24, 2007
and February 2, 2007 in satisfaction of penalties owed to Mr. Capps due to the
Companys inability to register the shares he purchased in the PIPE Transaction on or
before November 3, 2006. |
|
(11) |
|
Cinergy Technologies, Inc. is a wholly-owned subsidiary of Cinergy Corp. a
publicly traded company, and is also the sole member of Cinergy Ventures II, LLC. Greg
Wolf, a vice president of Cinergy Ventures, has the authority to vote and dispose of
the shares held by Cinergy Ventures II, LLC. The business address of Cinergy Ventures
II, LLC is 139 East Fourth Street, Cincinnati, Ohio 45202. |
|
|
(12) |
|
Includes 3,106,927 shares of common stock, 40,000 shares of common stock
issuable upon exercise of warrants and 3,333 shares of common stock issuable upon
exercise of options. The warrants carry an exercise price of $0.90 per share.
Warrants to purchase 40,000 shares expire on September 7, 2008. The options carry an
exercise price of $16.05 per share and expire on July 23, 2013. |
|
|
(13) |
|
Cinergy Ventures II, LLC acquired 3,002,293 shares on June 29, 2006, consisting
of 1,902,293 shares acquired pursuant to the Series E Conversion and 1,100,000 shares
purchased in the PIPE Transaction. Following the filing of the amendment which made
the Reverse Split effective on January 23, 2007, the shares acquired on June 29, 2006
were combined into 200,153 shares of common stock. On or about February 1, 2007, we
issued 2,802,140 catch-up shares to Cinergy Ventures II in consideration of its
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 2,823,847 shares being offered by Cinergy Ventures
II consist of 2,591,060 catch-up shares, 73,333 shares deriving from the shares
acquired in the PIPE Transaction, 126,820 shares deriving from the shares issued
pursuant to the Series E Conversion and 32,634 shares issued on January 24, 2007 and
February 2, 2007 in satisfaction of penalties owed to Cinergy Ventures II due to the
Companys inability to register the shares it purchased in the PIPE Transaction on or
before November 3, 2006. |
|
|
(14) |
|
Includes warrants to purchase 3,125 shares of common stock at $0.90 per share
anytime prior to their expiration on September 7, 2008. |
|
|
(15) |
|
Mr. Donohue acquired 294,000 shares on June 29, 2006 pursuant to the Series E
Conversion. Following the filing of the amendment which made the Reverse Split
effective on January 23, 2007, the shares acquired on June 29, 2006 were combined into
19,600 shares of common stock. On or about February 1, 2007, we issued 274,400
catch-up shares to Mr. Donohue in consideration of his relinquishing any claims
relating to the timing of the Reverse Split. See Recent Events Reverse Stock
Split. The 286,613 shares being offered by Mr. Donohue consist of 267,013 catch-up
shares and 19,600 shares deriving from the shares issued pursuant to the Series E
Conversion. |
|
(16) |
|
The Gregory H. Ekezian Revocable Trust purchased 400,000 shares in the PIPE
Transaction on June 29, 2006. Following the filing of the amendment which made the
Reverse Split effective on January 23, 2007, the shares acquired on June 29, 2006 were
combined into 26,667 shares of common stock. On or about February 1, 2007, we issued
373,333 catch-up shares to the Ekezian Revocable Trust in consideration of its
relinquishing any claims relating to the timing |
22
|
|
|
|
|
of the Reverse Split. See Recent Events Reverse Stock Split. The 411,866
shares being offered by the Ekezian Revocable Trust consist of 373,333 catch-up
shares, 26,667 shares deriving from the shares acquired in the PIPE Transaction and
11,866 shares issued on January 24, 2007 and February 2, 2007, in satisfaction of
penalties owed to the Ekezian Revocable Trust due to the Companys inability to
register the shares it purchased in the PIPE Transaction on or before November 3,
2006. |
|
(17) |
|
Ms. Julia Gluck purchased 100,000 shares in the PIPE Transaction on June 29,
2006. Following the filing of the amendment which made the Reverse Split effective on
January 23, 2007, the shares acquired on June 29, 2006 were combined into 6,667 shares
of common stock. On or about February 1, 2007, we issued 93,333 catch-up shares to
Ms. Gluck in consideration of her relinquishing any claims relating to the timing of
the Reverse Split. See Recent Events Reverse Stock Split. The 102,966 shares
being offered by Ms. Gluck consist of 93,333 catch-up shares, 6,667 shares deriving
from the shares acquired in the PIPE Transaction and 2,966 shares issued on January 24,
2007 and February 2, 2006 in satisfaction of penalties owed to Ms. Gluck due to the
Companys inability to register the shares she purchased in the PIPE Transaction on or
before November 3, 2006. |
|
(18) |
|
Includes the following warrants: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise |
|
Expiration |
Quantity |
|
Price |
|
Date |
|
4,630 |
|
|
$ |
15.75 |
|
|
|
4/28/2008 |
|
|
4,375 |
|
|
$ |
0.90 |
|
|
|
9/07/2008 |
|
|
8,975 |
|
|
|
|
|
|
|
|
|
|
|
|
(19) |
|
John Thomas Hurvis Revocable Trust acquired 540,053 shares on June 29, 2006,
consisting of 340,053 shares acquired pursuant to the Series E Conversion and 200,000
shares purchased in the PIPE Transaction. Following the filing of the amendment which
made the Reverse Split effective on January 23, 2007, the shares acquired on June 29,
2006 were combined into 36,004 shares of common stock. On or about February 1, 2007,
we issued 504,049 catch-up shares to Hurvis Revocable Trust in consideration of its
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 505,934 shares being offered by Hurvis Revocable
Trust consist of 463,997 catch-up shares, 13,333 shares deriving from the shares
acquired in the PIPE Transaction, 22,670 shares deriving from the shares issued
pursuant to the Series E Conversion and 5,934 shares issued on January 24, 2007 and
February 2, 2007 in satisfaction of penalties owed to the Hurvis Revocable Trust due to
the Companys inability to register the shares it purchased in the PIPE Transaction on
or before November 3, 2006. |
|
(20) |
|
Ingalls & Snyder, LLC is the nominee holder of shares beneficial owned by Mr.
Robert Gibson, Mr. Thomas Gipson and Mr. Nikolaos Monoyios. The business address for
Ingalls & Synder, LLC is 61 Broadway, New York, NY 10006. |
|
|
|
Mr. Robert Gipson acquired 2,363,600 shares on June 29, 2006, consisting of 450,000
shares purchased in the PIPE Transaction and 1,913,600 acquired pursuant to the
Series E Conversion. Following the filing of the amendment which made the Reverse
Split effective on January 23, 2007, the shares acquired on June 29, 2006 were
combined into 157,573 shares of common stock. On or about February 1, 2007, we
issued 2,206,027 catch-up shares to Mr. Gipson in consideration of his
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 2,256,750 shares being offered by Mr. Gipson
consist of 2,093,840 catch-up shares, 30,000 shares deriving from the shares
acquired in the PIPE Transaction, 119,560 shares deriving from the shares issued
pursuant to the Series E Conversion, and 13,350 shares issued on January 24, 2007 and
February 2, 2007 in satisfaction of penalties owed to Mr. Gipson due to the Companys
inability to register the shares he purchased in the PIPE Transaction on or before
November 3, 2006. |
23
|
|
|
|
|
Mr. Thomas Gipson purchased 1,500,000 shares in the PIPE Transaction on June 29,
2006. Following the filing of the amendment which made the Reverse Split effective
on January 23, 2007, the shares acquired on June 29, 2006 were combined into 100,000
shares of common stock. On or about February 1, 2007, we issued 1,400,000 catch-up
shares to Mr. Gipson in consideration of his relinquishing any claims relating to the
timing of the Reverse Split. See Recent Events Reverse Stock Split. The
1,544,500 shares being offered by Mr. Gipson consist of 1,400,000 catch-up shares,
100,000 shares deriving from the shares acquired in the PIPE Transaction and 44,500
shares issued on January 24, 2007 and February 2, 2007 in satisfaction of penalties
owed to Mr. Gipson due to the Companys inability to register the shares he purchased
in the PIPE Transaction on or before November 3, 2006. |
|
|
|
Mr. Monoyios acquired 2,363,600 shares on June 29, 2006, consisting of 1,913,600
shares acquired pursuant to the Series E Conversion and 450,000 shares purchased in
the PIPE Transaction. Following the filing of the amendment which made the Reverse
Split effective on January 23, 2007, the shares acquired on June 29, 2006 were
combined into 157,573 shares of common stock. On or about February 1, 2007, we
issued 2,206,027 catch-up shares to Mr. Monoyios in consideration of his
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 2,256,750 shares being offered by Mr. Monoyios
consist of 2,085,840 catch-up shares, 30,000 shares deriving from the shares
acquired in the PIPE Transaction, 127,560 shares deriving from the shares issued
pursuant to the Series E Conversion and 13,350 shares issued on January 24, 2007 and
February 2, 2007 in satisfaction of penalties owed to Mr. Monoyios due to the
Companys inability to register the shares he purchased in the PIPE Transaction on or
before November 3, 2006. |
|
(21) |
|
Ms. Rebecca Kiphart purchased 200,000 shares in the PIPE Transaction on June
29, 2006. Following the filing of the amendment which made the Reverse Split effective
on January 23, 2007, the shares acquired on June 29, 2006 were combined into 13,333
shares of common stock. On or about February 1, 2007, we issued 186,667 catch-up
shares to Ms. Kiphart in consideration of her relinquishing any claims relating to the
timing of the Reverse Split. See Recent Events Reverse Stock Split. The 205,934
shares being offered by Ms. Kiphart consist of 186,667 catch-up shares, 13,333 shares
deriving from the shares acquired in the PIPE Transaction and 5,934 shares issued on
January 24, 2007 and February 2, 2007 in satisfaction of penalties owed to Ms. Kiphart
due to the Companys inability to register the shares she purchased in the PIPE
Transaction on or before November 3, 2006. |
|
(22) |
|
Richard Kiphart has been a director and the Chairman of our Board of Directors
since January 2006. |
|
|
(23) |
|
Includes 14,848,970 shares of common stock and the following options and
warrants exercisable within 60 days: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise |
|
Expiration |
Instrument |
|
Quantity |
|
Price |
|
Date |
Warrant |
|
|
8,398 |
|
|
$ |
1.00 |
|
|
|
4/23/2008 |
|
Warrant |
|
|
43,125 |
|
|
$ |
1.00 |
|
|
|
9/7/2008 |
|
Option |
|
|
3,334 |
|
|
$ |
15.00 |
|
|
|
1/24/2016 |
|
Option |
|
|
100,000 |
|
|
$ |
1.02 |
|
|
|
7/11/2016 |
|
Option |
|
|
25,000 |
|
|
$ |
0.90 |
|
|
|
1/2/2017 |
|
Warrant |
|
|
894,231 |
|
|
$ |
1.04 |
|
|
|
5/29/2011 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,074,088 |
|
|
|
|
|
|
|
|
|
|
|
|
(24) |
|
Mr. Kiphart acquired 14,603,400 shares on June 29, 2006, consisting of 8,903,400
shares acquired pursuant to the Series E Conversion and 5,700,000 shares purchased in
the PIPE Transaction. Following the filing of the amendment which made the Reverse
Split effective on January 23, 2007, the shares acquired on June 29, 2006 were combined
into 973,560 shares of common stock. On or about February 1, 2007, we issued
13,629,840 catch-up shares to Mr. Kiphart in consideration of his relinquishing any
claims relating to the timing of the Reverse |
24
|
|
|
|
|
Split. See Recent Events Reverse
Stock Split. The 14,213,260 shares being offered by Mr.
Kiphart consist of 13,070,600 catch-up shares, 380,000 shares deriving from the
shares acquired in the PIPE Transaction, 593,560 shares deriving from the shares
issued pursuant to the Series E Conversion and 169,100 shares issued on January 24,
2007 and February 2, 2006 in satisfaction of penalties owed to Mr. Kiphart due to the
Companys inability to register the shares he purchased in the PIPE Transaction on or
before November 3, 2006. |
|
(25) |
|
Laurus Master Fund, Ltd. exercises dispositive and voting control with respect
to the securities to be offered for resale. Laurus Capital Management, LLC controls
Laurus Master Fund, Ltd. Eugene Grin and David Grin are the sole members of Laurus
Capital Management, LLC. From September 2003 through June 2006, Laurus was a lender to
the Company. On June 29, 2006, all obligations owing to Laurus were repaid in full and
the only continuing relationship between the Company and Laurus is that of an issuer
and a holder of its common stock and warrants. |
|
(26) |
|
Includes the following warrants: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise |
|
Expiration |
Quantity |
|
Price |
|
Date |
|
26,667 |
|
|
$ |
15.00 |
|
|
|
4/26/2010 |
|
|
133,333 |
|
|
$ |
17.40 |
|
|
|
11/22/2012 |
|
|
2,667 |
|
|
$ |
36.60 |
|
|
|
9/11/2008 |
|
|
5,333 |
|
|
$ |
38.10 |
|
|
|
9/11/2008 |
|
|
3,333 |
|
|
$ |
39.75 |
|
|
|
9/11/2008 |
|
|
6,667 |
|
|
$ |
44.55 |
|
|
|
9/11/2008 |
|
|
3,333 |
|
|
$ |
46.05 |
|
|
|
9/11/2008 |
|
|
6,667 |
|
|
$ |
47.70 |
|
|
|
9/11/2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
188,000 |
|
|
|
|
|
|
|
|
|
|
|
|
(27) |
|
Laurus Master Fund, Ltd. acquired 1,343,461 shares on June 29, 2006 in
satisfaction of obligations of the Company to Laurus. (See Recent Events The PIPE
Transaction, Series E Preferred Conversion and Laurus Repayment.) Following the
filing of the amendment which made the Reverse Split effective on January 23, 2007, the
shares acquired on June 29, 2006 were combined into 89,564 shares of common stock. On
or about February 1, 2007, we issued 1,253,897 catch-up shares to Laurus in
consideration of its relinquishing any claims relating to the timing of the Reverse
Split. See Recent Events Reverse Stock Split. The 1,404,477 shares being offered
by Laurus consist of 1,253,897 catch-up shares, 89,564 shares deriving from the
shares acquired on June 29, 2006, and 188,000 shares which would be acquired by
exercising warrants issued by the Company to Laurus as described in Note (26) above. |
|
|
(28) |
|
John J. Jiganti is the Manager of Leaf Mountain Company and has the sole
decision-making power with respect to Leaf Mountain Companys investment in Lime
Energy. The business address for Leaf Mountain is 190 South LaSalle Street, Suite
1700, Chicago, IL 60603. |
|
|
(29) |
|
Leaf Mountain Company acquired 3,315,900 shares on June 29, 2006, consisting of
2,015,900 shares acquired pursuant to the Series E Conversion and 1,300,000 shares
purchased in the PIPE Transaction. Following the filing of the amendment which made
the Reverse Split effective on January 23, 2007, the shares acquired on June 29, 2006
were combined into 221,060 shares of common stock. On or about February 1, 2007, we
issued 3,094,840 catch-up shares to Leaf Mountain in consideration of its
relinquishing any claims relating to the timing of the Reverse Split. See Recent
Events Reverse Stock Split. The 3,275,300 shares being offered by Leaf Mountain
consist of 3,015,674 catch-up shares, 86,667 shares deriving from the shares acquired
in the PIPE Transaction, 134,393 shares deriving from the shares issued pursuant to the
Series E Conversion and 38,566 shares issued on January 24, 2007 and February 2, 2007
in satisfaction of penalties owed to Leaf Mountain due to the Companys inability to
register the shares it purchased in the PIPE Transaction on or before November 3, 2006. |
25
|
|
|
(30) |
|
Mr. Mellish purchased 250,000 shares in the PIPE Transaction on June 29, 2006.
Following the filing of the amendment which made the Reverse Split effective on January
23, 2007, the shares acquired on June 29, 2006 were combined into 16,667 shares of
common stock. On or
about February 1, 2007, we issued 233,333 catch-up shares to Mr. Mellish in
consideration of his relinquishing any claims relating to the timing of the Reverse
Split. See Recent Events Reverse Stock Split. The 257,416 shares being offered
by Mr. Mellish consist of 233,333 catch-up shares, 16,667 shares deriving from the
shares acquired in the PIPE Transaction. and 7,416 shares issued on January 24, 2007
and February 2, 2007 in satisfaction of penalties owed to Mr. Mellish due to the
Companys inability to register the shares he purchased in the PIPE Transaction on or
before November 3, 2006. |
|
(31) |
|
Nettlestone Enterprises Ltd. is beneficially owned by Mr. Khalid Ali Alturki.
The business address for Nettlestone is c/o Aspen Advisory Services Ltd., 44 Lowndes
Street, London SW1X 9HX. |
|
(32) |
|
Nettlestone Enterprises Ltd. purchased 1,500,000 shares in the PIPE Transaction
on June 29, 2006. Following the filing of the amendment which made the Reverse Split
effective on January 23, 2007, the shares acquired on June 29, 2006 were combined into
100,000 shares of common stock. On or about February 1, 2007, we issued 1,400,000
catch-up shares to Nettlestone Enterprises in consideration of its relinquishing any
claims relating to the timing of the Reverse Split. See Recent Events Reverse
Stock Split. The 1,544,500 shares being offered by Nettlestone Enterprises consist of
1,400,000 catch-up shares, 100,000 shares deriving from the shares acquired in the
PIPE Transaction and 44,500 shares issued on January 24, 2007 and February 2, 2007 in
satisfaction of penalties owed to Nettlestone due to the Companys inability to
register the shares it purchased in the PIPE Transaction on or before November 3, 2006. |
|
(33) |
|
Security Management Company, LLC (SMC), an investment advisor registered
under Section 203 of the Investment Advisers Act of 1940, is the investment advisor to;
(a) Security Mid Cap Growth Fund, (b) Security Equity Fund, Mid Cap Value Series, (c)
SBL Fund, Series J and (d) SBL Fund, Series V (collectively, the Funds). The
securities listed in the above table are owned by the Funds, as investment companies
registered under the Investment Company Act of 1940, as amended. Pursuant to investment
management agreements entered into between SMC and each of the Funds, SMC holds
investment discretion to purchase and sell the shares on behalf of the Funds. SMC
generally appoints individual portfolio managers to make investment decisions on its
behalf, although in certain instances a portfolio manager may delegate authority to
another SMC employee to execute isolated transactions. Additionally, SMC holds the
power to vote the securities and exercises this power through formal proxy voting
procedures (the Procedures) it has adopted. With respect to matters to be voted on
that are not addressed in the Procedures or where the Procedures indicate that voting
decisions are to be made on a case-by-case basis, the Procedures state that the
portfolio manager on the account shall direct the vote, provided that SMCs chief
compliance officer has determined that SMC has no conflict of interest in the matter.
James P. Schier is currently the portfolio manager with respect to the Funds. SMC has
the sole discretion to change portfolio managers at any time. The shares of Lime
Energy stock held by these selling shareholders were obtained through a private
placement of our common stock and warrants to purchase shares of our common stock on
March 19, 2004. The business address for Security Management Company, LLC is One
Security Benefit Place, Topeka, KS 66636-0001. |
|
(34) |
|
Includes warrants to purchase 29,517 shares of common stock at $1.00 per shares
anytime prior to their expiration on March 19, 2009. |
26
|
|
|
(35) |
|
Of the 130,717 shares being offered by Security Equity Fund, Mid Cap Value Series,
29,517 are shares which would be acquired pursuant to exercise of the warrants
described in Note (34), 84,333 are shares purchased from the Company on March 19,
2004 and 16,867 were purchased in a private transaction on March 19, 2004 from a
former holder of the Companys Series A Convertible Preferred Stock. |
|
(36) |
|
Includes warrants to purchase 23,333 shares of common stock at $1.00 per shares
anytime prior to their expiration on March 19, 2009. |
|
(37) |
|
Of the 103,333 shares being offered by SBL Fund Series V, 23,333 are shares
which would be acquired pursuant to exercise of the warrants described in Note (36),
66,667 are shares purchased from the Company on March 19, 2004 and 13,333 were
purchased in a private transaction on March 19, 2004 from a former holder of the
Companys Series A Convertible Preferred Stock. |
|
(38) |
|
Includes warrants to purchase 20,767 shares of common stock at $1.00 per shares
anytime prior to their expiration on March 19, 2009. |
|
(39) |
|
Of the 91,967 shares being offered by Security Mid Cap Growth Fund, 20,767 are
shares which would be acquired pursuant to exercise of the warrants described in Note
(38), 59,333 are shares purchased from the Company on March 19, 2004 and 11,867 were
purchased in a private transaction on March 19, 2004 from a former holder of the
Companys Series A Convertible Preferred Stock. |
|
(40) |
|
Includes warrants to purchase 43,050 shares of common stock at $1.00 per shares
anytime prior to their expiration on March 19, 2009. |
|
(41) |
|
Of the 190,650 shares being offered by SBL Fund Series J, 43,050 are shares
which would be acquired pursuant to exercise of the warrants described in Note (40),
123,000 are shares purchased from the Company on March 19, 2004 and 24,600 were
purchased in a private transaction on March 19, 2004 from a former holder of the
Companys Series A Convertible Preferred Stock. |
|
(42) |
|
SF Capital Partners Ltd. is a British Virgin Island company. Staro Asset
Management, L.L.C., a Wisconsin limited liability company, acts as investment manager
and has sole power to direct the management of SF Capital Partners. Through Staro Asset
Management, Messrs. Michael A. Roth and Brian J. Stark possess sole voting and
dispositive power over all shares owned by SF Capital Partners, but disclaim beneficial
ownership of such shares. The mailing address for SF Capital Partners is c/o Stark
Offshore Management, LLC, 3600 South Lake Drive, St. Francis, WI 53235. |
|
|
|
|
Excludes warrants to purchase 40,000 shares of common stock which contain provisions
known as exercise caps which prohibit the holder of the warrants (and its
affiliates) from exercising such warrants to the extent that giving effect to such
exercise, such holder would beneficially own in excess of 4.999% and 9.999% of the
Companys outstanding common stock, as the case may be. The holder can waive the
4.999% limit, but such waiver will not become effective until the 61st day after such
notice is delivered to the Company, and these limits will not restrict the number of
shares of common stock which a holder may receive or beneficially own in order to
determine the amount of securities or other consideration that such holder may
receive in the event of a merger or other business combination or reclassification
involving the Company. The table set forth above reflects the operation of such
exercise caps in that we have not included 40,000 shares of common stock issuable
pursuant to such warrants as SF Capital Partners has advised us that it does not
beneficially own such shares due to the fact that it cannot exercise its right to
purchase these shares at this time. In the absence of such caps, SF Capital would be
able to purchase all the shares issuable upon exercise of these warrants and would
have a beneficial ownership percentage of 8.083%. These warrants expire on September
7, 2008 and have an exercise price of $0.90. |
|
27
|
|
|
(43) |
|
SF Capital Partners acquired 4,237,600 shares on June 29, 2006, consisting of
2,237,600 shares acquired pursuant to the Series E Conversion and 2,000,000 shares
purchased in the PIPE Transaction. Following the filing of the amendment which made
the Reverse Split effective on January 23, 2007, the shares acquired on June 29, 2006
were combined into 282,507 shares of common stock. On or about February 1, 2007, we
issued 3,955,093 catch-up shares to SF Capital in consideration of its relinquishing
any claims relating to the timing of the Reverse Split. See Recent Events Reverse
Stock Split. The 4,168,252 shares being offered by SF Capital consist of 3,825,872
catch-up shares, 133,333 shares deriving from the shares acquired in the PIPE
Transaction, 149,713 shares deriving from the shares issued pursuant to the Series E
Conversion and 59,344 shares issued on January 24, 2007 and February 2, 2007 in
satisfaction of penalties owed to SF Capital due to the Companys inability to register
the shares he purchased in the PIPE Transaction on or before November 3, 2006. |
|
(44) |
|
David Valentine has been one of our Directors since May 2004. |
|
(45) |
|
Includes the following options issued pursuant to the Directors Option Plan
which are exercisable within the next 60 days: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise |
|
Expiration |
Quantity |
|
Price |
|
Date |
|
1,667 |
|
|
$ |
15.00 |
|
|
|
5/26/2015 |
|
|
1,112 |
|
|
$ |
15.00 |
|
|
|
5/26/2016 |
|
|
4,999 |
|
|
$ |
26.10 |
|
|
|
5/26/2014 |
|
|
100,000 |
|
|
$ |
1.02 |
|
|
|
7/11/2016 |
|
|
25,000 |
|
|
$ |
0.90 |
|
|
|
1/2/2017 |
|
|
|
|
|
|
|
|
|
|
|
|
|
132,778 |
|
|
|
|
|
|
|
|
|
|
|
|
(47) |
|
Mr. Valentine acquired 345,700 shares on June 29, 2006, consisting of 145,700
shares acquired pursuant to the Series E Conversion and 200,000 shares purchased in the
PIPE Transaction. Following the filing of the amendment which made the Reverse Split
effective on January 23, 2007, the shares acquired on June 29, 2006 were combined into
23,047 shares of common stock. On or about February 1, 2007, we issued 322,653
catch-up shares to Mr. Valentine in consideration of his relinquishing any claims
relating to the timing of the Reverse Split. See Recent Events Reverse Stock
Split. The 342,481 shares being offered by Mr. Valentine consist of 313,501
catch-up shares, 13,333 shares deriving from the shares acquired in the PIPE
Transaction, 9,713 shares deriving from the shares issued pursuant to the Series E
Conversion and 5,934 shares issued on January 24, 2007 and February 2, 2007 in
satisfaction of penalties owed to Mr. Valentine due to the Companys inability to
register the shares he purchased in the PIPE Transaction on or before November 3, 2006. |
|
(48) |
|
The selling stockholder is an affiliate of a broker-dealer, acquired the common
stock in the ordinary course of business and, at the time of acquisition, did not have
any arrangements or understandings, directly or indirectly, with any person to
distribute the common stock. |
28
DESCRIPTION OF SECURITIES
In the following summary, we describe the material terms of our capital stock by summarizing
material provisions of our charter and by-laws. We have incorporated by reference these
organizational documents as exhibits to the registration statement of which this prospectus is a
part.
General
As of September 13, 2007, we had 200,000,000 authorized shares of common stock and 5,000,000
shares of authorized preferred stock, of which:
|
|
|
|
53,767,612 shares are issued and outstanding; |
|
|
|
|
|
|
5,000,000 shares of common stock are issuable upon conversion of
outstanding subordinated convertible notes; |
|
|
|
|
|
|
2,950,361 shares of common stock are issuable upon exercise of outstanding
common stock warrants; |
|
|
|
|
|
|
11,353,133 shares of common stock are issuable upon exercise of outstanding
stock options; and |
|
|
|
|
|
No shares of preferred stock or other rights or options, warrants to
acquire preferred stock are outstanding. |
Common Stock
Holders of our common stock are entitled to one vote per share on all matters submitted to a
vote of our stockholders and will share ratably on a per share basis in any dividends declared on
our common stock. Holders of our common stock have no preemptive, subscription, redemption or
conversion rights. Upon our liquidation, dissolution or winding up and after payment of all prior
claims, the holders of shares of common stock would share ratably on a per share basis in all of
our assets. All shares of common stock currently outstanding are fully paid and nonassessable. Any
shares of common stock which the selling stockholders acquire through exercise of their warrants
will also be fully paid and nonassessable.
Preferred Stock
Our board of directors, without further stockholder approval, may authorize the issuance of
preferred stock in one or more series from time to time and fix or alter the designations, relative
rights, priorities, preferences, qualifications, limitations and restrictions of the shares of each
series. The rights, preferences, limitations and restrictions of different series of preferred
stock may differ with respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions and other matters. Our board of
directors (1) may authorize the issuance of preferred stock that ranks senior to our common stock
for the payment of dividends and the distribution of assets on liquidation, (2) can fix limitations
and restrictions upon the payment of dividends on our common stock to be effective while any shares
of preferred stock are outstanding, and (3) can also issue preferred stock with voting and
conversion rights that could adversely affect the voting power of the holders of common stock.
29
Warrants
Included in the shares of common stock being registered pursuant to this prospectus are
364,667 shares issuable upon the exercise of warrants. These warrants include:
|
|
|
A three year warrant held by Bristol Capital, Ltd. to purchase 60,000 shares of
common stock at $1.00 per share on, or anytime before, July 25, 2009; |
|
|
|
|
A five year warrant held by Laurus Master Fund, Ltd. to purchase 26,667 shares of
common stock at $15.00 per share on, or anytime before, April 26, 2010; |
|
|
|
|
The following five year warrants held by Laurus Master Fund, Ltd. which all
expire on November 8, 2008 and contain cashless exercise options, which permits the
holder to surrender a portion of the shares issuable upon exercise of the warrant as
payment of the exercise price (valuing the surrendered shares at the then current
market price): |
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|
|
|
|
|
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|
Exercise |
Quantity |
|
|
|
Price |
|
2,667 |
|
|
|
|
$ |
36.60 |
|
|
5,333 |
|
|
|
|
$ |
38.10 |
|
|
3,333 |
|
|
|
|
$ |
39.75 |
|
|
6,667 |
|
|
|
|
$ |
44.55 |
|
|
3,333 |
|
|
|
|
$ |
46.05 |
|
|
6,667 |
|
|
|
|
$ |
47.70 |
|
|
|
|
|
|
|
|
|
|
|
28,000 |
|
|
|
|
|
|
|
|
|
|
A seven year warrant held by Laurus Master Fund, Ltd. to purchase 133,333
shares of common stock at $17.40 per share on, or anytime before, November 22, 2012.
This warrant contains a cashless exercise option, which permits the holder to
surrender a portion of the shares issuable upon exercise of the warrant as payment
of the exercise price (valuing the surrendered shares at the then current market
price); and |
|
|
|
|
Five year warrants held by Security Equity Fund, Mid Cap Value Series, SBL Fund
Series V, Security Mid Cap Growth Fund and SBL Fund Series J to purchase 116,667
shares of common stock at $1.00 per share on, or anytime before, March 19, 2009.
These warrants contain anti-dilution provisions which automatically adjust the
exercise price of the warrant if: |
|
A) |
|
we issue shares of our common stock at a price that is
less than the exercise price of the warrants and less than the
market price of our common stock at that time, or |
|
|
B) |
|
we issue securities convertible into shares of common
stock and the purchase price for such securities plus the consideration (if
any) to be paid upon conversion of such securities into common stock, when
divided by the number of common stock shares issuable upon such conversion
yields a price per share (the Per Share Consideration) less than the
market price of our common stock on the date of issuance of such convertible
securities, and the Per Share Consideration is less than the
exercise price of the warrant. |
|
|
|
In the event the security issuance meets the conditions of A or B, then the exercise
price of the warrants will be reduced to the issuance price (in the case of A) or an
amount equal to the Per Share Consideration of such convertible securities (in the
case of B). |
The exercise price and number of shares issuable upon exercise of all of these warrants will
automatically be adjusted to reflect any stock split, reverse split, stock dividend or similar
event affecting our common stock.
30
Delaware Anti-Takeover Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. In
general, this section prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years after the date of the
transaction in which the person becomes an interested stockholder, unless:
|
|
|
before the date on which the stockholder became an interested stockholder,
the corporations board of directors approved either the business combination or the
transaction in which the person became an interested stockholder; |
|
|
|
|
the stockholder acquires more than 85% of the outstanding voting stock of
the corporation, excluding shares held by directors who are officers or held in certain
employee stock plans, upon consummation of the transaction in which the stockholder
becomes an interested stockholder; or |
|
|
|
|
the business combination is approved by the board of directors and by
two-thirds of the outstanding voting stock of the corporation that is not held by the
interested stockholder, at a meeting of the stockholders held on or after the date of
the business combination. |
An interested stockholder is a person who, together with affiliates and associates, owns, or
at any time within the prior three years did own, 15% or more of the corporations voting stock.
Business combinations include, without limitation, mergers, consolidations, stock sales, asset
sales or other transactions resulting in a financial benefit to interested stockholders.
Anti-Takeover Effects of Certain Charter and By-Law Provisions
Our charter and by-laws contain provisions relating to corporate governance and to the rights
of stockholders. Our by-laws provide that special meetings of stockholders may only be called by
our Board of Directors, our Chairman of the Board or our President and shall be called by our
Chairman, President or Secretary at the request in writing of stockholders owning at least
one-fifth of the outstanding shares of capital stock entitled to vote. In addition, our charter
provides that our Board of Directors may authorize the issuance of preferred stock without further
stockholder approval and upon those terms and conditions, and having those rights, privileges and
preferences, as our Board of Directors may determine.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is LaSalle Bank N.A.
LEGAL MATTERS
Certain legal matters in connection with the shares of common stock offered hereby have been
passed upon for Lime Energy by Schwartz Cooper Chartered of Chicago, Illinois.
31
EXPERTS
The financial statements and schedule of Lime Energy Co. (formerly known as Electric City
Corp.) and the financial statements of Parke P.A.N.D.A. Corporation included in this Prospectus and
in the Registration Statement have been audited by BDO Seidman, LLP, an independent registered
public accounting firm, to the extent and for the periods set forth in their reports included
herein and in the Registration Statement, and are included in reliance upon such reports given upon
the authority of said firm as experts in auditing and accounting.
COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITY
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers and controlling persons pursuant to our charter, bylaws or otherwise, we
have been advised that in the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim of
indemnification against such liabilities (other than the payment by us of expenses incurred or paid
by one of our directors, officers or controlling persons in the successful defense of any action,
suit or proceeding) is asserted by one of our directors, officers or controlling persons in
connection with the securities being registered, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by us is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
DESCRIPTION OF BUSINESS
Overview/History
We are a developer, manufacturer and integrator of energy saving technologies and provide
energy engineering services. Our energy saving products include the eMAC system, which provides
intelligent control and continuous monitoring of HVAC and lighting equipment via wireless
communication technology to reduce energy usage and improve system reliability. The eMAC technology
has been installed in applications in commercial buildings, factories and office structures.
From June 2001 through March 2006 we also provided, through our subsidiary, Great Lakes
Controlled Energy Corporation, a Delaware Corporation (Great Lakes), integrated building and
environmental control solutions for commercial and industrial facilities.
Until June 1, 2003, we also manufactured custom electrical switchgear through our subsidiary
Switchboard Apparatus Inc. (Switchboard).
Until recently we also marketed the EnergySaver, a product that reduces energy usage in
ballasted lighting fixtures with minimal lighting level reduction. In conjunction with the
EnergySaver we also marketed the GlobalCommander, a system that allows us to link multiple
EnergySaver units together and to provide remote communications, measurement and verification of
energy savings. The EnergySaver achieves energy savings by taking advantage of certain
characteristics of passive ballasts used with fluorescent and high intensity discharge (HID)
fixtures, which up until recently were the predominate ballasts used for these types of fixtures.
We recently decided to discontinue the active marketing of the EnergySaver because lighting
manufacturers have recently begun to discontinue the sale of certain passive ballasts and we
believe will discontinue the sale of all passive ballasts in the near future. While there is still
a large base of installed passive ballasts in the United States, we believe that most of these
passive ballasts will be replaced over the next 5 to 7 years with active or electronic ballasts,
which are not compatible with the EnergySaver. Our management decided that rather than continuing
to sell a technology to customers that would have a limited useful life, going
32
forward we would concentrate our sales and marketing efforts on other forms of energy
technology and services.
On December 5, 1997, we were initially formed as Electric City LLC, a Delaware limited
liability company. On June 5, 1998, we changed from a limited liability company into a corporation
by merging Electric City LLC into Electric City Corp., a Delaware corporation.
On June 10, 1998, Electric City issued shares of our common stock with a fair market value of
$1,200,272, representing approximately six (6%) percent of Electric Citys then issued and
outstanding common stock, to the approximately 330 shareholders of Pice Products Corporation
(Pice), an inactive, unaffiliated company with minimal assets, pursuant to a merger agreement
under which Pice was merged with and into Electric City. The purpose of the merger was to
substantially increase the number of our shareholders to facilitate the establishment of a public
trading market for our common stock. Trading in our common stock commenced on August 14, 1998
through the OTC Bulletin Board under the trading symbol ECCC.
In May 1999, we purchased most of the assets of Marino Electric, Inc., an entity engaged in
the business of designing and manufacturing custom electrical switchgear and distribution panels.
On August 31, 2000 we acquired Switchboard Apparatus.
On June 7, 2001 we acquired Great Lakes.
On June 3, 2003, we entered into an asset purchase agreement with Hoppensteadt Acquisition
Corp., whereby Hoppensteadt acquired all of the assets, except for certain receivables and cash,
and assumed all of the liabilities, except for bank debt, of Switchboard Apparatus, as of May 31,
2003.
On May 3, 2005, we acquired Maximum Performance Group, Inc. (MPG). MPG is a technology
based provider of energy and asset management products and services. MPG manufactures and markets
its eMAC line of controllers for HVAC and lighting applications. The eMAC line of controllers
provide intelligent control and continuous monitoring of HVAC and lighting equipment via wireless
communication technology to reduce energy usage and improve system reliability. MPG has offices in
New York City and San Diego, California.
On April 3, 2006, we sold all of the capital stock of Great Lakes Controlled Energy
Corporation to its former owners, effective as of March 31, 2006.
On June 29, 2006, we acquired Parke P.A.N.D.A. Corporation (Parke). Parke (now named Parke
Industries, LLC) is an energy services provider specializing in the design, engineering and
installation of energy efficient lighting upgrades for commercial and industrial users. Parke has
30 employees and is headquartered in Glendora, California, with offices in Danville and Carmel,
California.
On September 13, 2006, we changed our name to Lime Energy Co. after merging with a wholly
owned subsidiary which was set up solely for the purpose of effecting a name change. On September
22, 2006, our stock began trading on the OTC Bulletin Board under the trading symbol LMEC.
On September 26, 2006, we acquired Kapadia Consulting, Inc. (now named Kapadia Energy
Services, Inc.), effective September 27, 2006. Kapadia is an engineering firm that specializes in
energy management consulting and energy efficient lighting upgrades for commercial and industrial
users. Kapadia has seven employees, is headquartered in Peekskill, New York, and has an office in
Ventura, California.
Effective May 31, 2007, we acquired the assets and assumed certain liabilities of George
Bradley Boyett dba Texas Energy Products (Texas Energy), and effective as of July 31, 2007, we
acquired the assets and assumed certain liabilities of Preferred Lighting, Inc. (Preferred
Lighting). Both Texas Energy and Preferred Lighting are energy service providers, specializing in
providing their customers energy efficient lighting retrofit services. Texas Energy is
headquartered in Austin, Texas and had four employees on the date
33
of acquisition, and Preferred Lighting is headquartered in Seattle, Washington and also had
four employees on the date of acquisition.
Products and Services
The Company currently markets products or provides services under two distinct business
segments. The energy technology segment includes the development and sale of the eMAC and uMAC
product lines. Commencing June 30, 2006, we formed an energy services business segment, which is
served by our subsidiaries, Parke Industries, LLC, Kapadia Energy Services, Inc., Texas Energy
Products, Inc. and Preferred Lighting, Inc. Parke, Texas Energy and Preferred Lighting specialize
in the design, engineering and installation of energy efficient lighting upgrades for commercial
and industrial users and Kapadia is an engineering consulting firm that specializes in energy
efficiency and energy management. See Note 28 to the consolidated financial statements for
additional information regarding the segments of our business.
eMAC & uMAC
The eMAC system is comprised of a heating, ventilating and air conditioning (HVAC)
controller with wireless communication capabilities and a central, server based, Internet
accessible software that monitors and controls the operation of the connected HVAC units. The eMAC
system is designed for use in commercial and industrial applications with packaged (primarily
rooftop) HVAC equipment of 2 to 40 tons (1 ton = 12,000 Btu/hr cooling capacity) and up to 500,000
Btu/hr of heating capacity.
The eMAC controller is contained in a small box that is mounted on the exterior of a
customers HVAC unit. The controller is wired into the HVAC equipment and monitors up to 126
points of the equipments operation. In addition, each eMAC contains a Pentech Energy Recovery
Controller (PERC), a patented third generation microprocessor-based technology.
PERC was developed by Pentech Solutions, a predecessor company to MPG, and is designed to
dynamically match an HVAC systems output to any given load condition, thereby improving the
operating efficiency of the equipment. Since most HVAC systems are designed to maintain
comfortable environmental conditions on both the hottest and coldest days likely to be experienced,
there exists substantial excess system capacity on most days of the year. Due to this excess
capacity, the system quickly satisfies a thermostats call for heating or cooling, and in doing so
overshoots the thermostat set point and leaves Btus of heat or cooling in the heat exchanger,
cooling coils and air ducts. The PERC controller acts to correct this by periodically turning off
the air conditioners compressor and condenser fan while continuing to run the evaporator fan,
thereby continuing to deliver cooling to the conditioned space utilizing the energy stored in the
cooling coils, heat exchanger and air ducts. In heating applications, PERC periodically closes the
gas valve while continuing to operate the indoor air fan, delivering heated air into the space
utilizing the heat stored in the heat exchanger and air ducts. At the same time, the PERC
controller is monitoring the rate of temperature change in the conditioned space in order to avoid
overshooting the desired temperature setting. The PERC technology typically will result in energy
savings of 15% to 20% for our end user customers.
The wireless communication capabilities of the eMAC allow us to monitor and remotely manage
the operation of a customers HVAC equipment. A customer can log on to our eMAC web site and
obtain information regarding the operation of its HVAC equipment and change equipment operating
parameters, such as hours of operation and temperature. The eMAC will also send alarms to our
central server when any of the up to 126 monitored points of operation fall outside predetermined
operating ranges. This often permits us to react to a potential equipment problem before the
occupants of the space are aware of an equipment malfunction. We charge our customers for this
ability to communicate and remotely monitor and mange their equipment, though we often include an
initial monitoring period with the purchase of the eMAC so that our customers can become familiar
with the benefits of this service.
The uMAC is a version of the eMAC which has been simplified to remotely control the operation
of a facilitys lights via wireless communications. Using the uMAC a customer can remotely, via
the Internet, turn lights on and off and change the daily schedule for the operation of a
facilitys lighting.
34
Energy Services
Through our wholly owned subsidiaries, Parke Industries, LLC, Texas Energy Products, Inc. and
Preferred Lighting, Inc., we market, design, engineer and install energy efficient lighting
upgrades for commercial and industrial users. Through these companies we seek to determine the
best lighting solutions for our customers, taking into consideration factors such as lighting
requirements, building environmental conditions, energy costs, available utility and/or tax
incentives, and installation, operating and maintenance costs of various lighting alternatives, to
select what we believe is the best solution for our customer. We will then remove the existing
lighting system and replace it with the new lighting system using our own installation crews or
subcontracted installers. In most situations, our customers will realize paybacks of 12 to 24
months on their lighting system upgrade and very often also improve the overall quality of lighting
in their facilities.
Our other recently acquired subsidiary, Kapadia Energy Services, Inc., provides energy
engineering services to assist customers in improving their energy efficiency and to better manage
their energy costs. Some of the services that Kapadia offers its customers include building energy
audits to determine ways to improve energy efficiency, HVAC and boiler system optimization, energy
management planning, engineering design review with a view to optimizing energy efficiency and
energy rebates, energy project management, and lighting engineering and design. Kapadia will also
provide turnkey lighting upgrades in which it will purchase all of the materials and labor for
energy efficient lighting upgrades, much like our other companies do, except that Kapadia has no
installation crews, thus uses subcontractors to perform the installation of the new lighting
fixtures.
Marketing, Sales and Distribution
The majority of our sales are derived through the efforts of our internal sales force. We
currently have 30 employees whose primary responsibility is sales working out of eleven sales
offices, some of which are home offices. Our sales people have been trained to sell all of our
products and services, regardless of the subsidiary that employs them or the office that they work
out of. Our sales leads are developed from of a combination of cold calls, referrals and repeat
customers.
Customers
During 2006, three customers, Kohls Department Stores, Modells Sporting Goods and Automated
Building Controls accounted for 14%, 13% and 13% of our consolidated billings, respectively.
During 2005, two customers, Kohls Department Stores and Duane Read Inc., accounted for
approximately 37% and 11% of our consolidated billings, respectively and during 2004, sales to five
customers Public Energy Solutions, Electric City of New Jersey, Electric City of Pennsylvania,
Control Ambiento Y Mantenimiento and the New York Power Authority accounted for 39%, 14%, 12%, 11%
and 10% of our consolidated revenue, respectively.
Competition
While there are other HVAC controllers that provide energy saving benefits similar to the
eMAC, we are not aware of any competing product available at a comparable cost to the eMAC that
provides the communications, remote monitoring and diagnostic features of the eMAC. Large,
national control companies provide systems that can do much of what the eMAC can do, but the
installed cost of such systems make them impractical for smaller applications, which is the market
we are targeting with the eMAC.
There are many competitors in the energy services business, including small regional lighting
retrofit companies, electrical contractors and large national energy service companies. The large
national energy service companies tend to market to large national companies and compete for large
energy retrofit projects in which lighting is one piece of the total project. We focus on
providing lighting retrofit services to the market for small to mid-sized commercial and industrial
users (which we believe is under-served) and to niche markets, where installations are more
difficult. In these markets we sell our services based on the financial return to our
35
customers and differentiate ourselves through our experience and reputation for quality work
and superior service.
Energy engineering services such as those provided by Kapadia are also generally widely
available. The certifications held by Kapadias staff of engineers include: Professional Engineer
(PE); Certified Energy Engineer (CEM); and Certified Lighting Efficiency Professional (CLEP).
To obtain these certifications an individual must have a high level of experience and demonstrated
knowledge of engineering and energy engineering concepts. Kapadia differentiates itself from its
competitors through its reputation for quality work and its 26 years of experience as an energy
engineering firm. A significant amount of Kapadias business comes from repeat customers or
referrals.
Manufacturing
The eMAC is manufactured for us by a contract manufacturer in southern California. We believe
that this contract manufacturer has sufficient capacity to handle our anticipated growth in eMAC
sales for the foreseeable future. In addition, we believe that there are many contract
manufacturers across the country that could manufacture the eMAC for us if for some reason our
current contract manufacturer could not meet our needs.
The primary components of the eMAC are sourced from multiple suppliers. We periodically engage
in discussions with additional parts suppliers, seeking to ensure lowest cost pricing and
reliability of supply.
Our lighting products are purchased from third party suppliers and manufacturers. These
products are generally widely available and are selected based on a combination of price,
performance, features and availability.
During 2006 approximately 12% of our consolidated purchases were made from one supplier.
During 2005, approximately 20% of our consolidated material purchases were made from four
suppliers. Purchases from any one supplier will vary year-to-year depending on sales and inventory
levels. None of our largest suppliers sell the Company proprietary products that we could not
purchase from other vendors.
Compliance with Environmental Laws
Neither the Companys production, nor sale of its products, in any material way generate
activities or materials that require compliance with federal, state or local environmental laws.
Our Energy Services businesses use licensed disposal firms to dispose of old lamps, lighting
ballasts or other products that may contain heavy metals or other potential environmental hazards.
Research and Development
The Company, through the day-to-day use of the eMAC and its components and through various
testing sites around the country, develops modifications and improvements to our products. Total
research and development costs charged to operations were approximately $535,000, $395,000 and
$150,000 for the years ended December 31, 2006, 2005 and 2004, respectively.
Intellectual Property
As of December 31, 2006, we had nine issued patents and three patents pending before the U.S.
Patent and Trademark Office, as well as foreign patent offices on various aspects of the
EnergySaver, eMAC and GlobalCommander technologies. In addition we have registered four trademarks
and have one additional trademark registration pending.
36
Employees
As of September 13, 2007, we had 99 full time employees and 2 part time employees, of which 19
were management and corporate staff, 9 were engineers, 30 were engaged in sales and marketing and
43 were engaged in customer support and field service.
SELECTED CONSOLIDATED FINANCIAL DATA
The selected financial data set forth below as of December 31, 2006 and 2005 and for each of
the three years in the period ended December 31, 2006 are derived from our audited financial
statements included with this prospectus. The selected financial data set forth below for the years
ended December 31, 2003 and 2002, and the balance sheet data for the three years ended December 31,
2004 have been derived from our audited financial statements and are not included with this
prospectus. All of the Statement of Operations data has been revised from the original presentation
in the audited financial statements to reflect the Companys Building Control and Automation
segment as a discontinued operation, which was sold effective March 31, 2006. The selected
financial data for the six month periods ended June 30, 2006 and 2007 have been derived from our
unaudited financial statements; however, such information reflects all adjustments (consisting
solely of normal recurring adjustments), which, in the opinion of management, are necessary for a
fair statement of results for the interim periods.
Effective January 1, 2006, we adopted SFAS 123(R). Prior to then we accounted for employee
stock options using the method of accounting prescribed by Accounting Principles Board Opinion No.
25, Accounting for Stock Issued to Employees, and the associated interpretations using the
intrinsic method. Generally, no expense was recognized related to its stock options under this
method because the stock options exercise price were set at the stocks fair market value on the
date the options were granted. Whereas, as a result of adopting SFAS 123(R) $4,828,955 of share
based compensation expense was included in the results for the year ended December 31, 2006.
The historical results presented below are not necessarily indicative of the results to be
expected for any future period. The data set forth below should be read in conjunction with
Managements Discussion and Analysis of Financial Condition and Results of Operations and our
financial statements, including the notes thereto, included elsewhere in this prospectus.
37
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended |
|
|
|
Year ended December 31, |
|
|
June, |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006 |
|
|
2007 |
|
|
|
2002 |
|
|
2003 |
|
|
2004 |
|
|
2005 |
|
|
2006 |
|
|
(unaudited) |
|
|
(unaudited) |
|
Statement of Operations Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
3,627,113 |
|
|
$ |
2,280,532 |
|
|
$ |
733,630 |
|
|
$ |
3,693,429 |
|
|
$ |
8,143,624 |
|
|
$ |
2,481,163 |
|
|
$ |
6,631,240 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales |
|
|
3,273,150 |
|
|
|
1,945,554 |
|
|
|
862,366 |
|
|
|
3,691,854 |
|
|
|
6,931,294 |
|
|
|
1,881,883 |
|
|
|
5,101,204 |
|
Selling, general and administrative |
|
|
5,464,950 |
|
|
|
3,921,121 |
|
|
|
4,234,239 |
|
|
|
5,363,503 |
|
|
|
12,165,700 |
|
|
|
3,660,165 |
|
|
|
5,903,785 |
|
Amortization of intangibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
471,765 |
|
|
|
1,210,006 |
|
|
|
323,007 |
|
|
|
938,829 |
|
Impairment loss |
|
|
108,000 |
|
|
|
|
|
|
|
|
|
|
|
242,830 |
|
|
|
1,183,525 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(5,218,987 |
) |
|
|
(3,586,143 |
) |
|
|
(4,362,975 |
) |
|
|
(6,076,523 |
) |
|
|
(13,346,901 |
) |
|
|
(3,383,892 |
) |
|
|
(5,312,578 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
Other income (expense) |
|
|
(32,920 |
) |
|
|
(354,941 |
) |
|
|
(626,049 |
) |
|
|
(544,253 |
) |
|
|
(3,079,188 |
) |
|
|
(3,211,106 |
) |
|
|
(41,914 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(5,251,907 |
) |
|
|
(3,941,084 |
) |
|
|
(4,989,024 |
) |
|
|
(6,620,776 |
) |
|
|
(16,426,089 |
) |
|
|
(6,594,998 |
) |
|
|
(5,354,492 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from discontinued
operations |
|
|
(1,756,020 |
) |
|
|
(1,540,858 |
) |
|
|
(170,338 |
) |
|
|
(251,962 |
) |
|
|
(21,425 |
) |
|
|
(21,425 |
) |
|
|
|
|
Cumulative effect of accounting
change |
|
|
(4,103,872 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
|
(11,111,799 |
) |
|
|
(5,481,942 |
) |
|
|
(5,159,362 |
) |
|
|
(6,872,738 |
) |
|
|
(16,447,514 |
) |
|
|
(6,616,423 |
) |
|
|
(5,354,492 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock Dividends |
|
|
(4,111,107 |
) |
|
|
(4,817,917 |
) |
|
|
(4,639,259 |
) |
|
|
(1,851,345 |
) |
|
|
(24,347,725 |
) |
|
|
(24,347,725 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss Available to Common
Shareholders |
|
$ |
(15,222,906 |
) |
|
$ |
(10,299,859 |
) |
|
$ |
(9,798,621 |
) |
|
$ |
(8,724,083 |
) |
|
$ |
(40,795,239 |
) |
|
$ |
(30,964,148 |
) |
|
$ |
(5,354,492 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted loss per common
share from continuing operations |
|
$ |
(4.50 |
) |
|
$ |
(3.90 |
) |
|
$ |
(3.62 |
) |
|
$ |
(2.65 |
) |
|
$ |
(1.52 |
) |
|
$ |
(7.94 |
) |
|
$ |
(0.10 |
) |
Basic and diluted loss per common
share |
|
|
(7.32 |
) |
|
|
(4.58 |
) |
|
|
(3.68 |
) |
|
|
(2.73 |
) |
|
|
(1.52 |
) |
|
|
(7.95 |
) |
|
|
(0.10 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
outstanding (1) |
|
|
2,080,878 |
|
|
|
2,250,766 |
|
|
|
2,660,093 |
|
|
|
3,190,664 |
|
|
|
26,908,608 |
|
|
|
3,894,505 |
|
|
|
51,826,534 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
1,555,904 |
|
|
$ |
2,467,023 |
|
|
$ |
1,789,808 |
|
|
$ |
4,229,150 |
|
|
$ |
4,663,618 |
|
|
$ |
9,529,429 |
|
|
$ |
8,340,281 |
|
Working capital (deficiency) |
|
|
3,546,270 |
|
|
|
2,050,157 |
|
|
|
263,304 |
|
|
|
646,483 |
|
|
|
3,606,419 |
|
|
|
7,197,771 |
|
|
|
8,305,904 |
|
Total assets |
|
|
8,908,551 |
|
|
|
7,353,627 |
|
|
|
6,479,320 |
|
|
|
17,098,974 |
|
|
|
25,396,865 |
|
|
|
29,600,303 |
|
|
|
30,660,833 |
|
Long-term debt, including current
portion |
|
|
1,089,791 |
|
|
|
1,348,645 |
|
|
|
1,230,353 |
|
|
|
4,980,032 |
|
|
|
567,091 |
|
|
|
597,095 |
|
|
|
5,574,871 |
|
Total stockholders equity |
|
|
4,284,291 |
|
|
|
3,040,932 |
|
|
|
1,780,271 |
|
|
|
4,377,637 |
|
|
|
18,184,756 |
|
|
|
22,953,588 |
|
|
|
21,136,423 |
|
|
|
|
(1) |
|
Adjusted for 1 for 15 reverse stock split effected January 23, 2007 |
38
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the consolidated financial
statements and related notes which appear elsewhere in the registration statement of which this
prospectus forms a part. The discussion contains forward-looking statements within the meaning
of the Private Securities Litigation Act of 1995. Such statements consist of any statement other
than a recitation of historical fact and can be identified by the use of forward-looking
terminology such as may, expect, anticipate, estimate or continue or the negative of such
terms or other variations of such terms or comparable terminology. You are cautioned that all
forward-looking statements are necessarily speculative and there are certain risks and
uncertainties that could cause actual events or results to differ materially from those referred to
in such forward-looking statements. We do not have a policy of updating or revising forward-looking
statements and, therefore, you should not assume that our silence over time means that actual
events are bearing out as estimated in such forward-looking statements.
We have a limited operating history. All risks inherent in an inexperienced enterprise are
inherent in our business.
Critical Accounting Policies and Estimates
The discussion and analysis of our financial condition and results of operations are based
upon our consolidated financial statements, which have been prepared in accordance with accounting
principles generally accepted in the United States. The preparation of these financial statements
requires us to make estimates and judgments that affect the reported amount of assets and
liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities at
the date of our financial statements. Actual results may differ from these estimates under
different assumptions or conditions. Critical accounting policies are defined as those that are
reflective of significant judgments and uncertainties, and potentially result in materially
different results under different assumptions and conditions. We believe that our critical
accounting policies are limited to those described below. For a detailed discussion on the
application of these and other accounting policies, see Note 4 in the notes to the consolidated
financial statements.
Use of Estimates
Preparation of the consolidated financial statements in accordance with accounting principles
generally accepted in the United States requires management to make estimates and assumptions
affecting the reported amounts of assets, liabilities, revenues and expenses and related contingent
liabilities. On an on-going basis, the Company evaluates its estimates, including those related to
revenues, bad debts, warranty accrual, income taxes and contingencies and litigation. The Company
bases its estimates on historical experience and on various other assumptions that are believed to
be reasonable under the circumstances. Actual results may differ from these estimates under
different assumptions or conditions.
Revenue Recognition
We recognize revenue when all four of the following criteria are met: (i) persuasive evidence
has been received that an arrangement exists; (ii) delivery of the products and/or services has
occurred; (iii) the selling price is fixed or determinable; and (iv) collectibility is reasonably
assured. In addition, we follow the provisions of the Securities and Exchange Commissions Staff
Accounting Bulletin No. 104, Revenue Recognition, which sets forth guidelines in the timing of
revenue recognition based upon factors such as passage of title, installation, payments and
customer acceptance. Any amounts received prior to satisfying our revenue recognition criteria is
recorded as deferred revenue.
39
Our MPG subsidiary often bundles contracts to provide monitoring services and web access with
the sale of its eMAC hardware. As a result, these sales are considered to be contracts with
multiple deliverables which at the time the hardware is delivered and installed includes
undelivered services essential to the functionality of the product. Accordingly, we defer the
revenue for the product and services and the cost of the equipment and installation and recognize
them over the term of the monitoring contract. The monitoring contracts vary in length from 1
month to 5 years.
Profit Recognition on Long-Term Contracts
We account for revenue on most of our long-term contracts on the completed contract method,
whereby revenue is recognized once the project is substantially complete. However, we account for
revenues on some long-term contracts under the percentage of completion method in conjunction with
the cost-to-cost method of measuring the extent of progress toward completion. Any anticipated
losses on contracts are charged to operations as soon as they are determinable.
Allowance for Doubtful Accounts
We maintain an allowance for doubtful accounts for estimated losses resulting from the
inability of our customers to make required payments. The allowance is largely based upon specific
knowledge of customers from whom collection is determined to be doubtful and our historical
collection experience with such customers. If the financial condition of our customers or the
economic environment in which they operate were to deteriorate, resulting in an inability to make
payments, or if our estimates of certain customers ability to pay are incorrect, additional
allowances may be required. During 2006, we increased our allowance by $105,000 and wrote-off
receivables of $62,000. As of December 31, 2006, our allowance for doubtful accounts was
approximately $366,000, or 11.5% of the outstanding accounts receivable, of which approximately
$342,000 was associated with our EnergySaver business.
Impairment of Long-Lived Assets
We record impairment losses on long-lived assets used in operations when events and
circumstances indicate that the assets might be impaired and the undiscounted cash flows estimated
to be generated by those assets are less than the carrying amount of those items. Our cash flow
estimates are based on historical results adjusted to reflect our best estimate of future market
and operating conditions. The net carrying value of assets not recoverable is reduced to fair
value. Our estimates of fair value represent our best estimate based on industry trends and
reference to market rates and transactions.
During 2006, we determined that our VNPP (Virtual Negawatt Power Plan) Asset was completely
impaired and recorded an impairment charge of $1,183,525 to reduce the carrying value of the asset
to zero. Please refer to Note 10 in the accompanying consolidated financial statements for further
information regarding this impairment charge.
Goodwill
We have made acquisitions in the past that included a significant amount of goodwill and other
intangible assets. Under generally accepted accounting principles in effect through December 31,
2001, these intangible assets were amortized over their estimated useful lives, and were tested
periodically to determine if they were recoverable from operating earnings on an undiscounted basis
over their useful lives. Effective in 2002, goodwill is no longer amortized but is subject to an
annual (or under certain circumstances more frequent) impairment test based on its estimated fair
value. Estimated fair value is less than value based on undiscounted operating earnings because
fair value estimates include a discount factor in valuing future cash flows. There are many
assumptions and estimates underlying the determination of an impairment loss, including economic
and competitive conditions, operating costs and efficiencies. Another estimate using different, but
still reasonable, assumptions could produce a significantly different result. In February 2006 we
signed a non-binding letter of intent to sell Great Lakes Controlled Energy. To determine if our
goodwill would be impaired as a result of the expected sale, we compared the carrying value of the
related reporting unit to the expected sale
40
price of the business and determined that the goodwill was impaired. As a result we recorded
an impairment loss as of December 31, 2005 of $242,830.
At the end of 2006 we completed an assessment of the goodwill associated with the acquisition
of Maximum Performance Group, Inc. and determined fair value of the related reporting unit exceeded
the carrying value, indicating that the goodwill was not impaired.
It is possible that upon completion of future impairment tests, as the result of changes in
facts or circumstances, we may have to take additional charges in future periods to recognize a
further write-down of the value of the goodwill attributed to our acquisitions to their estimated
fair values.
Stock-based Compensation
We have a stock incentive plan that provides for stock-based employee compensation, including
the granting of stock options and shares of restricted stock, to certain key employees. The plan is
more fully described in Note 26 to our financial statements. Effective January 1, 2006, we adopted
Statement of Financial Accounting Standards No. 123(R), Share-based Payment (SFAS 123(R)),
which requires, among other things, that compensation expense be recognized for employee stock
options. Prior to the adoption of SFAS 123(R), we accounted for stock compensation using the
recognition and measurement principles of Accounting Principles Board Opinion No. 25, Accounting
for Stock Issued to Employees, and related Interpretations. Under that method, compensation
expense was recorded only if the current market price of the underlying stock on the date of grant
exceeded the option exercise price. Since stock options are granted at exercise prices that are
greater than or equal the market value of the underlying common stock on the date of grant under
our stock incentive plan, no compensation expense related to stock options was recorded in the
Consolidated Statements of Operations prior to January 1, 2006. During 2006, we recognized
$4,828,955 of stock compensation expense.
Material Trends and Uncertainties
From time to time changes occur in our industry or our business that makes it reasonably
likely that aspects of our future operating results will be materially different than historical
operating results. Sometimes these matters have not occurred, but their existence is sufficient to
raise doubt regarding the likelihood that historical operating results are an accurate gauge of
future performance. We attempt to identify and describe these trends, events, and uncertainties to
assist investors in assessing the likely future performance of the Company. Investors should
understand that these matters typically are new, sometimes unforeseen, and often are fluid in
nature. Moreover, the matters described below are not the only issues that can result in variances
between past and future performance nor are they necessarily the only material trends, events, and
uncertainties that will affect the Company. As a result, investors are encouraged to use this and
other information to judge for themselves the likelihood that past performance will be indicative
of future performance.
The trends, events, and uncertainties set out in the remainder of this section have been
identified as those we believe are reasonably likely to materially affect the comparison of
historical operating results reported herein to either other past period results or to future
operating results. These trends, events and uncertainties include:
Decision to Discontinue the Active Marketing of the EnergySaver. At the end of 2006,
we decided to discontinue the active marketing of the EnergySaver and GlobalCommander and write-off
most of our remaining inventory of EnergySaver parts due to changes in lighting technology which we
believe will diminish the future prospects for the product. The Company was founded in 1997 for
the purpose of manufacturing and marketing the EnergySaver and the EnergySaver has been a material
source of revenue for the Company for the last nine years, with the product line contributing
approximately 74% and 21% of our consolidated revenue in 2005 and 2006, respectively. We will
continue to accept orders for the EnergySaver from former customers and those dealers who continue
to market the product, but we do not expect sales of this product line to represent a
41
significant portion of our revenue in future periods. We have acquired five companies within the
last two years, Maximum Performance Group, Inc., Parke P.A.N.D.A. Corporation, Kapadia Consulting,
Inc., Texas Energy Products, Inc. and Preferred Lighting, Inc. which we believe will provide most,
if not all of the Companys revenue and earnings in future periods. As a result of these changes
we will no longer be manufacturing any of our own products (the eMAC is manufactured for us by a
contract manufacturer) and we believe a significant portion of our future revenue will be derived
from the sale of services. These decisions will fundamentally change the nature of our business,
though we remain focused on providing energy conservation technologies and services.
Results of Operations
Our revenues reflect the sale of our products and services, net of allowances for returns and
other adjustments. Lime Energys sales are generated from the sale of products and services,
primarily in the U.S. Three customers collectively accounted for approximately 40% of our
consolidated billings during the year ended December 31, 2006, while one customer accounted for
approximately 30% of our consolidated billings during the year ended December 31, 2005.
Our cost of goods sold consists primarily of materials and labor. Also included in our cost of
goods sold are freight, the costs of operating our manufacturing facility, charges from the
contract manufacturer that manufactures the eMAC line of controllers, charges from outside
contractors used to install our product in our customers facilities, depreciation, and charges for
potential future warranty claims and royalty costs related to EnergySaver sales.
Sales and gross profits depend in part on the volume and mix of products sold during any given
period. Generally our proprietary products have a higher gross profit margin than products and
services that we purchase and resell.
A portion of our operating expense is relatively fixed, such as the cost of our facilities and
certain support personnel. Accordingly, an increase in the volume of sales will generally result in
an increase to our gross margins since these fixed expenses do not increase proportionately with
sales.
Selling, general and administrative (SG&A) expenses include the following components:
|
|
|
direct labor and commission costs related to our employee sales force; |
|
|
|
|
expenses related to our non-manufacturing management, supervisory and staff
salaries and employee benefits, including the costs of share based compensation; |
|
|
|
|
commission costs related to our independent sales representatives and our
distributors; |
|
|
|
|
costs related to insurance, travel and entertainment and office supplies and the
cost of non-manufacturing utilities; |
|
|
|
|
costs related to marketing and advertising our products; |
|
|
|
|
legal and accounting expenses; |
|
|
|
|
research and development expenses; |
|
|
|
|
costs related to administrative functions that serve to support the existing
businesses of the Company, as well as to provide the infrastructure for future
growth. |
Interest expense includes the costs and expenses associated with the mortgage on our
headquarters building and various vehicle loans, all as reflected on our current and prior
financial statements. Also included in interest expense for 2006 are the costs and expenses
associated with working capital indebtedness and two convertible term loans, as well as
amortization of the debt discount which includes the fair value of the warrants issued to Laurus
Master Fund Ltd. (Laurus), and the value of beneficial conversion feature attributed to the
convertible term loans, as well as amortization of deferred financing costs related to the credit
facility with Laurus. The working capital line and convertible term loans were retired in full in
June 2006.
42
Three Months Ended June 30, 2007 Compared to Three Months Ended June 30, 2006.
Our total revenue for the three-month period ended June 30, 2007 increased $2,767,875, or
207%, to $4,102,693 as compared to $1,334,818 for the three month period ended June 30, 2006.
Revenue from our Energy Services segment, which was created through the acquisitions of Parke on
June 30, 2006, Kapadia on September 27, 2006 and Texas Energy on May 31, 2007 and the creation of
Lime Midwest on January 1, 2007, was responsible for $3,083,389 of the increase. This increase was
offset by lower sales in our Energy Technology segment due to our decision in late 2006 to
discontinue the active marketing of our EnergySaver line of lighting controllers. We believe we
will experience continued increases in revenue in future periods as the result of the acquisitions
we have closed during the past 12 months and recent additions to our sales force.
Cost of sales for the three-month period ended June 30, 2007 increased $1,971,243, or 203%, to
$2,944,724 from $973,481 for the three-month period ended June 30, 2006. The increase in cost of
sales was primarily due to the increase in sales. Gross profit for the second quarter of 2007
increased $796,632, or 220%, to $1,157,969 from $361,337 earned in the second quarter of 2006. Our
gross margin on sales for the second quarter increased from 27.1% in 2006 to 28.2% in 2007. The
improvement in gross profit was due to the addition of the newly created Energy Services segment
and product mix changes in the Energy Technology segment. We believe that the gross profit will
continue to show an upward trend in future periods if sales increase in both segments of our
business as we anticipate they will.
SG&A for the three-month period ended June 30, 2007 increased $736,711, or 39%, to $2,647,873
from $1,911,162 for the three-month period ended June 30, 2006. An increase in share based
compensation of $570,161 was responsible for 77% of the increase in SG&A during the second quarter
of 2007, and the additions of Parke, Kapadia and Texas Energy caused SG&A to increase an additional
$709,000. These increases in SG&A were partially offset by reductions in SG&A related to the
termination of our EnergySaver business. We expect our quarterly SG&A for the balance of 2007 to
remain relatively unchanged from the level realized during the second quarter, except for increases
related to recently completed acquisitions.
Amortization of intangibles increased $335,925, or 230%, to $482,020 during the quarter ended
June 30, 2007 from $146,095 for the same quarter in 2006. The increase in amortization of
intangibles, which is a non-cash expense, is related to the acquisitions of Parke in June 2006,
Kapadia in September 2006 and Texas Energy in May 2007. Amortization expense for intangible assets
is expected to increase for the third quarter of 2007 due to the recent acquisition of Texas Energy
and Preferred Lighting, but should decline during the fourth quarter of 2007 due to the fact that
the Texas Energy intangible assets have a relatively short estimated useful life.
Other expenses for the three-month period ending June 30, 2007 declined $2,892,269 to $71,629
in 2007 from $2,963,956 in the second quarter of 2006. Interest expense declined $2,826,105 to
$145,851 during the three months ended June 30, 2007 from $2,971,956 for the same period in 2006.
The components of interest expense for the three month periods ended June 30, 2007 and 2006 are as
follows:
|
|
|
|
|
|
|
|
|
Three months ended June 30 |
|
2007 |
|
2006 |
|
Contractual interest |
|
$ |
58,080 |
|
|
$ |
164,181 |
|
Amortization of deferred issuance costs
and debt discount |
|
|
87,771 |
|
|
|
1,074,614 |
|
Value of adjustment in conversion price |
|
|
|
|
|
|
950,865 |
|
Prepayment penalties |
|
|
|
|
|
|
516,071 |
|
Termination of postrepayment interest
Obligation |
|
|
|
|
|
|
266,225 |
|
|
|
|
|
|
|
|
|
|
|
Total Interest Expense |
|
$ |
145,851 |
|
|
$ |
2,971,956 |
|
|
43
The repayment of our revolving line of credit and two term loans in June 2006 was the
primary contributor to the decline in our interest expense between the threemonth periods ended
June 30, 2007 and 2006. The reduction in interest expense resulting from the repayment of these
loans was partially offset by increased interest and amortization associated with the new $5
million subordinated convertible term notes which we issued in June 2007 (as more fully described
in Note 10 to our consolidated financial statements). The interest on these new subordinated
convertible term notes is payable 50% in cash and 50% in shares of our common stock valued at the
closing price of the stock on the interest due date.
During June 2006 we prepaid two convertible term loans. Upon the prepayment of these loans we
were required to pay a prepayment penalty of $516,071 and to recognize as interest expense the
remaining unamortized balance of the capitalized issuance costs and the debt discount which totaled
$978,525. During June 2006 we also incurred a charge of $266,225 related to the termination of our
obligation to pay the term loan lender a portion of certain cash flows over a five year period.
Upon the closing of a PIPE Transaction in June 2006 and the repayment of the term loans, the holder
of the revolving note elected to convert the outstanding balance on the note into shares of our
common stock. The revolving note contained antidilution provisions which automatically adjusted
the conversion price of the note to $1.00 per share, which is the price at which we issued shares
as part of the June 2006 PIPE transaction. The lender would have received 59,902 shares of common
stock upon conversion of the revolving note utilizing the conversion price prior to this
adjustment, but as a result of the adjustment it received 943,455 shares. The market value of the
883,553 additional shares it received as a result of the adjustment was recorded as interest
expense in the amount of $950,865.
Interest income increased $66,164 to $74,222 for the second quarter of 2007 from $8,058 for
the same period of 2006. The increase in interest income was the result of higher average invested
cash balances and higher interest rates.
Dividend expense was $0 for the quarter ended June 30, 2007, as compared to $23,732,435 for
the quarter ended June 30, 2006. In June 2006, all of the Series E Convertible Preferred Stock was
converted to common stock, thus eliminating all future dividends.
Six Months Ended June 30, 2007 Compared to Six Months Ended June 30, 2006.
Total revenue for the sixmonth period ended June 30, 2007 increased $4,150,077, or 167%, to
$6,631,240 as compared to $2,481,163 for the sixmonth period ended June 30, 2006. Revenue from
the Energy Services segment, which was created on June 30, 2006 with the acquisition of Parke,
generated $4,788,232 or 72% of our revenue during the first six months of 2007. This increase in
revenue was partially offset by lower sales in our Energy Technology segment due to our decision to
discontinue the active marketing of the EnergySaver product line in late 2006.
Cost of sales for the sixmonth period ended June 30, 2007 increased $3,219,321, or 171%, to
$5,101,204 from $1,881,883 for the same period in 2006. The increase in cost of sales was directly
related to the increase in sales. The gross profit earned during the first six months of 2007
increased $930,756, or 155%, to $1,530,036 from $599,280 in the first six months of 2006, while our
gross profit margin declined from 24.2% to 23.1%. The decline in our gross margin was due
primarily to a $66,640 increase in share based compensation during the first six months of 2007 and
differences in the mix of business realized during the periods.
SG&A for the sixmonth period ended June 30, 2007 increased $2,243,620, or 61%, to $5,903,785
from $3,660,165 for the same period during 2006. Increases in share based compensation were
responsible for $1,185,509 or 53% of the increase in SG&A during 2007, while the acquisition of
Parke, Kapadia and Texas Energy added an additional $1,410,000 to SG&A expense for the period.
SG&A for 2007 also included $162,000 in noncash charges related to warrants issued to consultants
as partial consideration for their services and a $268,125 penalty for failing to register the
shares issued as part of the June 2006 PIPE transaction as required under the transaction
documents. The shares were registered on February 14, 2007 at
which time the
44
penalty stopped accruing. The penalty was paid through the issuance of shares
of our common stock in February 2007 (see Note 13(b) to our condensed consolidated financial
statements for additional information regarding the registration penalty). These increases in SG&A
were partially offset by reductions in SG&A as a result of our decision to cease the active
marketing of our EnergySaver product line in late 2006. SG&A for the first six months of 2006
included registration penalties of $185,260 related to our inability to register shares for the
former lender under two convertible term loans. This penalty stopped accruing in June 2006 when
the related loans were repaid. The penalties were satisfied through the issuance of common stock
in June 2006.
Amortization of intangible assets increased $615,822, or 191%, to $938,829 during the first
half of 2007 as compared to $323,007 for the first half of 2006. The increase in the expense was
the result of the acquisitions of Parke in June 2006, Kapadia in September 2006 and Texas Energy in
May 2007. Amortization expense related to intangible assets is expected to be relatively unchanged
from the first half of 2007, but should begin to decline in 2008.
Other expense declined $3,169,192, to $41,914 from $3,211,106 for the sixmonth period ended
June 30, 2007 and 2006, respectively. Interest expense decreased $3,077,626 to $162,249 during the
first six months of 2007 from $3,239,875 during the first six months of 2006. The components of
interest expense for the six month periods ended June 30, 2007 and 2006 are as follows:
|
|
|
|
|
|
|
|
|
Six months ended |
|
2007 |
|
2006 |
|
Contractual interest |
|
$ |
74,478 |
|
|
$ |
330,744 |
|
Amortization of deferred issuance costs
and debt discount |
|
|
87,771 |
|
|
|
1,175,970 |
|
Value of adjustment in conversion price |
|
|
|
|
|
|
950,865 |
|
Prepayment penalties |
|
|
|
|
|
|
516,071 |
|
Termination of post repayment interest
obligation |
|
|
|
|
|
|
266,225 |
|
|
|
|
|
|
|
|
|
|
|
Total Interest Expense |
|
$ |
162,249 |
|
|
$ |
3,239,875 |
|
|
Contractual interest expense (the interest on outstanding loan balances) declined
$256,266 to $74,478 during the first six months of 2007 from $330,744 during the same period in
2006. In June 2006 we repaid two convertible terms loans and our convertible revolving note was
converted to common stock, which contributed to the decline in contractual interest expense. This
was partially offset by new $5 million subordinated convertible term notes which we issued in June
2007 (see Note 10 to our condensed consolidated financial statements). The interest payable on
these new subordinated convertible term notes are payable 50% in cash and 50% in shares of our
common stock.
Upon the repayment of the convertible term loans in June 2006, we were required to pay a
prepayment penalty of $516,071 and to recognize as interest expense the remaining unamortized
balance of the capitalized issuance costs and the debt discount totaling $978,525. During June
2006 we also incurred a charge of $266,225 related to the termination of our obligation to pay the
term loan lender a portion of certain cash flows for a five year period. Upon the closing of a
PIPE transaction in June 2006 and the repayment of the term loans, the holder of the revolving note
elected to convert the outstanding balance on the note into shares of our common stock. The
revolving note contained antidilution provisions which automatically adjusted the conversion price
of the note to $1.00 per share, which is the price at which we issued shares as part of the June
2006 PIPE transaction. The lender would have received 59,902 shares of common stock upon
conversion of the revolving note utilizing the conversion price prior to this adjustment, but as a
result of the adjustment it received 943,455 shares. The market value of the 883,553 additional
shares it received as a result of the adjustment was recorded as interest expense in the amount of
$950,865.
Dividend expense was $0 for the sixmonth period ended June 30, 2007, as compared to
$24,347,725 for the same period in 2006. All of the Series E Convertible Preferred Stock converted
to common stock in June 2006.
45
TwelveMonth Period Ended December 31, 2006 Compared With the TwelveMonth Period Ended December
31, 2005
Revenue. Our revenue increased $4,450,195, or 120% to $8,143,624 during the year ended
December 31, 2006, as compared to $3,693,429 for the year ended December 31, 2005. Revenue
generated by our Energy Services segment was responsible for $3,302,014 or 74% of the increase in
our revenue for 2006. The Energy Services segment was created in 2006 through the acquisition of
Parke on June 29, 2006 and Kapadia on September 27, 2006. The balance of the increase was related
to increased revenue associated with the eMAC, partially offset by lower EnergySaver sales. The
increase in the eMAC revenue was due to the inclusion of a full year of results for MPG (MPG was
acquired effective May 3, 2005) and higher unit sales. We expect to see steady growth in revenue
in future periods from both the Energy Services segment and MPG. This growth in revenue will be
partially offset by declining EnergySaver sales due to our recent decision to discontinue the
active marketing of this product line.
Gross Profit. Our gross profit increased $1,210,755 to $1,212,330 for the year ended December
31, 2006, as compared to $1,575 for the year ended December 31, 2005, while our gross profit margin
increased to 14.89% for 2006 as compared to 0.04% earned in 2005. Included in the 2006 cost of
sales was a $568,577 one time charge to writeoff most of our EnergySaver inventory due to our
decision to terminate the active marketing of this product. Adjusting for this charge, our gross
profit for 2006 was $1,780,907, or 21.87% of sales. The increase in gross profit from 2005 was
primarily attributable to increased sales of the eMAC and the acquisition of Parke on June 29,
2006. The 2006 cost of goods sold includes $296,953 of share based compensation expense as a
result of our adoption of SFAS 123(R) on January 1, 2006. No share based compensation was included
in the 2005 cost of goods sold. We believe that a full year of contributions from Parke and
Kapadia in addition to continued revenue increases at MPG will contribute to continued improvements
in our gross margin in future periods.
SG&A Expenses and Amortization of Intangibles. Our selling, general and administrative
expense increased $6,802,197 or 127% to $12,165,700 for 2006, as compared to $5,363,503 for 2005.
Approximately 67% or $4,532,001 of the increase in the 2006 SG&A was related to our adoption of
SFAS 123(R) on January 1, 2006. SFAS 123(R) requires that we record stock compensation expense for
stock options granted to our employees and directors. This noncash expense is equal to the grant
date fair market value of these options, amortized over the options vesting periods. We did not
record stock compensation expense in 2005. Also contributing to the increase in SG&A expense was
$531,000 in penalties resulting from our inability to have the Laurus registration and the June
PIPE registration declared effective within the timeframes required under the related documents, an
increase in legal expenses of approximately $200,000, a $140,000 increase in research and
development expense related to enhancements to the eMAC, approximately $100,000 in higher than
normal accounting expenses related to the various registration statements filed during 2006,
approximately $660,000 of SG&A expense resulting from the inclusion of Parke and Kapadia for
portions of 2006 and approximately $680,000 from the inclusion of MPG for the full year.
Elimination of those expenses which are nonrecurring changes is expected to result in a decrease
in SG&A during 2007.
Impairment Loss. As is more fully explained in Note 10 to the financial statements, during
the quarter ended September 30, 2006, we completed a preliminary impairment analysis and determined
that the carrying value of the ComEd VNPP (Virtual Negawatt Power Plan) asset exceeded its fair
value by $760,488. In order to reduce the carrying value to the fair value we recorded a noncash
impairment charge of $760,488 in September 2006. During the fourth quarter of 2006 we updated our
analysis based on new information and revised assumptions and determined that the asset was
completely impaired. As a result we reduced the carrying value of the asset to $0 and recorded an
additional impairment charge of $423,037 in December 2006.
Other NonOperating Income (Expense). Other Expense increased $2,534,935 during 2006 to
$3,079,188, compared to $544,253. Interest expense increased $2,670,380 to $3,273,370 during 2006
from $602,990 during 2005. The components of interest expense for the years ended December 31,
2006 and 2005 are as follows:
46
|
|
|
|
|
|
|
|
|
Twelve months ended December 31, |
|
2006 |
|
2005 |
|
Contractual interest |
|
$ |
364,239 |
|
|
$ |
277,577 |
|
Amortization of deferred issuance costs
and debt discount |
|
|
1,175,970 |
|
|
|
165,413 |
|
Value of warrant |
|
|
|
|
|
|
160,000 |
|
Value of adjustment in conversion price |
|
|
950,865 |
|
|
|
|
|
Prepayment penalties |
|
|
516,071 |
|
|
|
|
|
Termination of post repayment interest
obligation |
|
|
266,225 |
|
|
|
|
|
|
Total Interest Expense |
|
$ |
3,273,370 |
|
|
$ |
602,990 |
|
|
Contractual interest expense (the interest on outstanding loan balances) increased
$86,662 or 31% to $364,239 during 2006 from $277,577 in 2005. The increase in contractual interest
was the result of higher average outstanding balances, due in part to the issuance of the $5
million term loan in November 2005 (which was repaid in June 2006), and higher average interest
rates. Amortization of the deferred issuance costs and the debt discount related to the Laurus
revolver and convertible term loans, which is included in interest expense, increased $1,010,557 to
$1,175,970 during 2006 from $165,413 during 2005. With the early repayment of all of the Laurus
loans in June 2006, we were required to recognize as interest expense the remaining unamortized
balances of the capitalized issuance costs and the debt discount of $1,009,277. The balance of the
increase in amortization expense was related to the amortization of deferred issuances costs
associated with the $5 million term loan issued in November 2005. 2006 interest expense also
includes prepayment penalties of $516,071 for the early repayment of the Laurus term loans and
$266,225 for the cost of terminating the obligation to pay Laurus a portion of the cash flows
generated by certain VNPP projects for the next five years. Upon the closing of the PIPE
Transaction and repayment of the term loans in June 2006, Laurus elected to convert the outstanding
balance on the revolving note into shares of our common stock. The revolving note contained
antidilution provisions which automatically adjusted the conversion price of the note to $1.00 per
sharethe price at which we issued shares as part of the PIPE Transaction. Laurus would have
received 59,902 shares of common stock upon conversion of the revolving note utilizing the
conversion price prior to the adjustment, but as a result of this adjustment it received 943,455
shares. The market value of the 883,553 additional shares it received as a result of the
adjustment was recorded as interest expense in the amount of $950,865.
During April 2005 we issued a warrant to purchase 400,000 shares of our common stock to Laurus
in exchange for its consent to a private equity issuance and the acquisition of MPG, as well as
waiving its right to adjust the conversion price on its convertible term note and convertible
revolving note. The warrant was valued at $160,000 using a modified BlackScholes option pricing
model and charged to interest expense during the period.
47
Preferred Stock Dividends. Dividend expense recognized during the years ended December 31,
2005 and 2006 is comprised of the following:
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
2005 |
|
Accrual of Series E Convertible Preferred
dividend |
|
$ |
698,000 |
|
|
$ |
1,366,900 |
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with change in
conversion price of the Series E Convertible
Preferred Stock |
|
|
23,085,467 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with change in the
exercise price of warrants to purchase shares
of common stock |
|
|
564,258 |
|
|
|
484,445 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
24,347,725 |
|
|
$ |
1,851,345 |
|
|
Dividend expense increased $22,496,380 to $24,347,725 in 2006, from $1,851,345 in 2005.
Dividends accrued on the outstanding Series E Convertible Preferred declined $668,900 to $698,000
in 2006 from $1,366,900 in 2005, due to the conversion of all of the outstanding Series E
Convertible Preferred to common stock on June 29, 2006.
We have issued certain securities in the past that contain antidilution provisions (commonly
referred to as ratchets) which automatically adjust the exercise or conversion price of the
security if we issue any new equity security, or securities convertible into equity, at a price
below the exercise or conversion price of the security with the antidilution provision.
Primarily as a result of our declining stock price, we had three instances during 2006 where we had
to adjust the exercise price or the conversion price on one or more securities, each of which
resulted in us recording a charge for a noncash deemed dividend. In January we issued stock
options to our new CEO at the then market price of $9.30 per share, which was less than the $13.80
exercise price on a warrant held by one of our former Series E Preferred stock holders. Adjusting
the exercise price of this warrant resulted in a noncash deemed dividend of $266,390.
On June 29, 2006, we issued shares in the PIPE Transaction at $1.00 per share (as discussed in
Note 21 to our financial statements). The issuance price of the securities issued in this
transaction was less than the conversion price on our Series E Convertible Preferred stock, which
contained antidilution provisions. Prior to the antidilution adjustment the holders of the
Series E Convertible Preferred stock would have been entitled to 1,574,027 shares of common stock
on conversion, whereas after the adjustment they were entitled to 21,648,346 shares of common stock
on conversion. The market value of the additional 20,074,319 shares receivable upon conversion was
recorded as a noncash deemed dividend in the amount of $23,085,467 on June 29, 2006.
In addition, a number of the outstanding common stock warrants, most of which were held by
former holders of our Series E Convertible Preferred Stock, also contained similar antidilution
provisions. Prior to the June 2006 PIPE Transaction the exercise price on these warrants ranged
from $13.50 per share to $15.00 per share. The issuance of common stock in the June 2006 PIPE
Transaction caused the exercise price on these warrants to automatically be reduced to $1.00 per
share. We compared the value of the warrants with the old exercise price to the value of the
warrants with the reduced exercise price, through the use of a modified BlackSholes option
pricing model, and determined that the reduction in the exercise price had increased the value of
the warrants by $297,868. We recognized the expense as a deemed dividend by offsetting charges and
credits to additional paidin capital, without any effect on total stockholders equity.
48
On April 28, 2005, in exchange for $5,625,000 in gross proceeds, we issued a package of
securities to five institutional investors. The package of securities included 416,667 shares of
our common stock and 42 month warrants to purchase 208,333 additional shares of common stock at
$15.75 per share. The issuance of these shares caused the exercise price of certain warrants with
antidilution provisions to automatically adjust to $13.50 per share. We compared the value of
the warrants with the old exercise price to the value of the warrants with the reduced exercise
price, through the use of a modified BlackSholes option pricing model, and determined that the
reduction in the exercise price had increased the value of the warrants by $484,445. Since these
warrants were issued as part of a securities offering the increase in value is considered to be a
deemed dividend to the security holders. We recorded the deemed dividend by offsetting charges and
credits to additional paidin capital, without any effect on total stockholders equity.
TwelveMonth Period Ended December 31, 2005 Compared With the TwelveMonth Period Ended December
31, 2004
Revenue. Our revenue increased $2,959,799 to $3,693,429 during the year ended December 31,
2005 from $733,630 during the year ended December 31, 2004. Approximately $950,000 or 39% of the
increase was due to the acquisition of Maximum Performance Group in May 2005. EnergySaver related
sales increased approximately $1,700,000 during 2005 over the year earlier period as the result of
increased EnergySaver sales. Unit sales of EnergySavers increased 198% from 67 units in 2004 to
200 units in 2005. One customer was responsible for a significant portion of this increase.
Approximately $325,000 of the increase in revenue was due to a short term utility consulting
project completed in May 2005.
Gross Profit. Our consolidated gross profit increased $130,311 in 2005 to $1,575 from a loss
of $128,736 in 2004. The increase in gross profit was due to a consulting assignment completed in
May 2005 by the Energy Technology segment and to improved margins on EnergySaver sales primarily as
the result of increased volume.
SG&A Expenses and Amortization of Intangibles. Selling, general and administrative expenses
increased $1,129,263 or 27% to $5,363,503 during 2005 from $4,234,240 in 2004. Inclusion of eight
months of expense from MPG was responsible for approximately $1,365,000 of the 2005 SG&A expense.
Impairment Loss. We incurred an impairment loss of $242,830 during 2005 related to the
reduction in carrying value of goodwill associated with the acquisition of Great Lakes Controlled
Energy. In February 2006 we signed a letter of intent to sell Great Lakes Controlled Energy and we
sold the Company effective March 31, 2006. At the end of 2005 we compared the carrying value of
the goodwill related to Great Lakes to the expected sale price of the business and determined that
the goodwill was impaired. As a result, we recorded an impairment loss as of December 31, 2005 of
$242,830. There was no impairment loss recorded in 2004.
Other NonOperating Income (Expense). Other nonoperating expense is comprised of interest
expense and interest income. Interest expense declined $45,564 to $602,990 during 2005 from
$648,554 during 2004. The components of interest expense for the years ended December 31, 2005 and
2004 are as follows:
|
|
|
|
|
|
|
|
|
Twelve months ended December 31, |
|
2005 |
|
2004 |
|
Contractual interest |
|
$ |
277,577 |
|
|
$ |
74,117 |
|
|
|
|
|
|
|
|
|
|
Amortization of deferred issuance costs
and debt discount |
|
|
165,413 |
|
|
|
574,437 |
|
|
|
|
|
|
|
|
|
|
Value of warrant |
|
|
160,000 |
|
|
|
|
|
|
Total Interest Expense |
|
$ |
602,990 |
|
|
$ |
648,554 |
|
|
Amortization of the deferred issuance costs and debt discount related to the Laurus
revolver and convertible term loans, which are included in interest expense, declined $409,024 to
$165,413 for 2005 from $574,437 during 2004. The deferred issuance costs and debt discount was
being amortized using the effective interest method, thus decline as the outstanding balance on the
related term loan is repaid or converted. During January 2004, Laurus converted a portion of its
term loan resulting in accelerated recognition of $193,000 in
49
amortization expense. No such conversions occurred during 2005. Other interest expense
increased $203,720 during 2005 primarily as a result of borrowings under the revolver, a new
$5,000,000 term loan entered into in late November 2005, and higher interest rates. There were no
borrowings under the revolver during 2004. During the second quarter of 2005 we issued a 5 year
warrant to purchase 26,667 shares of our common stock at $15.00 per share to Laurus in exchange for
its consent and waiver to permit us to complete a private placement of our common stock and to
acquire MPG. This warrant was valued at $160,000 using a modified BlackSholes option pricing
model and the value was charged to interest expense during the period.
Interest income increased $36,232 to $58,737 during 2005 from $22,505 earned in 2004. The
increase in interest income was due to higher average invested cash balances and increases in the
interest rates paid on the invested balances.
Preferred Stock Dividends. The dividend expense recognized during 2005 and 2004 was comprised
of the following:
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2005 |
|
2004 |
|
Accrual of dividend on Series A Convertible
Preferred |
|
$ |
|
|
|
$ |
540,705 |
|
|
|
|
|
|
|
|
|
|
Accrual of Series C Preferred dividend |
|
|
|
|
|
|
53,206 |
|
|
|
|
|
|
|
|
|
|
Accrual of Series D Preferred dividend |
|
|
|
|
|
|
35,932 |
|
|
|
|
|
|
|
|
|
|
Accrual of Series E Preferred dividend |
|
|
1,366,900 |
|
|
|
1,006,937 |
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with beneficial
conversion price on shares issuable in
satisfaction preferred dividends |
|
|
|
|
|
|
1,127,021 |
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with the redemption
and exchange of outstanding preferred stock |
|
|
|
|
|
|
1,860,458 |
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with change in the
expiration date of warrants to purchase shares
of preferred stock |
|
|
|
|
|
|
15,000 |
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated with change in the
exercise price of warrants to purchase shares
of common stock |
|
|
484,455 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
1,851,345 |
|
|
$ |
4,639,259 |
|
|
Our dividend expense for 2005 declined $2,787,914 or 60% to $1,851,345 from $4,639,259 in
2004. We accrued dividends of $1,366,900 and $1,636,780 on our Convertible Preferred Stock during
2005 and 2004, respectively. This decline in accrued dividends was the result of the reduction in
the number of preferred shares outstanding and a reduction in the dividend rate that resulted from
the redemption and exchange effected in March 2004. The dividends accrued during 2005 and 2004
were satisfied through the issuance of 13,669 shares of preferred stock and 16,368 shares of
preferred stock, respectively. We were required to recognize a noncash deemed dividend of
$1,127,021 during 2004 because the conversion price on these dividend shares was lower than the
market price of our common stock on the date of issue.
50
On April 28, 2005, in exchange for $5,625,000 in gross proceeds, we issued a package of
securities to five institutional investors. The package of securities included 416,667 shares of
our common stock and 42 month warrants to purchase 208,333 additional shares of common stock at
$15.75 per share. The issuance of these shares caused the exercise price of certain warrants with
antidilution provisions to automatically adjust to $13.50 per share. We compared the value of
the warrants with the old exercise price to the value of the warrants with the reduced exercise
price, through the use of a modified BlackSholes option pricing model, and determined that the
reduction in the exercise price had increased the value of the warrants by $484,445. Since these
warrants were issued as part of a securities offering the increase in value is considered to be a
deemed dividend to the security holders. We recorded the deemed dividend by offsetting charges and
credits to additional paidin capital, without any effect on total stockholders equity.
As part of the redemption and exchange completed in March 2004, shares of our Series A, Series
C and Series D convertible preferred stock were exchanged for shares of the new Series E preferred
stock at the rate of 10 shares of old preferred for each share of new Series E preferred stock.
Additionally, each share of old preferred stock was convertible into 0.667 shares of common stock,
whereas each share of new Series E convertible preferred stock was convertible into 6.67 shares of
common stock. Despite the fact that we believe the redemption and exchange transaction was
favorable for the Company and its common stockholders (see Note 23(c) to the financial statements),
we were required to record a noncash deemed dividend on the transaction of $1,860,458. For
accounting purposes the transaction was viewed as a redemption for cash and shares of Series E
Preferred stock. The noncash deemed dividend was determined by comparing the fair value of the
consideration given (the cash and the market value of the Series E Preferred) to the carrying value
of the old preferred stock that was redeemed. The fair value of the consideration given exceeded
the carrying value of the old preferred primarily due to the fact that the market price of our
common stock was higher on the day the redemption and exchange transaction closed than it was when
the shares of the old preferred stock were originally issued.
We also incurred a $15,000 deemed dividend during 2004 when we agreed to extend the expiration
date on warrants to purchase shares of our Series E Convertible Preferred stock from September 30,
2004 to December 31, 2004. We agreed to extend these warrants to permit holders who participated
in the redemption and exchange more time to exercise their warrants without violating the short
swing trading rules of section 16(b) of the Securities Act of 1934 or our insider trading policy
which prohibits the trading of our securities during certain blackout periods prior to the filing
of our financial statements.
Liquidity and Capital Resources
As of June 30, 2007, we had cash and cash equivalents of $8,340,281 compared to $4,663,618 on
December 31, 2006. Our debt obligations as of June 30, 2007 consisted of a mortgage of $508,000 on
our facility in Elk Grove Village, Illinois, subordinated convertible term notes of $5 million,
vehicle loans of $66,871 and a demand note payable to a stockholder of $150,000.
Our principal cash requirements are for operating expenses, including employee costs, the
costs related to research and development, advertising costs, the cost of outside services
including those providing accounting, legal, engineering and consulting services, rent, the funding
of inventory and accounts receivable, and capital expenditures and the costs of servicing our
outstanding debt. We have financed our operations since inception through the private placement of
our common stock, preferred stock and various secured and unsecured loans.
51
The following table summarizes, for the periods indicated, selected items in our consolidated
statement of cash flows:
|
|
|
|
|
|
|
|
|
Six months ended June 30 |
|
2007 |
|
2006 |
|
Net cash used in operating activities |
|
$ |
(3,657,255 |
) |
|
$ |
(2,756,344 |
) |
Net cash used in investing activities |
|
|
(424,224 |
) |
|
|
(2,945,892 |
) |
Net cash provided by financing activities |
|
|
7,758,142 |
|
|
|
11,002,515 |
|
|
|
|
|
|
|
|
|
|
|
Net increase in cash and cash equivalents |
|
|
3,676,663 |
|
|
|
5,300,279 |
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, at beginning of period |
|
|
4,663,618 |
|
|
|
4,229,150 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, at end of period |
|
$ |
8,340,281 |
|
|
$ |
9,529,429 |
|
|
Six Months Ended June 30, 2007 Compared to Six Months Ended June 30, 2006.
Net cash increased $3,676,663 during the first six months of 2007 as compared to an increase
of $5,300,279 during the same period in 2006.
Operating Activities
Cash consumed by operating activities increased $900,911, or 33%, to $3,657,255 during the
first six months of 2007 as compared to $2,756,344 during the same period in 2006. Cash used to
fund the net loss before changes in working capital decreased $1,341,278, or 41%, to $1,904,233
during the first six months of 2007 from $3,245,501 during the first six months of 2006. This
decline was primarily due to the improvement in the gross profit earned on sales. We anticipate
continued reductions in the cash used to fund the net loss before changes in working capital as
sales and profitability improve in future periods.
Changes in working capital (adjusted for business acquisitions and disposals) consumed cash of
$1,753,032 during the first six months of 2007 as compared to generating cash of $489,157 during
the first six months of 2006. The increase in working capital during the six month period ended
June 30, 2007 was the result of increased business activity during the period. We expect our
working capital requirements to continue to grow in future periods if the business continues to
expand as we hope it will.
Investing Activities
Cash used in investing activities declined $2,521,668 to $424,224 during the sixmonth period
ended June 30, 2007, from $2,945,892 for the same period in 2006. During the second quarter of
2007 we acquired the assets and assumed certain liabilities of Texas Energy Products. The cost of
the acquisition, including transaction costs, net of cash acquired was $305,706. In June 2006 we
acquired Parke P.A.N.D.A. Corporation for $2,849,762, which includes the cash consideration and
transaction costs, net of the cash acquired. Fixed asset purchases increased $105,974 to $118,518
during the first six months of 2007 from $12,544 during the same period of 2006. The increase was
primarily related to purchases of additional delivery vans and acquisition of a new accounting
system and related hardware.
Financing Activities
Financing activities generated cash of $7,758,142 during the first six months of 2007 as
compared to generating $11,002,515 during the first six months of 2006. In April 2007 we received
the proceeds from a stockholder rights offering which raised $2,999,632 and incurred issuance costs
of $248,293. During May and June of 2007 we raised $5,000,000 through the issuance of subordinated
convertible term notes to a group of eight investors, incurring issuance costs of $8,572 in the
process. We also borrowed $33,228 during the first half of 2007 to fund the purchase of a new
delivery van, made scheduled payments of $25,448 on our mortgage and vehicle loans and received
$7,595 from the exercise of warrants.
52
In June 2006 we raised $17,875,000 in gross proceeds through the sale of our common stock,
while incurring $90,079 in costs related to the issuance. We used $5,038,030 of the proceeds to
prepay the principal on two convertible term loans and the holder of our convertible revolving
note converted $943,455 outstanding on the note to common stock. Also during 2006 we used
$1,056,545 to pay down our revolver, $287,831 for scheduled principal payments and $400,000 to pay
off the balance on Parkes revolver, which we assumed as part of the Parke acquisition.
LIQUIDITY
Our primary sources of liquidity are our available cash reserves. As of June 30, 2007 our
cash balance was $8,340,281.
During fiscal 2006, operating activities consumed cash of $6.3 million. We believe that
changes we implemented in 2006 and the first half of 2007, including the reduction in our
outstanding debt, the discontinuation of the active marketing of the EnergySaver, the acquisitions
of Parke, Kapadia, Texas Energy and Preferred Lighting and various personnel changes will lead to a
reduction in our operating loss and the cash consumed in operating activities before changes in
working capital.
Our ability to continue to expand the sales of our products and services will require the
continued commitment of significant funds. The actual timing and amount of our future funding
requirements will depend on many factors, including the amount and timing of future revenues,
working capital requirements, the level and amount of product marketing and sales efforts and the
magnitude of research and development, among other things.
During the last six fiscal years we have raised net proceeds of approximately $67 million
through the issuance of shares of our common and preferred stock and notes, which has allowed us
acquire companies and to continue to execute our business plan. Most of these funds have been
consumed by operating activities, either to fund our losses or for working capital requirements.
In an attempt to move the Company to a position where it can start to generate positive cash flow,
we have set the following key strategies for cash flow improvement in 2007:
|
|
|
Focus on increasing the profitable sales of our products and services. We
believe that we have taken important steps toward achieving this goal during the last
twelve months and are starting to see the results of these efforts. During the first half
of 2007 we increased our sales by 167% when compared to the first half of 2006. At the
same time our operating loss declined by approximately 60% and the cash used to fund the
operating loss before change in working capital declined 41%. Our growth in revenue has
come through acquisitions and the expansion of new and existing businesses. We believe
that the current infrastructure can support annual sales of $25 million to $30 million
without adding significant additional SG&A expense. If we can do this we believe we will
significantly reduce or eliminate the cash consumed for operating activities before changes
in working capital. |
|
|
|
|
Expand our sales through internal product development, acquisitions and/or opening
new offices. We believe there are opportunities for further growth through geographic
and product line expansion. We can expand geographically by opening new offices, hiring
additional sales people and/or by acquiring established businesses in regions of the
country we do not currently serve. We can add to our product line through internal product
development, partnerships, joint ventures, licensing agreements and/or by acquiring
business with products, services and/or expertise that we do not currently have. An
expanded product line would allow us to offer additional energy solutions to our customers,
thereby increasing the value of each customer relationship. |
53
|
|
|
Aggressively manage our costs in order to conserve cash. The prudent use of the
capital resources available to us remains one of our top priorities. We are constantly
reviewing our operations to identify more efficient ways to achieve our objectives. |
We believe that if we are successful in achieving these priorities we should have sufficient
liquidity to allow us to operate until our operations turn cash flow positive. If we are not able
to achieve some or all of these priorities, we may begin to experience a liquidity shortage in 2008
which could force us to raise additional capital, scale back our growth plans, or in the worst case
cease operations.
If we raise additional capital in future periods (which may require stockholder approval), our
existing stockholders will likely experience dilution of their present equity ownership position
and voting rights, depending upon the number of shares issued and the terms and conditions of the
issuance. Any new equity securities will likely have rights, preferences or privileges senior to
those of our common stock.
Contractual Obligations
Our obligations to make future payments under contracts as of December 31, 2006 are as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments due by period |
|
|
|
|
|
|
|
Less than |
|
|
1 to 3 |
|
|
3 to 5 |
|
|
More than |
|
Contractual Obligations |
|
Total |
|
|
1 year |
|
|
years |
|
|
years |
|
|
5 years |
|
Longterm debt (1) |
|
$ |
572,382 |
|
|
$ |
48,128 |
|
|
$ |
506,896 |
|
|
$ |
13,886 |
|
|
$ |
3,472 |
|
Capital leases |
|
|
373 |
|
|
|
373 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating leases |
|
|
422,438 |
|
|
|
140,803 |
|
|
|
228,321 |
|
|
|
53,314 |
|
|
|
|
|
Employment agreements |
|
|
2,187,500 |
|
|
|
1,290,000 |
|
|
|
897,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
3,182,693 |
|
|
$ |
1,479,304 |
|
|
$ |
1,632,717 |
|
|
$ |
67,200 |
|
|
$ |
3,472 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Excludes floating rate interest on the longterm debt. Interest payments required during
2007, based on current interest rates are projected to be $47,000. |
Recent Accounting Pronouncements
In July 2006, the FASB issued Interpretation No. 48, Accounting for Uncertainty in Income
Taxes, an interpretation of FASB Statement No. 109 (FIN 48). FIN 48 provides guidance on the
financial statement recognition and measurement of a tax position taken or expected to be taken in
a return. FIN 48 requires that companies recognize in their financial statements the impact of a
tax position if that position more likely than not will be sustained on an audit, based on the
technical merits of the position. FIN 48 also provides guidance on derecognition, classification,
interest and penalties, accounting in interim periods, disclosures and transition provisions. We
adopted FIN 48 on January 1, 2007. No adjustment to our retained earnings was made as a result of
the implementation of FIN 48.
Our subsidiaries file income tax returns in various tax jurisdictions, including the United
States and certain U.S. states. We have substantially concluded all US Federal and State income tax
matters for years up to and including 2001.
We have recorded a valuation allowance equaling the deferred tax asset due to the uncertainty
of its realization in the future. At December 31, 2006, we had U.S. federal net operating loss
carryforwards available to offset future taxable income of approximately $64 million, which expire
in the years 2018 through 2026. Under section 382 of the Internal Revenue Code of 1986, as amended,
the utilization of US net operating loss carryforwards may be limited under the change in stock
ownership rules of the IRC. As a result of ownership
54
changes as defined by Section 382, which have occurred at various points in our history, we
believe utilization of our net operating loss carryforwards will likely be significantly limited
under certain circumstances.
Our policy is to recognize interest and penalties related to income tax matters in interest
and income tax expense respectively. There were no interest and penalties related to income taxes
recorded at January 1, 2007, the date of adoption of FIN 48.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and
Financial LiabilitiesIncluding an Amendment of FASB Statement No. 115, which permits entities to
choose to measure many financial instruments and certain other items at fair value. The objective
is to improve financial reporting by providing entities with the opportunity to mitigate volatility
in reported earnings caused by measuring related assets and liabilities differently without having
to apply complex hedge accounting provisions. This Statement is expected to expand the use of fair
value measurement, which is consistent with the FASBs longterm measurement objectives for
accounting for financial instruments. This Statement is effective as of the beginning of an
entitys first fiscal year that begins after November 15, 2007. We will adopt this Statement
effective January 1, 2008. We are currently evaluating the impact that the adoption of SFAS No. 159
will have on our consolidated results of operations and financial position.
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements, which defines fair
value, establishes a framework for measuring fair value and expands disclosures about fair value
measurements. The statement is effective for fiscal years beginning after November 15, 2007. We are
currently evaluating the impact of adopting SFAS No. 157 on our condensed consolidated financial
statements.
Quantitative and Qualitative Disclosures About Market Risk
The only significant exposure we have to market risk is the risk of changes in market interest
rates. The interest rate on our mortgage is variable and changes with changes in the prime rate.
The interest rate on the mortgage is equal to the prime rate plus 1/2%. As of September 1, 2007, the
prime rate was 8.25%. If the prime rate were to increase 1 percentage point, the aggregate annual
interest cost on the mortgage would increase by approximately $5,000.
DESCRIPTION OF PROPERTY
Our headquarters are located at 1280 Landmeier Road in Elk Grove Village, Illinois. This
facility is approximately 13,000 square feet and houses the corporate headquarters and a warehouse.
We acquired this facility in August 1998 with a combination of stock and cash. The cash portion of
the purchase price was financed through a mortgage on the building. The mortgage was refinanced in
December 2006, bears interest at the rate of prime (currently 8.25%) plus 0.5%, and is payable in
monthly installments of $3,000 plus interest, until a final balloon payment which is due on
February 2008. There is no penalty for prepayment of the mortgage. As of March 2, 2007, the
outstanding principal amount of the mortgage was $517,000.
On May 3, 2005, we acquired Maximum Performance Group, Inc (MPG). MPG currently leases a
3,100 square foot office in San Diego, California and a 2,800 square foot office in New York City.
The San Diego lease expired during 2005 and is currently operating on a month to month basis with
a 90 day termination notice requirement. The New York office lease has a term of five years and
will expire in September 2010.
Our headquarters are located at 1280 Landmeier Road in Elk Grove Village, Illinois. This
facility is approximately 13,000 square feet and houses the corporate headquarters and a warehouse.
We acquired this facility in August 1998 with a combination of stock and cash. The cash portion of
the purchase price was financed through a mortgage on the building. The mortgage was refinanced in
December 2006, bears interest at the rate of prime (currently 8.25%) plus 0.5%, and is payable in
monthly installments of $3,000 plus interest,
55
until a final balloon payment which is due on February 2008. There is no penalty for
prepayment of the mortgage. As of March 2, 2007, the outstanding principal amount of the mortgage
was $517,000.
On May 3, 2005, we acquired Maximum Performance Group, Inc (MPG). MPG currently leases a
3,100 square foot office in San Diego, California and a 2,800 square foot office in New York City.
The San Diego lease expired during 2005 and is currently operating on a month to month basis with
a 90 day termination notice requirement. The New York office lease has a term of five years and
will expire in September 2010.
On June 29, 2006, we acquired Parke P.A.N.D.A. Corporation (now known as Parke Industries,
LLC) (Parke). As part of the acquisition we assumed Parkes lease of a 5,000 square foot office
in Glendora, California. The lease which expires on December 31, 2009 provides for monthly rent of
$3,500, increasing 3% on the first of each year beginning on January 1, 2007. The building is
owned by a company controlled by the former stockholder of Parke, Daniel Parke, who is currently
Lime Energys President, Chief Operating Officer and a Director.
On September 26, 2006, we acquired Kapadia Consulting, Inc. (now known as Kapadia Energy
Services, Inc.), effective September 27, 2006. Kapadia leases a 2,000 square foot office in
Peekskill, NY and a 918 square foot office in Ventura, California. The New York lease expired in
2000 and is operating on a month to month basis. The California lease expires on October 31, 2007.
We believe that the space and location of our current facilities in combination with the
current and planned outsourcing of our manufacturing will be sufficient to reach a level of
production projected for the current year.
On September 26, 2006, we acquired Kapadia Consulting, Inc. (now known as Kapadia Energy
Services, Inc.), effective September 27, 2006. Kapadia leases a 2,000 square foot office in
Peekskill, NY and a 918 square foot office in Ventura, California. The New York lease expired in
2000 and is operating on a month to month basis. The California lease expires on October 31, 2007.
On June 1, 2007, we established Texas Energy Products, Inc. to acquire certain assets and
assume certain liabilities of George Bradley Boyett dba Texas Energy Products. Texas Energy leases
approximately 2,000 square feet of office space in Austin, Texas. The lease for this space expires
on June 30, 2008.
Effective August 1, 2007, we acquired certain assets and assumed certain liabilities of
Preferred Lighting Inc. Preferred Lighting leases approximately 1,300 square feet of space in
Redmond, Washington. This lease expires on December 31, 2009.
We believe that the space and location of our current facilities in combination with the
current and planned outsourcing of our manufacturing will be sufficient to reach a level of
production projected for the current year. See Manufacturing under Description of Business.
56
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Set forth below is a description of our transactions with the Selling Stockholders during the
past three (3) years. All share quantities and exercise prices in the following discussion have
been adjusted to reflect the 1 for 15 reverse split of our common stock, effective January 23,
2007.
On May 26, 2004, Mr. Valentine was awarded options to purchase 5,000 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $26.10 per share,
vested on January 1, 2005, and expire on the earlier of May 26, 2014, or six months following the
date that Mr. Valentine is no longer one of our directors.
On March 19, 2004, in a private placement pursuant to Regulation D under the Securities Act of
1933, as amended (the 1933 Act), we entered into a securities purchase agreement with Security
Equity Fund, SBL Fund V, Security Mid Cap Fund, and SBL Fund J, whereby we issued to such
purchasers, in exchange for $11,000,000 in gross proceeds, a package of securities that included
333,333 shares of our common stock and five year warrants to purchase 116,667 additional shares of
our common stock at $36.30 per share. The warrants contain antidilution provisions that adjust
the exercise price if we issue shares of our common stock at a price below the lower of the
exercise price or the market price at the time. A breakdown of the securities sold is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
|
|
|
Common |
|
Stock |
|
Purchase |
Investor |
|
Stock |
|
Warrants |
|
Price ($) |
|
Security Equity Fund, Mid Cap Value Series |
|
|
84,333 |
|
|
|
29,517 |
|
|
|
2,783,000 |
|
SBL Fund Series V |
|
|
66,667 |
|
|
|
23,333 |
|
|
|
2,200,000 |
|
Security Mid Cap Growth Fund |
|
|
59,333 |
|
|
|
20,767 |
|
|
|
1,958,000 |
|
SBL Fund Series J |
|
|
123,000 |
|
|
|
43,050 |
|
|
|
4,059,000 |
|
|
Total |
|
|
333,333 |
|
|
|
116,667 |
|
|
|
11,000,000 |
|
Also on March 19, 2004, we entered into a Redemption and Exchange Agreement with the
holders of our outstanding Series A Convertible Preferred Stock, Series C Convertible Preferred
Stock and Series D Convertible Preferred Stock (collectively, the Old Preferred Stock) under
which we agreed to redeem 35,897 shares of Old Preferred Stock at a price of $195 per share (the
Redemption) and to exchange shares of its newly authorized Series E Convertible Preferred Stock
(the Series E Preferred) for all remaining outstanding shares of Old Preferred Stock (the
Exchange) on a 1 for 10 basis (one share of Series E Preferred exchanged for 10 shares of Old
Preferred Stock). We used $7 million of the proceeds from the issuance of securities to Security
Equity Fund, SBL Fund V, Security Mid Cap Fund, and SBL Fund J to accomplish the Redemption.
Under the Redemption and Exchange transaction, on March 22, 2004 we redeemed 35,897 shares of
our outstanding Old Preferred Stock (which were convertible into 358,975 shares of common stock) at
a price equivalent to $19.50 per common share, and exchanged 210,451 shares of the new Series E
Preferred for the remaining 2,104,509 outstanding shares of the Old Preferred Stock. Following
closing of the Redemption and Exchange, no shares of Series A Preferred, Series C Preferred or
Series D Preferred remained outstanding. Outstanding warrants to acquire shares of Series D
Preferred held by David Asplund, Cinergy Ventures II, LLC, John Thomas Hurvis Revocable Trust,
Richard Kiphart and SF Capital Partners Ltd. were exchanged for warrants to purchase shares of
Series E Preferred on a 1 for 10 basis (each warrant to purchase 10 shares of Series D Preferred
was exchanged for a warrant to purchase 1 shares of Series E Preferred). Except for the exercises
described below, all such Series E Preferred Warrants expired on December 31, 2004 unexercised.
Each share of the Series E Preferred was convertible into 6.67 shares of Common Stock and had
a liquidation preference of $200 per share. The Series E Preferred carried a dividend rate of 6%
per annum, which was payable, at our option, in either cash or in additional shares of Series E
Preferred. Dividends were payable at the end of each calendar quarter. No dividends on the Series
E Preferred were ever paid in cash; all dividends were paid by issuing additional shares of Series
E Preferred and are described below.
57
A breakdown of the Redemption and Exchange with respect to the Selling Stockholders is as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred |
|
|
|
|
|
Preferred |
|
|
|
|
|
|
Shares |
|
|
|
|
|
Shares |
|
Investor |
|
Series E |
|
|
Exchanged |
|
Series E |
|
Redeemed |
|
Proceeds from |
|
Warrants |
Investor |
|
(1) |
|
Shares Issued |
|
(1) |
|
Redemption ($) |
|
Issued |
|
David Asplund |
|
|
29,344 |
|
|
|
2,934 |
|
|
|
0 |
|
|
|
0 |
|
|
|
94 |
|
Augustine Fund LP |
|
|
145,397 |
|
|
|
14,540 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
Cinergy Ventures II |
|
|
300,853 |
|
|
|
30,085 |
|
|
|
168,663 |
|
|
|
2,192,619 |
|
|
|
1500 |
|
John Donohue |
|
|
25,090 |
|
|
|
2,509 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
John Thomas Hurvis
Revocable Trust |
|
|
28,414 |
|
|
|
2,841 |
|
|
|
15,930 |
|
|
|
207,090 |
|
|
|
94 |
|
Richard Kiphart |
|
|
709,438 |
|
|
|
70,944 |
|
|
|
0 |
|
|
|
0 |
|
|
|
1313 |
|
Leaf Mountain Co. |
|
|
207,463 |
|
|
|
20,746 |
|
|
|
116,307 |
|
|
|
1,511,991 |
|
|
|
0 |
|
SF Capital Partners Ltd. |
|
|
234,758 |
|
|
|
23,476 |
|
|
|
0 |
|
|
|
0 |
|
|
|
750 |
|
|
|
|
(1) |
|
Includes shares paid in satisfaction of dividends accrued through March 19, 2004 |
On June 10, 2004, Mr. Asplund was granted options to purchase 1,667 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $27.75 per share and
expire on the earlier of June 10, 2014, or six months following the date that Mr. Asplund is no
longer a director of the Company.
On June 16, 2004, Mr. David Asplund exercised his warrant to purchase 94 shares of Series E
Preferred (convertible into 627 shares of common stock) at a cost of $100 per Series E Preferred
share.
On December 1, 2004, the John Thomas Hurvis Revocable Trust exercised its warrant to purchase
94 shares of Series E Preferred (convertible into 627 shares of common stock) at a cost of $100 per
Series E Preferred share.
On December 27, 2004, John Donohue exercised a warrant to purchase 1,500 shares of Series E
Preferred (convertible into 10,000 shares of common stock) at a cost of $100 per Series E Preferred
share. Mr. Donohue purchased this warrant from Cinergy Ventures II, LLC in a private transaction
which we was not a party to.
On December 28, 2004, Richard Kiphart exercised his warrant to purchase 1,312 shares of Series
E Preferred (convertible into 8,747 shares of common stock) at a cost of $100 per Series E
Preferred share.
On January 25, 2006, we issued a warrant to Bristol Capital Ltd. to purchase 10,000 shares of
our common stock as partial payment for services. The warrant has an exercise price of $15.45 per
share and expires on January 25, 2008.
On February 10, 2005, we issued a five year warrant to purchase 2,000 shares of common stock
at $15.45 to Delano Group Securities, LLC (Delano), a company owned by Mr. David Asplund, one of
our directors at that time (and, since January 23, 2006, our CEO) pursuant to an agreement to
provide investment banking services.
On April 28, 2005, in a private placement pursuant to Regulation D under the 1933 Act, we
issued to five institutional investors, which are not Selling Stockholders, and the John Thomas
Hurvis Revocable Trust, a Selling Stockholder, for an aggregate gross purchase price of $5,625,000,
416,667 shares of our common stock and 42 month warrants to purchase 208,333 additional shares of
our common stock at $15.75 per share. Delano and Mr. David Valentine acted as advisors to the
Company with respect to this transaction. We paid Delano $16,250 and 3,333 shares of common stock
and we paid Mr. Valentine 3,333 shares of common stock for their services. The shares issued to
Delano and Mr. Valentine were issued pursuant to our 2001 Incentive Stock Plan. John Thomas Hurvis
Revocable Trust acquired the following securities for an aggregate purchase price of $125,000 in
such transaction:
58
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
|
|
|
Common |
|
Stock |
|
Purchase |
Investor |
|
Stock |
|
Warrants |
|
Price ($) |
|
John Thomas Hurvis Revocable Trust |
|
|
9,259 |
|
|
|
4,630 |
|
|
|
125,000 |
|
On May 3, 2005, pursuant to an Agreement and Plan of Merger dated as of April 29, 2005,
by and among the Company, MPG Acquisition Corporation, our wholly owned subsidiary (Merger
Subsidiary), and Maximum Performance Group, Inc. (MPG), we acquired MPG pursuant to the merger
of MPG with and into Merger Subsidiary, with Merger Subsidiary continuing as the surviving
corporation under the name Maximum Performance Group, Inc. Stockholders of MPG receiving
consideration in the transaction included two Selling Stockholders. The merger consideration,
after post closing adjustments, consisted of $1,632,079 in cash, 166,149 shares of our common stock
and approximately 166,149 additional shares of our common stock which have been placed in escrow.
The cash portion of the consideration was funded with proceeds from a private placement of our
common stock completed on April 28, 2005, described under the preceding paragraph. Under the terms
of the Merger Agreement, if MPGs revenues during the two years following the merger exceed an
aggregate of $5,500,000, then the escrow shares will be released to the former stockholders of MPG
at the rate of 13.467 shares for every $1,000 of revenue in excess of such amount. As of March 31,
2007, no shares have been released from such escrow. The distribution of stock received by Selling
Stockholders as part of the merger consideration was as follows:
|
|
|
|
|
|
|
|
|
|
|
Common |
|
Escrow |
|
|
Stock |
|
Shares |
|
Cinergy Ventures, LLC |
|
|
52,706 |
|
|
|
63,621 |
|
Daniel Parke |
|
|
21,082 |
|
|
|
15,125 |
|
Delano acted our advisor with respect to the transaction. We paid Delano $82,176 and
8,366 shares of our common stock at closing and will pay up to 8,366 additional shares of our
common stock to Delano, as the escrow shares held in escrow are released if they are earned as
described above. The shares issued to Delano were issued pursuant to our 2001 Incentive Stock
Plan.
On April 28, 2005, we issued a five year warrant to Laurus Master Fund, Ltd. to purchase
26,667 shares of our common stock at an exercise price of $15.00 per share. Such warrant was
issued in exchange for Laurus consent to our entering into the private placement and the related
MPG acquisition transactions that closed on April 28, 2005 and May 3, 2005, respectively, and are
described above, as well as Laurus waiving its right to adjust the conversion price on its
convertible term note and convertible revolving note then outstanding.
On May 26, 2005, Mr. Valentine was awarded options to purchase 1,667 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $15.00 per share,
vested on January 1, 2006, and expire on the earlier of May 26, 2015, or six months following the
date that Mr. Valentine is no longer a director of the Company.
On June 10, 2005, Mr. Asplund was granted options to purchase 1,667 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $15.00 per share
expire on the earlier of June 10, 2015, or six months following the date that Mr. Asplund is no
longer a director of the Company.
On October 5, 2005, Mr. Parke was awarded options to purchase 5,000 shares of our stock
pursuant to the Directors Option plan. These options have an exercise price of $15.00 per share,
vested on April 5, 2006 and expire on the earlier of October 5, 2015, or six months following the
date that Mr. Parke is no longer a director of the Company.
On November 22, 2005, we entered into a securities purchase agreement with Laurus Master Fund,
Ltd. under which we issued to Laurus, for an aggregate gross purchase price of $5,000,000, a $5
million convertible term note and a seven year warrant to purchase 133,333 shares of our common
stock at an exercise price of $17.40 per share. The convertible term note was repaid in full on
June 29, 2006. See Recent Events The PIPE Transaction, Series E Conversion and Laurus
Repayment. Also see the following paragraphs.
59
During January 2006, we entered into a consulting agreement with Parke P.A.N.D.A. Corporation
to provide sales and marketing consulting services. Parke P.A.N.D.A. is a company which at the
time was beneficially owned by Daniel Parke, one of our directors. Pursuant to the consulting
agreement we agreed to pay Parke P.A.N.D.A. $10,000 per month and to reimburse it for any expenses
incurred as a result of its work. We paid Parke P.A.N.D.A. a total of $61,155 during the six
months ended June 30, 2006. This agreement was terminated in May 2006.
In January 2006, we retained Corporate Resource Development, a company owned by William Carey,
one of our directors, to provide sales training and sales and marketing consulting services to Lime
Energy. We paid Corporate Resource Development a total of $62,500 for these services.
Effective January 23, 2006, we entered into an employment agreement with Mr. Asplund to serve
as our Chief Executive Officer for three years, ending on January 22, 2009. The contract provides
for a base annual salary of $285,000 and eligibility for up to $65,000 of cash bonus compensation
each year, based on our performance. For 2006, the bonus was based on consolidated gross revenue,
with $15,000 payable if gross revenue exceeded $10 million, an additional $15,000 payable if gross
revenue exceeds $12.5 million, an additional $15,000 payable if gross revenue exceeds $16 million
and an additional $20,000 payable if gross revenue exceeds $18 million. The bonus formula for the
second and third contract years has not been determined but the agreement provides for it to be
based on consolidated net income of the Company for such years.
In addition to base salary and bonus, we granted to Mr. Asplund tenyear options to purchase
up to 100,000 shares for each of the three contract years, with such options vesting in arrears on
the following January 22nd. The option price for the first 100,000 shares is $9.30, which was the
30 day average closing price of our common stock, determined on Friday, January 20, 2006, which was
the last business day prior to the day Mr. Asplund began serving as CEO. Those options became
vested on January 23, 2007. The option price for each of the subsequent grant is $0.96 per share,
which was the closing price for our stock on January 22, 2007. 33,333 of such options were granted
pursuant to our 2001 Incentive Stock Plan. The remaining 266,667 options were granted subject to
obtaining shareholder approval to an amendment to our Incentive Stock Plan at the 2006 annual
meeting of shareholders to increase the number of shares available under the Plan by at least
266,667. This approval was obtained at the annual meeting of stockholders held on June 7, 2006 and
such options are now subject to the terms of our Incentive Stock Plan. Vesting of any unvested
options will accelerate upon termination by the Company of Mr. Asplunds employment under the
employment agreement (if such termination is for reasons other than Due Cause (as defined in the
employment agreement). Vesting will also accelerate upon termination due to Mr. Asplunds death
and upon a change of control. In the event of termination for Due Cause, all unexercised options
terminate immediately, whether vested or unvested. In the event of termination due to Mr.
Asplunds disability or due to his resignation (other than resignation pursuant to our breach),
unvested options will terminate immediately, and vested options will be exercisable only for 180
days (if termination is due to disability) or for 90 days (if termination is due to Mr. Asplunds
resignation). In the event of termination for the convenience of the Company, or by Mr. Asplund
because of a breach by the Company, then all options which are scheduled to vest within one year
shall vest immediately and be exercisable for one year thereafter. These options will otherwise
expire on January 22, 2016.
Change of control is defined as a merger or consolidation of the Company resulting in an
unrelated entity acquiring the power to elect a majority of our Board of Directors, or a sale of
substantially all of our assets to an entity that is not then controlled by or affiliated with the
Company. In the event that a change of control occurs and Mr. Asplunds employment period is
terminated by the Company, any unvested options will vest and be exercisable for one year. All
stock options which are not exercised within one year following such termination shall thereupon
expire and no longer be exercisable.
On January 24, 2006, Mr. Kiphart was awarded options to purchase 5,000 shares of our stock
pursuant to the Directors Option plan. These options have an exercise price of $15.00 per share,
vested on January 1, 2007, and expire on the earlier of January 24, 2016, or six months following
the date that Mr. Kiphart is no longer a director of the Company.
60
On June 29, 2006, we entered into the PIPE Transaction and Series E Conversion with 18 persons
and entities, and issued to 17 investors, including 10 existing holders of our Series E Preferred,
17,875,000 shares of our common stock for an aggregate purchase price of $17,875,000. The other
person who was a party to such securities purchase agreement was a holder of Series E Preferred,
who did not purchase any common stock under such agreement. The agreement also provided for the
Series E Conversion, which was consummated on the same day and resulted in 21,648,346 shares of
common stock being issued pursuant to conversion of all outstanding Series E Preferred.
A breakdown of the shares issued in the transaction and the shares issued as a result of the
conversion of the Series E is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Issued |
|
Common |
|
|
|
|
Upon |
|
Shares Issued |
|
Aggregate |
|
|
Conversion |
|
Pursuant to |
|
Price Paid for |
|
|
of Series E |
|
PIPE |
|
PIPE Shares ($) |
|
David R. Asplund |
|
|
354,200 |
|
|
|
1,500,000 |
|
|
$ |
1,500,000 |
|
Augustine Fund, LP |
|
|
1,628,000 |
|
|
|
1,000,000 |
|
|
|
1,000,000 |
|
Christopher W. Capps |
|
|
0 |
|
|
|
25,000 |
|
|
|
25,000 |
|
Cinergy Ventures II, LLC |
|
|
1,902,293 |
|
|
|
1,100,000 |
|
|
|
1,100,000 |
|
John Donohue |
|
|
294,000 |
|
|
|
0 |
|
|
|
0 |
|
Gregory Ekizian |
|
|
0 |
|
|
|
400,000 |
|
|
|
400,000 |
|
Robert Gipson |
|
|
1,913,600 |
|
|
|
450,000 |
|
|
|
450,000 |
|
Thomas Gipson |
|
|
0 |
|
|
|
1,500,000 |
|
|
|
1,500,000 |
|
Julia Gluck |
|
|
0 |
|
|
|
100,000 |
|
|
|
100,000 |
|
John Thomas Hurvis Revocable Trust |
|
|
340,053 |
|
|
|
200,000 |
|
|
|
200,000 |
|
Rebecca Kiphart |
|
|
0 |
|
|
|
200,000 |
|
|
|
200,000 |
|
Richard P. Kiphart |
|
|
8,903,400 |
|
|
|
5,700,000 |
|
|
|
5,700,000 |
|
Leaf Mountain Company, LLC |
|
|
2,015,900 |
|
|
|
1,300,000 |
|
|
|
1,300,000 |
|
Martin Mellish |
|
|
0 |
|
|
|
250,000 |
|
|
|
250,000 |
|
Nikolaos Monoyios |
|
|
1,913,600 |
|
|
|
450,000 |
|
|
|
450,000 |
|
Nettlestone Enterprises Limited |
|
|
0 |
|
|
|
1,500,000 |
|
|
|
1,500,000 |
|
SF Capital Partners |
|
|
2,237,600 |
|
|
|
2,000,000 |
|
|
|
2,000,000 |
|
David Valentine |
|
|
145,700 |
|
|
|
200,000 |
|
|
|
200,000 |
|
|
Total |
|
|
21,648,346 |
|
|
|
17,875,000 |
|
|
$ |
17,875,000 |
|
61
During the period from December 2003 through June 2006 we issued the following additional
shares of preferred stock to Selling Stockholders as payment in kind dividends on outstanding
shares of its Series A, Series C and Series D Convertible Preferred stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends |
|
Dividends |
|
Dividends |
|
Dividends |
|
Common |
|
|
in Series |
|
In Series |
|
in Series |
|
In Series |
|
Share |
Holder |
|
A Shares |
|
C Shares |
|
D Shares |
|
E Shares |
|
Equivalents |
|
David R. Asplund |
|
|
1,814 |
|
|
|
0 |
|
|
|
194 |
|
|
|
514 |
|
|
|
4,765 |
|
Augustine Fund LP |
|
|
397 |
|
|
|
0 |
|
|
|
0 |
|
|
|
2,557 |
|
|
|
17,311 |
|
Cinergy Ventures II, LLC |
|
|
29,018 |
|
|
|
0 |
|
|
|
3,108 |
|
|
|
5,583 |
|
|
|
58,637 |
|
John Donohue |
|
|
90 |
|
|
|
0 |
|
|
|
0 |
|
|
|
431 |
|
|
|
2,933 |
|
Robert L. Gipson |
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
1,635 |
|
|
|
10,900 |
|
John Thomas Hurvis Revocable Trust |
|
|
1,814 |
|
|
|
0 |
|
|
|
194 |
|
|
|
814 |
|
|
|
6,765 |
|
Richard P. Kiphart |
|
|
25,390 |
|
|
|
33,613 |
|
|
|
2,719 |
|
|
|
12,659 |
|
|
|
125,541 |
|
Nikolaos D. Monoyios |
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
1,635 |
|
|
|
10,900 |
|
Leaf Mountain Company |
|
|
68,770 |
|
|
|
0 |
|
|
|
0 |
|
|
|
3,413 |
|
|
|
68,600 |
|
SF Capital Partners Ltd. |
|
|
14,508 |
|
|
|
0 |
|
|
|
1,554 |
|
|
|
3,900 |
|
|
|
36,708 |
|
David W. Valentine |
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
144 |
|
|
|
960 |
|
|
|
|
Note: |
|
All of the outstanding Series A, Series C and Series D Convertible
Preferred stock was redeemed for cash or exchanged for shares of Series E
Preferred stock on March 22, 2004, as described above. |
Also on June 29, 2006, Laurus Master Fund, Ltd. elected to convert its convertible
revolving note, along with accrued interest thereon, into 950,865 shares of our common stock. In
addition, in consideration of the issuance by the Company to Laurus of 392,596 shares of common
stock, Laurus agreed to (a) waive the payment of liquidated damages due as a result of our failure
to register shares of common stock into which the November 2005 $5 million convertible term note
was convertible, and (b) terminate the requirement that we pay it a portion of the cash flows
generated by our virtual Negawatt power plan projects for a period of 5 years following the
repayment of the $5 million convertible term note, as required by the provisions of that note.
In addition, on June 29, 2006, we acquired Parke P.A.N.D.A. Corporation (Parke), for
consideration consisting of $2.72 million in cash and $5 million of our common stock (5,000,000
shares valued at $1.00 per share). The acquisition was effective as of June 30, 2006. As part of
the acquisition, we assumed debt of approximately $446,000, $400,000 of which we repaid upon
closing. Parke was owned by The Parke Family Trust, whose trustees are Daniel Parke, one of our
directors, and his wife Michelle Parke.
On June 30, 2006, Parke Industries, LLC entered into an Employment Agreement with Daniel
Parke providing, among other things, that Mr. Parke would be employed as President of Parke
Industries, LLC for two years at an annual salary of $250,000 per year and for the Company to grant
to Mr. Parke tenyear options to purchase up to 46,667 shares of common stock at a price per share
of $1.10 (the closing market price of Lime Energys common stock on July 3, 2006, the business day
immediately following the date of such Employment Agreement). Such options vest in three
installments, with onethird vesting immediately, one third on June 30, 2007 and onethird on
June 30, 2008. In the event that Mr. Parkes employment terminates for Due Cause (as defined
therein), all unexercised options terminate immediately, whether or not vested. In the event of
termination of such employment by reason of death or disability, any unvested options terminate and
any vested options must be exercised within 90 days. In the event of termination of such
employment for the convenience of the employer, or by Mr. Parke because of a breach by the
employer, then all options which are scheduled to vest within one year shall vest immediately and
be exercisable for one year thereafter. Change of control is defined as a merger or consolidation
of the Company resulting in an unrelated entity acquiring the power to elect a majority of our
Board of Directors, or a sale of substantially all of our assets to an entity that is not then
controlled by or affiliated with the Company. In the event that a change of control occurs and Mr.
Parkes employment period is terminated, any unvested options will vest and be exercisable for one
year. All stock options which are not exercised within one year following such termination shall
thereupon expire and no longer be exercisable. These options will otherwise expire on June 30,
2016.
62
As part of the acquisition of Parke P.A.N.D.A. Corporation, we assumed its existing office
lease for space in a building owned by Daniel Parke in Glendora California. We believe that the
terms of the lease are fair as they are comparable to the terms of leases with other third party
tenants located in the building.
On July 11, 2006, Mr. Asplund was granted additional options to purchase up to 4.3 million
shares, with his right to exercise such options vesting with respect to 1.5 million options on
December 31, 2006; 1.4 million options on December 31, 2007 and 1.4 million options on December 31,
2008. The exercise price on the 1.5 million options vesting on December 31, 2006 is $1.02 per
share. The exercise price on the 1.4 million options vesting on December 31, 2007 and December 3,
2008 is equal to $0.96 per share. Vesting of the options will accelerate upon termination for
reasons other than due cause (as defined in the option agreement), death, disability or resignation
and upon a change of control. These options will expire on the earlier of January 22, 2016, or six
months following the date that Mr. Asplund is no longer an employee of the Company, unless his
termination was for due cause (as defined in the option agreement) in which case they will expire
immediately, or due to a change of control (as defined in the option agreement) in which case they
will expire twelve months following the change of control. These options contain a cashless
exercise provision permitting Mr. Asplund to pay the purchase price for any shares acquired by
exercising the option by surrendering to the Company a number of shares of common stock having an
aggregate market value equal to the purchase price.
On July 11, 2006, Mr. Kiphart was awarded options to purchase 100,000 shares of our stock
pursuant to the Directors Option plan. These options have an exercise price of $1.02 per share,
vested on January 11, 2007, and expire on the earlier of July 11, 2016, or six months following the
date that Mr. Kiphart is no longer a director of the Company.
On July 11, 2006, Mr. Parke was granted additional options to purchase up to 653,333 shares of
the Company common stock at $1.02 per share. Mr. Parkes right to exercise these options vest with
respect to 217,765 options on December 31, 2006; 217,784 options on each of December 31, 2007 and
December 31, 2008, in each case assuming that Mr. Parke continues to be employed by the Company on
such date. Vesting of the options will accelerate upon termination for reasons other than due
cause (as defined in his option agreement), death, disability or resignation and upon a change of
control. These options will expire on the earlier of July 11, 2016, or six months following the
date that Mr. Parke is no longer an employee of the Company, unless his termination is for due
cause (as defined in the option agreement) in which case they will expire immediately, or due to a
change of control (as defined in the option) in which case they will expire twelve months following
the change of control. These options contain a cashless exercise provision permitting Mr. Parke
to pay the purchase price for any shares acquired by exercising the option by surrendering to the
Company a number of shares of common stock having an aggregate market value equal to the purchase
price.
On July 11, 2006, Mr. Valentine was awarded options to purchase 100,000 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $1.02 per share,
vested on January 11, 2007, and expire on the earlier of July 11, 2016, or six months following the
date that Mr. Valentine is no longer a director of the Company.
On July 25, 2006, we issued a warrant to Bristol Capital Ltd. to purchase 60,000 shares of its
common stock as partial payment for services. The warrant has an exercise price of $1.00 per share
and expires on July 25, 2009.
On January 2, 2007, Mr. Kiphart was awarded options to purchase 50,000 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $0.90 per share,
will vest on January 1, 2008, and expire on the earlier of January 2, 2017, or six months following
the date that Mr. Kiphart is no longer a director of the Company.
63
On January 2, 2007, Mr. Valentine was awarded options to purchase 50,000 shares of our stock
pursuant to the Directors Option plan. The options have an exercise price of $0.90 per share,
will vest on January 1, 2008, and expire on the earlier of January 2, 2017, or six months following
the date that Mr. Valentine is no longer a director of the Company.
On January 23, 2007, we issued a warrant to Bristol Capital Ltd. to purchase 120,000 shares of
its common stock as partial payment for services. The warrant has an exercise price of $1.00 per
share and expires on December 31, 2009.
On January 23, 2007, we filed an amendment to our certificate of incorporation to effect the 1
for 15 reverse split of our common stock. See Recent Events Reverse Stock Split and Recent
Events Amendment to Certificate of Incorporation. Because the reverse split became effective
January 23, 2007 and not on June 15, 2006 as we had believed, the shares of common stock that were
issued in the June 29 Transactions were reduced on a 1 for 15 basis when the amendment was filed.
Since both we and the other parties to those transactions intended that the shares we issued were
postreverse split shares, following the filing of the amendment and the reverse split becoming
effective, we offered to each of the recipients of shares in the June 29 Transactions, which
include certain Selling Stockholders under this Prospectus, additional shares of common stock so
that each would have the specific number of postreverse split shares of which were intended in
those transactions, in satisfaction of any claims such recipients might have in respect of such
matter. All of them accepted such offer. Such catchup shares were issued on or about February
1, 2007. Please see the discussion of the Reverse Stock Split (including the table therein) and of
the Amendment to Certificate of Incorporation under Recent Events on pages 3 and 7 for additional
information regarding these issuances. Among those receiving catchup shares were Mr. Kiphart,
Mr. Asplund, Mr. Parke and Mr. Valentine. They received the following shares of stock on or about
February 1, 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number Of |
|
|
|
|
No. Of Shares |
|
Shares After |
|
|
|
|
Actually |
|
The Amendment |
|
Number Of |
|
|
Acquired After |
|
and Reverse |
|
Catch Up |
Stockholder |
|
June 15, 2006 |
|
Split |
|
Shares Issued |
|
David R. Asplund |
|
|
1,854,200 |
|
|
|
123,613 |
|
|
|
1,730,587 |
|
Richard P. Kiphart |
|
|
14,603,400 |
|
|
|
973,560 |
|
|
|
13,629,840 |
|
David W. Valentine |
|
|
345,700 |
|
|
|
23,047 |
|
|
|
322,653 |
|
The Parke Family Trust |
|
|
5,000,000 |
|
|
|
333,333 |
|
|
|
4,666,667 |
|
On January 26, 2007, we again retained Corporate Resource Development to provide
additional sales and marketing consulting services, for which we agreed to pay it $17,500 per month
for up to 3 months. In January 2007, we also entered into an agreement with Mr. Carey to provide
us with sales and marketing leads and introductions. In exchange for these services we agreed to
pay Mr. Carey a commission of 1.5% on any sale that closes as a result of his work and granted him
a threeyear warrant to purchase 150,000 shares of our stock at $1.08 per share.
A provision of the June 29, 2006 PIPE Transaction required us to file and have declared
effective by November 3, 2006, a registration statement registering the shares issued as part of
the PIPE Transaction. To the extent that we failed to have the registration statement declared
effective by this date, we were required to pay penalties to the PIPE investors at the rate of 1%
per month of the purchase price paid by the investors. Largely as a result of the questions
regarding the need to amend our Certificate of Incorporation to effect the June 15, 2006 reverse
split of our stock, we were not able to have the registration statement declared effective before
the November 3, 2006 deadline. All of the investors in the PIPE Transaction agreed to accept
shares of our common stock, valued at $1.00 per share, as payment of this registration penalty. As
a result, on January 24, 2007, February 2, 2007 and February 15, 2007 we issued a total of 613,708
shares of common stock to these PIPE investors in satisfaction of the penalties owed through
February 14, 2007, the date the registration statement was declared effective. Among those
receiving shares of stock in satisfaction of the registration penalty were Mr. Asplund, Mr. Kiphart
and Mr. Valentine. They received the following shares of stock:
64
|
|
|
|
|
|
|
Total Shares |
Stockholder |
|
Received |
|
David R. Asplund |
|
|
51,500 |
|
Richard P. Kiphart |
|
|
195,700 |
|
David W. Valentine |
|
|
6,867 |
|
Due to potential conflicts of interest resulting from (i) the beneficial ownership of
Parke P.A.N.D.A. Corporation by Daniel Parke, and (ii) certain members of our Board (Messrs.
Kiphart, Asplund and Valentine) beneficially owning shares of Series E Preferred Stock and agreeing
to purchase shares of common stock in the PIPE Transaction and concurrently convert their shares of
Series E Preferred Stock into shares of our common stock, our board established a special committee
comprised solely of disinterested, independent directors to review, negotiate and approve the
acquisition of Parke P.A.N.D.A. and the PIPE Transaction. The special committee retained
Rittenhouse Capital Partners, LLC (Rittenhouse) to act as its financial advisor, and legal
counsel to assist it in its review of these transactions. Rittenhouse reviewed the Parke
acquisition and delivered to the special committee an opinion to the effect that the purchase price
paid for Parke was fair to us from a financial point of view. It also provided information, advice
and analysis to assist the committee in its review of the structure and pricing of the PIPE
Transaction. Legal counsel assisted the special committee in its review of these transactions and
advised the committee on its duties and responsibilities. After considering all of the information
it had gathered, the committee concluded that these transactions were in the best interests of the
Company and its stockholders, and approved the Parke acquisition and the PIPE Transaction.
During the June 2007 the following selling stockholders exercised certain warrants that were
scheduled to expire on June 27, 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares |
|
|
|
|
|
|
|
|
|
|
Common |
|
|
|
Issuable |
|
|
|
|
|
|
Cash |
|
|
Shares |
|
|
|
Pursuant |
|
|
Exercise |
|
|
Proceeds |
|
|
Received |
|
|
|
to |
|
|
Price Per |
|
|
to |
|
|
by |
|
Holder |
|
Warrants |
|
|
Share |
|
|
Company |
|
|
Holder |
|
Richard Kiphart |
|
|
4,922 |
|
|
$ |
0.90 |
|
|
$ |
4,429.80 |
|
|
|
4922 |
|
David Asplund |
|
|
352 |
|
|
|
0.90 |
|
|
|
316.80 |
|
|
|
352 |
|
Cinergy Ventures II (1) |
|
|
5,625 |
|
|
|
0.90 |
|
|
|
0.00 |
|
|
|
1,639 |
|
SF Capital Partners |
|
|
2,813 |
|
|
|
0.90 |
|
|
|
2,531.70 |
|
|
|
2,813 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
13,712 |
|
|
|
|
|
|
$ |
7,278.30 |
|
|
|
9,726 |
|
|
|
|
(1) |
|
Elected a cashless exercise |
During the second quarter of 2007, we entered into a loan agreement with eight investors,
including Richard Kiphart, our chairman and largest individual stockholder (collectively the
Investors), under which the Investors lent us $5 million in the form of subordinated convertible
term notes (the Term Notes). Mr. Kaphart personally invested $2 million in the Term Notes. The
term loan matures on May 31, 2010, although it may be prepaid at anytime after May 31, 2008 at our
option without penalty, and accrues interest at the rate of 10% per year. Interest is payable
quarterly, 50% in cash and 50% in shares of our common stock valued at the market price of the
common stock on the interest due date. The term notes are convertible at any time at the
Investors election at $1.00 per share and will automatically convert to shares of common stock at
$1.00 per share, if, at any time after May 31, 2008 the closing price of our common stock exceeds
$1.50 per share for 20 days in any consecutive 30day period. The loan is secured by all of our
assets, but is subordinated to all of our current or future senior lenders, including our current
mortgage lender. The loan agreement provides for acceleration upon the occurrence of typical
events of default, including nonpayment, nonperformance, bankruptcy and collateral impairment.
65
Review, Approval or Ratification of Transactions with Related Persons
We do not have a written policy concerning transactions between the us and any director or
executive officer, nominee for director, 5% stockholder or member of the immediate family of any
such person. However, our policy is that such transactions shall be reviewed by our Board of
Directors and found to be fair to the Company prior to entering into any such transaction, except
for (i) executive officers participation in employee benefits which are available to all employees
generally; (ii) transactions involving routine goods or services which are purchased or sold by us
on the same terms as are generally available in arms length transactions with unrelated parties
(however, such transactions are still subject to approval by our authorized representative in
accordance with internal policies and procedures applicable to such transactions with unrelated
third parties); and (iii) compensation decisions with respect to executive officers other than the
CEO, which are made by the Compensation Committee pursuant to recommendations of the CEO, as is
described under Executive Compensation below.
MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
From December 12, 2000 to June 9, 2006, our common stock was listed on the American Stock
Exchange under the trading symbol ELC. From June 12, 2006 through September 21, 2006, our common
stock traded on the OTC Bulletin Board under the trading symbol ELCY. Since September 22, 2006,
our stock has traded on the OTC Bulletin Board under the symbol LMEC.
In June, 2006, we announced a 1 for 15 reverse split of our common stock, effective on June
15, 2006 and since that date, our common stock has been trading on that basis. See Recent
Events Reverse Stock Split for more information about this matter.
The closing price of our common stock on September 12, 2007 was $1.61. The following table
sets forth the quarterly high and low selling prices for our common stock as reported on The
American Stock Exchange and OTC Bulletin Board since January 1, 2004, adjusted for the reverse
split.
|
|
|
|
|
|
|
|
|
|
|
Common Stock |
|
|
High |
|
Low |
Fiscal Year Ended December 31, 2005: |
|
|
|
|
|
|
|
|
Fiscal Quarter Ended March 31, 2005 |
|
$ |
19.50 |
|
|
$ |
12.90 |
|
Fiscal Quarter Ended June 30, 2005 |
|
$ |
16.05 |
|
|
$ |
12.15 |
|
Fiscal Quarter Ended September 30, 2005 |
|
$ |
18.60 |
|
|
$ |
10.05 |
|
Fiscal Quarter Ended December 31, 2005 |
|
$ |
13.65 |
|
|
$ |
7.50 |
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended December 31, 2006: |
|
|
|
|
|
|
|
|
Fiscal Quarter Ended March 31, 2006 |
|
$ |
16.80 |
|
|
$ |
8.40 |
|
Fiscal Quarter Ended June 30, 2006 |
|
$ |
10.20 |
|
|
$ |
0.70 |
|
Fiscal Quarter Ended September 30, 2006 |
|
$ |
1.40 |
|
|
$ |
0.75 |
|
Fiscal Quarter Ended December 31, 2006 |
|
$ |
1.29 |
|
|
$ |
0.76 |
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended December 31, 2007: |
|
|
|
|
|
|
|
|
Fiscal Quarter Ended March 31, 2007 |
|
$ |
1.10 |
|
|
$ |
0.90 |
|
Fiscal Quarter Ended June 30, 2007 |
|
$ |
2.15 |
|
|
$ |
0.83 |
|
July 1, 2007 Through September 12, 2007 |
|
$ |
2.03 |
|
|
$ |
1.35 |
|
66
Holders
As of September 13, 2007 we had approximately 5,400 holders of record of our common stock
and 53,767,612 shares of common stock outstanding.
Dividends
No dividends were paid during the sixmonth period ended June 30, 2007.
We have never declared or paid any cash dividends on our common stock and we do not anticipate
paying any cash dividends in the foreseeable future. See Managements Discussion and Analysis and
Results of Operations Liquidity and Capital Resources.
67
EXECUTIVE COMPENSATION
Overview of Executive Compensation Program
We have not had a formalized program for determining executive compensation. In fact, three
of the four current executive officers (Messrs. Asplund, Parke and Pisano) receive most of their
compensation under written employment agreements that were negotiated in connection with their
becoming our employees. In each of these instances, the Board of Directors approved the employment
agreement and the terms were negotiated at the time in light of specific circumstances. However,
in general, our executive officers have received compensation consisting of three components, 1) a
cash component, consisting of salary meant to be competitive with salaries such individuals could
obtain from other employers, 2) eligibility for annual cash bonuses based on meeting or exceeding
certain goals established for the year, and 3) stock options intended to reward achievement of
longterm goals and align the interests of our executive officers with those of our stockholders.
In certain cases, we have provided automobile allowances to executives who are expected to use
their cars for Company business. Executive officers participate in group health insurance on the
same basis as other fulltime employees.
Except as noted above with respect to the current employment agreements with Messrs. Asplund,
Parke and Pisano, the Compensation Committee of the Board of Directors makes all compensation
decisions for our executive officers. Generally, compensation decisions for executive officers
other than our chief executive officer (CEO) have been made by the Compensation Committee
pursuant to recommendations made by the CEO. We have not used consultants in connection with
making compensation decisions and do not have any current engagement with any consultant related to
executive or director compensation.
Objectives of Compensation Program
Compensation of our executive officers is intended to reward improved overall financial
performance of the Company and our subsidiaries, and to reward achievement of specified annual
goals and increases in stockholder value over the long term.
|
|
|
Annual salaries for executive officers have been established with the goal of
attracting and retaining qualified individuals for the positions. These salaries have
been determined on a casebycase basis. |
|
|
|
|
Eligibility for annual cash bonus awards has been based on specific performance
goals for the year for the Company and our subsidiaries. The amount of bonus for which
an individual is eligible for any year has been determined on a casebycase basis,
although the annual bonus plan targets have been established for all participants in
any given year. |
|
|
|
|
Stock options awards are intended to reward achievement leading to increases in
our profitability and stockholder value over the longer term. The amounts of awards
have been determined on a casebycase basis. |
In order to reward superior shortterm performance, cash compensation each year has included
eligibility for a cash bonus based on annual goals established by the Compensation Committee,
subject to approval of the Board. During the past five years, however, no cash bonuses have been
paid pursuant to such annual plans, as we have not achieved the annual goals in any fiscal year.
The Board and the Compensation Committee are now in the process of reviewing the annual bonus plan
portion of cash compensation with the goal of making it more effective at achieving such annual
goals.
To motivate executive officers to achieve the longerterm goal of increasing our
profitability and stockholder value, and to reward them for achieving such longterm goals, stock
options have been included as part of the compensation structure for our executive officers. Stock
options also provide an increased opportunity for equity ownership by our executive officers,
thereby further aligning their interest with those of our stockholders. Option grants have been
made on a casebycase basis. A typical stock option grant has
been
68
structured to have a ten year exercise period, to vest over a period of years, with
vesting also depending upon the executive remaining employed by us, and to have an exercise price
equal to the market price on the grant date. In certain cases, options have been granted at an
exercise price higher than the market price. We have not granted options with an exercise price
that is less than the market price on the grant date.
Stock price performance has not been a factor in determining annual compensation because the
price of the common stock is subject to factors which may not reflect our performance and are
outside of our control.
We do not have a formula for allocating between cash and noncash compensation. The number
of stock options awarded to an executive officer has been decided on a casebycase basis taking
into consideration other components of compensation, not pursuant to any specific guidelines or
program. Most of the stock options we have awarded to executive officers have been pursuant to
written employment agreements entered into when the executive joined us, or pursuant to extending
such employment under a new written agreement entered into following termination of the old one.
An exception to this occurred in July 2006, when a number of stock option grants to executives
and other employees were made following consummation of the transactions which closed at the end of
June. Options granted to executive officers in July 2006 are described under Employment
Contracts, Termination of Employment and ChangeinControl Arrangements below.
Accounting and Tax Considerations
Our stock option grant policies have been impacted by the implementation of SFAS No. 123(R),
which we adopted effective on January 1, 2006. Under this accounting pronouncement, we are
required to value unvested stock options granted prior to our adoption of SFAS 123 under the fair
value method and expense those amounts in the income statement over the stock options remaining
vesting period. As a result of adopting SFAS No. 123(R), $4,828,955 of share based compensation
expense was included in the results for 2006.
Current Executive Officers
We currently has four executive officers: David Asplund, our Chief Executive Officer, Jeffrey
Mistarz, Chief Financial Officer (CFO), Daniel Parke, our President and Chief Operating Officer
(Mr. Parke is also president of Parke Industries, LLC, a subsidiary), and Leonard Pisano, our
executive vice president of business development (Mr. Pisano is also president of Maximum
Performance Group, Inc., a subsidiary). For purposes of compensation disclosure for 2006,
information is also included for Anna Baluyot, our former senior vice president who resigned on
November 10, 2006, but was among our five mostly highly compensated employees for the fiscal year
ended December 31, 2006.
69
2006 SUMMARY COMPENSATION TABLE
The following table sets forth the compensation earned, awarded or paid for services rendered
to us for the year ended December 31, 2006 by two individuals who served as our principal executive
officer (PEO), our principal financial officer (PFO), and our three most highly compensated
executive officers, one of whom resigned prior to the end of the fiscal year. These persons are
referred to, collectively, as the named executive officers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
(b) |
|
(c) |
|
(d) |
|
(e) |
|
(f) |
|
(g) |
|
(h) |
|
(i) |
|
(j) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non Equity |
|
Nonqualified |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Plan |
|
Deferred |
|
All Other |
|
|
Name and |
|
|
|
|
|
Salary |
|
Bonus |
|
Stock |
|
Option Awards |
|
Compensation |
|
Compensation |
|
Compensation |
|
|
Principal Position |
|
Year |
|
($) |
|
($) |
|
Awards ($) |
|
($) (1) |
|
($) |
|
Earnings ($) |
|
($) |
|
Total ($) |
|
David R. Asplund |
|
|
2006 |
|
|
|
268,923 |
|
|
|
|
|
|
|
|
|
|
|
2,061,732 |
(2) |
|
|
|
|
|
|
|
|
|
|
20,662 |
(3) |
|
|
2,351,317 |
|
Chief Executive Officer
(PEO) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anna Baluyot (4) |
|
|
2006 |
|
|
|
123,878 |
|
|
|
|
|
|
|
|
|
|
|
9,537 |
|
|
|
|
|
|
|
|
|
|
|
4,525 |
(5) |
|
|
137,940 |
|
Senior Vice President,
Utility Development |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey R. Mistarz |
|
|
2006 |
|
|
|
210,000 |
|
|
|
|
|
|
|
|
|
|
|
402,059 |
|
|
|
|
|
|
|
|
|
|
|
6,518 |
(6) |
|
|
618,577 |
|
Executive Vice
President & Chief
Financial Officer
(PFO) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel W. Parke (7) |
|
|
2006 |
|
|
|
128,892 |
|
|
|
|
|
|
|
|
|
|
|
304,810 |
(8) |
|
|
|
|
|
|
|
|
|
|
50,644 |
(9) |
|
|
484,346 |
|
President, Chief
Operating Officer of
Lime Energy Co. &
President of Parke
Industries, LLC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leonard Pisano |
|
|
2006 |
|
|
|
225,000 |
|
|
|
|
|
|
|
|
|
|
|
594,991 |
|
|
|
|
|
|
|
|
|
|
|
6,399 |
(10) |
|
|
826,390 |
|
Executive Vice
President of Business
Development &
President of Maximum
Performance Group,
Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John P. Mitola (11) |
|
|
2006 |
|
|
|
20,833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
106,964 |
(12) |
|
|
127,797 |
|
Our former Chief
Executive Officer
(former PEO) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Amounts represent the compensation cost recognized during 2006 of stock awards granted in
and prior to 2006 based on the grant date fair value recognized over the requisite service
period in accordance with Statement of Financial Accounting Standards (SFAS) No. 123(R).
The value weightedaverage significant assumptions used to determine the grant date fair
value are as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Significant Assumption |
|
|
|
|
|
|
(value weighted average) |
|
2006 |
|
2005 |
|
2004 |
Riskfree rate |
|
|
5.02 |
% |
|
|
2.27 |
% |
|
|
1.04 |
% |
Dividend yield |
|
|
|
|
|
|
|
|
|
|
|
|
Expected volatility |
|
|
90 |
% |
|
|
65 |
% |
|
|
72 |
% |
Expected life (years) |
|
|
5.6 |
|
|
|
9.1 |
|
|
|
9.1 |
|
|
|
|
(2) |
|
Includes the costs recognized during 2006 of director options awarded to Mr. Asplund prior
to his employment with us totaling $4,636. |
|
(3) |
|
Includes $11,873 for the cost of life and longterm disability insurance, $6,325 of auto
allowance and the $2,464 cost of membership to a business club provided to Mr. Asplund. |
70
|
|
|
(4) |
|
Ms. Baluyot resigned November 10, 2006. |
|
(5) |
|
Includes $4,200 of auto allowance and $325 for the cost of longterm disability insurance
provided Ms. Baluyot. |
|
(6) |
|
Represents the cost of life insurance and longterm disability insurance provided to Mr.
Mistarz. |
|
(7) |
|
Mr. Parke became our President effective June 30, 2006 when we acquired his company, Parke
P.A.N.D.A. Corporation. The compensation reported for Mr. Parke only includes the amounts
paid to him since June 30, 2006. |
|
(8) |
|
Includes the costs recognized during 2006 of director options awarded to Mr. Parke prior to
his employment with us totaling at $11,880. |
|
(9) |
|
During January 2006, we entered into a consulting agreement with Parke P.A.N.D.A. Corporation
to provide sales and marketing consulting services. Parke P.A.N.D.A. is a company which at
the time was beneficially owned by Daniel Parke. Pursuant to the consulting agreement we
agreed to pay Parke P.A.N.D.A. $10,000 per month and to reimburse it for any expenses incurred
as a result of its work. We paid Parke P.A.N.D.A. a total of $50,000 for its services and
reimbursed it $11,155 for expenses during the six months ended June 30, 2006. This agreement
was terminated in May 2006 prior to the acquisition of Parke P.A.N.D.A Corporation on May 29,
2006. Also includes $644 for the cost of longterm disability insurance provided Mr. Parke. |
|
(10) |
|
Includes $6,000 of auto allowance and $399 for the cost of longterm disability insurance
provided Mr. Pisano. |
|
(11) |
|
Mr. Mitola resigned effective January 22, 2006. |
|
(12) |
|
Includes $550 of auto allowance and $754 for the cost of life and longterm disability
insurance provided for Mr. Mitola. Also includes $105,660 paid to Mr. Mitola pursuant to a
consulting agreement under which he agreed to continue to assist us through July 31, 2006. |
Employment Contracts, Termination of Employment and ChangeinControl Arrangements
David R. Asplund
Effective January 23, 2006, we entered into an employment contract with David Asplund for a
threeyear period ending January 22, 2009 to serve as our Chief Executive Officer. The contract
provides for a base annual salary of $285,000 and eligibility for up to $65,000 of cash bonus
compensation each year, based on our performance. For 2006, the bonus was based on consolidated
gross revenue, with $15,000 payable if gross revenue exceeds $10 million, an additional $15,000
payable if gross revenue exceeds $12.5 million, an additional $15,000 payable if gross revenue
exceeds $16 million and an additional $20,000 payable if gross revenue exceeds $18 million. No
bonus was paid for 2006. The bonus formula for the second and third contract years has not been
determined but is to be based on our consolidated net income for such years.
In addition to base salary and bonus, we granted to Mr. Asplund tenyear options to purchase
up to 100,000 shares for each of the three contract years, with such options vesting in arrears on
the following January 22nd. The option price for the first 100,000 shares is $9.30,
which was the 30day average closing price of our common stock, determined on Friday, January 20,
2006, which was the last business day prior to the day Mr. Asplund began serving as CEO. Those
options became vested on January 23, 2007 and are scheduled to expire on January 22, 2016, except
as described below. The option exercise price for the remaining grants was set by our Board on
January 26, 2007 to be $0.96 per share.
Under his employment agreement with us, Mr. Asplund is entitled to certain benefits if his
employment terminates for certain reasons. If Mr. Asplund should die prior to January 23, 2009,
all of his unvested stock options would immediately vest. In addition, all such stock options and
any previously vested stock options, would be exercisable for a period of one year following the
date of death.
71
If Mr. Asplund should become permanently disabled (such that he could not perform his duties
for 180 consecutive days or for 180 days in any period of 12 consecutive months), we would have the
right to terminate his employment, then any stock options which were then already vested would be
exercisable for a period of 180 days following such termination.
If Mr. Asplund should terminate his employment prior to January 22, 2009 for reasons other
than death, disability or uncured default by us under the agreement, then any vested stock options
as of the date of termination shall be exercisable for 90 days following the date of termination.
If we should terminate Mr. Asplunds employment prior to January 22, 2009, for any reason
other than death, disability or Due Cause (as defined in the employment agreement), or if Mr.
Asplund should choose to terminate his employment because we defaulted in our obligations under the
agreement and failed to cure such default after notice, then all unvested stock options which are
scheduled to vest within one year of the date of termination will immediately vest. In addition,
all such stock options and any previously vested stock options, would be exercisable for a period
of one year following the date of termination. Additionally, we will pay Mr. Asplund, as severance
compensation, (i) six months salary at his then current rate, in installments in accordance with
our regular payroll, plus (ii) any bonus earned as of the termination date, in accordance with the
terms of such bonus, plus (iii) any accrued unused vacation (which will be paid on the next regular
payroll date).
Due Cause is defined as any of (i) a material breach by Mr. Asplund of his agreement not
cured within 15 calendar days following written notice thereof, (ii) commission of a felony, or
theft or embezzlement of our property, (iii) actions which result in material injury to our
businesses, properties or reputation, (iv) refusal to perform or substantial neglect of the duties
assigned to Mr. Asplund not remedied within 15 calendar days following written notice thereof, or
(v) any material violation of any statutory or common law duty of loyalty to the Company.
In addition to the foregoing, upon occurrence of a Change of Control all stock options
granted to Mr. Asplund under the agreement shall immediately vest and become exercisable. Change
of Control shall be deemed to have occurred when (i) the Company is merged or consolidated with
another entity which is not then controlled by us and, as a result of such merger or consolidation,
an unrelated entity acquires the ability to elect a majority of our Board of Directors, or (ii)
substantially all of our assets are sold or otherwise transferred to another entity that is not
then controlled by or affiliated with us.
The employment agreement imposes on Mr. Asplund noncompetition, nonsolicitation and
confidentiality obligations, which are not separately compensated. The noncompetition obligation
covers the employment period and extends for two years after termination.
On July 11, 2006, Mr. Asplund was awarded options to purchase up to 4,300,000 shares of our
common stock, of which 1,500,000 are exercisable at $1.02 per share and the remaining 2,800,00 are
exercisable at $0.96 per share. The options vest as follows: 1,500,000 on December 31, 2006,
1,400,000 on December 31, 2007 and 1,400,000 on December 31, 2008, in each case assuming that Mr.
Asplund continues to be employed by us on such date. Vesting of the options will accelerate upon
termination for reasons other than due cause (defined similarly to the definition in his employment
agreement), death, disability or resignation and upon a change of control. These options will
expire on the earlier of July 11, 2016, or six months following the date that Mr. Asplund is no
longer our employee, unless his termination is for due cause (as defined in the option agreement)
in which case they will expire immediately, or due to a change of control (as defined in the option
agreement) in which case they will expire twelve months following the change of control. These
options contain a cashless exercise provision permitting Mr. Asplund to pay the purchase price
for any shares acquired by exercising the option by surrendering to us a number of shares of common
stock having an aggregate market value equal to the purchase price.
72
Leonard Pisano
Effective May 3, 2005, our subsidiary, Maximum Performance Group, Inc. (MPG), entered into
an employment agreement with Leonard Pisano to serve as its president for a threeyear period
ending May 2, 2008. We also appointed him our chief operating officer, a position which he held
until June 30, 2006, when he became our executive vice president of business development. The
employment agreement provides for a base salary of $225,000 plus a monthly auto allowance of $500.
In addition, Mr. Pisano is eligible to receive a $50,000 bonus upon MPGs achievement of two
consecutive quarters of positive EBITDA and to participate in an annual bonus plan with certain
other management employees as determined by our Board of Directors. The employment agreement also
provides that Mr. Pisano shall have board observation rights such that he may attend meetings of
our Board of Directors as an observer during the employment term. The agreement also provides that
Mr. Pisano is to be granted ten year options to purchase 31,667 shares of our common stock at
$15.00 per share. These options vest 5,000 on the effective date of the agreement, 8,889 shares on
each of the remaining anniversaries of the agreement, except on occurrence of a Change of Control
all these options shall immediately vest and become exercisable. Change of Control shall be
deemed to have occurred when (i) the Company is merged or consolidated with another entity which is
not then controlled by Lime and, as a result of such merger or consolidation, at 51% of Limes
common stock is controlled by another entity, or (ii) a majority of our assets are sold or
otherwise transferred to another entity that is not then controlled by or affiliated with us.
These options will otherwise expire on May 3, 2015.
Under his employment agreement, if MPG should terminate his employment prior to May 2, 2008,
for any reason other than death, disability or Due Cause, then MPG will continue to pay Mr.
Pisano his salary and benefits under the agreement until May 3, 2008.
Due Cause is defined in Mr. Pisanos agreement in terms similar to those under David
Asplunds employment agreement, but also includes any violation of MPGs drug and alcohol policy
and any commission of an act of moral turpitude.
The employment agreement imposes on Mr. Pisano noncompetition, nonsolicitation and
confidentiality obligations, which are not separately compensated. The noncompetition obligation
covers the employment period and extends for two years after termination.
On July 11, 2006, Mr. Pisano was awarded options to purchase up to 1,350,000 shares of our
common stock at $1.02 per share. The options vest in three equal amounts, with 450,000 vesting on
December 31, 2006, 450,000 vesting on December 31, 2007 and 450,000 vesting on December 31, 2008,
in each case assuming that Mr. Pisano continues to be employed by us on such date. Vesting of the
options will accelerate upon termination for reasons other than due cause (defined similarly to the
definition in his employment agreement), death, disability or resignation and upon a change of
control. These options will expire on the earlier of July 11, 2016, or six months following the
date that Mr. Pisano is no longer our employee, unless his termination is for due cause (as defined
in the option agreement) in which case they will expire immediately, or due to a change of control
(as defined in the option agreement) in which case they will expire twelve months following the
change of control. These options contain a cashless exercise provision permitting Mr. Pisano to
pay the purchase price for any shares acquired by exercising the option by surrendering to us a
number of shares of common stock having an aggregate market value equal to the purchase price.
Jeffrey R. Mistarz
Effective January 1, 2003, we entered into an employment agreement with Mr. Mistarz for a
threeyear period ending on December 31, 2005. This agreement provided for an annual base salary
of $175,000 through December 31, 2003, which increased to $210,000 effective January 1, 2004. In
addition, Mr. Mistarz was eligible to participate in an annual bonus plan with certain other
management employees. The agreement provided Mr. Mistarz with options to purchase 26,667 shares of
our common stock at a price of $15.00 per share, which options vested 8,889 shares each on December
31, 2003, 2004 and 2005. Except as specifically set forth in the employment agreement, such
options are governed by our 2001 Stock Incentive Plan.
73
On August 15, 2006, we entered into a new employment agreement with Mr. Mistarz to serve as
our executive vice president and chief financial officer for a twoyear period ending August 14,
2008. The employment agreement provides for a base salary of $210,000. In addition, Mr. Mistarz
is eligible to participate in an annual bonus plan with certain other management employees as
determined by the Board of Directors. The employment contract also provides that Mr. Mistarz is to
be granted options to purchase 300,000 shares of our common stock at $1.00 per share. The options
vest in three equal amounts, with one third vesting upon signing of the employment contract, the
second third vesting on the first anniversary of the employment contract and the final third
vesting on the second anniversary of the employment contract.
Under his employment agreement with us, Mr. Mistarz is entitled to certain benefits if his
employment terminates for certain reasons. If Mr. Mistarz should die prior to August 15, 2008, all
of his unvested stock options would immediately vest. In addition, all such stock options and any
previously vested stock options, would be exercisable for a period of one year following the date
of death.
If Mr. Mistarz should become permanently disabled (such that he could not perform his duties
for 180 consecutive days or for 180 days in any period of 12 consecutive months), we would have the
right to terminate his employment, then any stock options which were then already vested would be
exercisable for a period of 90 days following such termination.
If Mr. Mistarz should terminate his employment prior to August 14, 2008 for reasons other than
death, disability or uncured default by the Company under the agreement, then any vested stock
options as of the date of termination shall be exercisable for 90 days following the date of
termination.
If we should terminate Mr. Mistarzs employment prior to August 14, 2008, for any reason other
than death, disability or Due Cause, or if Mr. Mistarz should choose to terminate his employment
because we defaulted in our obligations under the agreement and failed to cure such default after
notice, then all unvested stock options which are scheduled to vest within one year of the date of
termination will immediately vest. In addition, all such stock options and any previously vested
stock options, would be exercisable for a period of one year following the date of termination.
Additionally, we will pay Mr. Mistarz, as severance compensation, (i) six months salary at his
then current rate, in installments in accordance with our regular payroll, plus (ii) any bonus
earned as of the termination date, in accordance with the terms of such bonus, plus (iii) any
accrued unused vacation (which will be paid on the next regular payroll date).
Due Cause is defined in Mr. Mistarzs agreement in terms substantially similar to those
under David Asplunds employment agreement.
In addition to the foregoing, upon occurrence of a Change of Control all stock options
granted to Mr. Mistarz under the agreement shall immediately vest and become exercisable. Change
of Control shall be deemed to have occurred when (i) the Company is merged or consolidated with
another entity which is not then controlled by us and, as a result of such merger or consolidation,
at least 51% of our common stock is controlled by another entity, or (ii) a majority of our assets
are sold or otherwise transferred to another entity that is not then controlled by or affiliated
with us.
The employment agreement also imposes noncompetition, nonsolicitation and confidentiality
obligations on Mr. Mistarz, which are not separately compensated. The noncompetition obligation
covers the employment period and extends for two years after termination.
On July 11, 2006, Mr. Mistarz was awarded options to purchase up to 750,000 shares of our
common stock at $1.02 per share. The options vest in three equal amounts, with 250,000 vesting on
December 31, 2006, 250,000 vesting on December 31, 2007 and 250,000 vesting on December 31, 2008,
in each case assuming that Mr. Mistarz continues to be employed by us on such date. Vesting of the
options will accelerate upon termination for reasons other than due cause (as defined in his option
agreement), death, disability or resignation and upon a change of control. These options will
expire on the earlier of July 11, 2016, or six months following the date that Mr. Mistarz is no
longer our employee, unless his termination is for due cause (as defined in the option agreement)
in which case they will expire immediately, or due to a change of control
74
(as defined in the option agreement) in which case they will expire twelve months following
the change of control. These options contain a cashless exercise provision permitting Mr.
Mistarz to pay the purchase price for any shares acquired by exercising the option by surrendering
to us a number of shares of common stock having an aggregate market value equal to the purchase
price.
Daniel W. Parke
Effective June 30, 2006, Parke Industries, LLC (Parke Industries) entered into an employment
agreement with Daniel Parke to serve as its president for a twoyear period ending June 30, 2008.
We also appointed him our president and chief operating officer. The employment agreement provides
for a base salary of $250,000 plus a monthly auto allowance of $800. In addition, Mr. Parke is
eligible to participate in an annual bonus plan with certain other management employees as
determined by the Board of Directors. The employment contract also provides that Mr. Parke is
granted ten year options to purchase 46,667 shares of our common stock at $1.10 per share. These
options vest 15,555 on the effective date of the agreement, 15,556 shares on the first anniversary
of the agreement and 15,556 on the second anniversary of the agreement. Except as specifically set
forth in the employment agreement, such options are governed by our 2001 Stock Incentive Plan.
These options will otherwise expire on June 30, 2016, except as described below. The employment
agreement also imposes confidentiality obligations on Mr. Parke.
Under his employment agreement, Mr. Parke is entitled to certain benefits if his employment
terminates for certain reasons. If Mr. Parke should die prior to June 30, 2008, all of his
unvested stock options for our common stock would immediately vest. In addition, all such stock
options and any previously vested stock options, would be exercisable for a period of one year
following the date of death.
If Mr. Parke should become permanently disabled (such that he could not perform his duties for
180 consecutive days or for 180 days in any period of 12 consecutive months), Parke Industries
would have the right to terminate his employment, then any stock options for our common stock which
were then already vested would be exercisable for a period of 90 days following such termination.
If Mr. Parke should terminate his employment prior to June 30, 2008 for reasons other than
death, disability or uncured default by us under the agreement, then any vested stock options for
our common stock as of the date of termination shall be exercisable for 90 days following the date
of termination.
If Parke Industries should terminate Mr. Parkes employment prior to June 30, 2008, for any
reason other than death, disability or Due Cause, or if Mr. Parke should choose to terminate his
employment because Parke Industries defaulted in its obligations under the agreement and failed to
cure such default after notice, then all unvested stock options which are scheduled to vest within
one year of the date of termination will immediately vest. In addition, all such stock options and
any previously vested stock options, would be exercisable for a period of one year following the
date of termination. Additionally, Parke Industries will pay Mr. Parke, as severance compensation,
(i) six months salary at his then current rate, in installments in accordance with Parke
Industries regular payroll, plus (ii) any bonus earned as of the termination date, in accordance
with the terms of such bonus, plus (iii) any accrued unused vacation (which will be paid on the
next regular payroll date).
Due Cause is defined in Mr. Parkes agreement in terms substantially similar to those under
David Asplunds employment agreement.
In addition to the foregoing, upon occurrence of a Change of Control all stock options
granted to Mr. Parke by us pursuant to the agreement shall immediately vest and become exercisable.
Change of Control shall be deemed to have occurred when (i) the Company is merged or
consolidated with another entity which is not then controlled by us and, as a result of such merger
or consolidation, at least 51% of our common stock is controlled by another entity, or (ii) a
majority of our assets are sold or otherwise transferred to another entity that is not then
controlled by or affiliated with us.
75
Also effective on June 30, 2006, we, Parke Industries, LLC and Mr. Parke entered into a
noncompetition agreement which imposes on Mr. Parke noncompetition obligations until June 30,
2008. This noncompetition obligation is not separately compensated and was part of the
consideration in the acquisition of Parke P.A.N.D.A. Corporation.
On July 11, 2006, Mr. Parke was awarded options to purchase up to 653,333 shares of our stock
at $1.02 per share. The options vest in three approximately equal amounts, with 217,765 vesting on
December 31, 2006, 217,764 vesting on December 31, 2007 and 217,764 vesting on December 31, 2008,
in each case assuming that Mr. Parke continues to be employed by us on such date. Vesting of the
options will accelerate upon termination for reasons other than due cause (defined similarly to the
definition in his employment agreement), death, disability or resignation and upon a change of
control. These options will expire on the earlier of July 11, 2016, or six months following the
date that Mr. Parke is no longer our employee, unless his termination is for due cause (as defined
in the option agreement) in which case they will expire immediately, or due to a change of control
(as defined in the option agreement) in which case they will expire twelve months following the
change of control. These options contain a cashless exercise provision permitting Mr. Parke to
pay the purchase price for any shares acquired by exercising the option by surrendering to us a
number of shares of common stock having an aggregate market value equal to the purchase price.
John P. Mitola
Effective January 1, 2003, we entered into an employment agreement with John Mitola for a
threeyear period ending on December 31, 2005. The agreement provided for a base salary $250,000
per year, but provided for a discretionary bonus of up to one hundred percent of his annual salary
payable if he met or exceeded certain annual goals as established by the Board of Directors, and a
guaranteed bonus of $250,000 upon our achievement of two consecutive calendar quarters of positive
net income (as reflected in our quarterly reports filed with the Securities and Exchange
Commission). The agreement also provided for a monthly automobile allowance of $550.00 and the
reimbursement of Mr. Mitolas businessrelated expenses.
As part of the employment agreement, we granted to Mr. Mitola an option to purchase 50,000
shares of our common stock at a price per share of $12.60, which was equal to the average closing
price of our common stock as measured over the 30 trading day period prior to the effective date of
the contract. The option granted vested in amounts of 16,667 shares on each December 31st of 2003,
2004 and 2005, except on a change of control in which case all the options would have immediately
vest. Except as specifically set forth in the employment agreement, such options are governed by
our 2001 Stock Incentive Plan.
The employment agreement imposed on Mr. Mitola noncompetition, nonsolicitation and
confidentiality obligations.
Mr. Mitola resigned from the Company in January 2006.
76
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE IN CONTROL
The following table shows potential payments to the named individuals under existing
contracts, agreements, plans or arrangements, whether written or unwritten, for various scenarios
involving a changeincontrol or termination of employment assuming a December 31, 2006
termination date and, where applicable, using the closing price of our common stock of $0.90 per
share on that date.
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Involuntary |
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Involuntary |
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|
|
|
|
Voluntary |
|
Termination - |
|
Termination - |
|
Change in |
|
|
|
|
|
|
Termination |
|
Not For |
|
For Cause |
|
Control |
|
Death |
|
Disability |
Name |
|
(1) |
|
Cause (2) |
|
(3) |
|
(4) |
|
(5) |
|
(5) |
|
David R. Asplund |
|
$ |
0 |
|
|
$ |
142,500 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
$ |
0 |
|
|
Jeffrey R. Mistarz |
|
$ |
4,038 |
|
|
$ |
109,038 |
|
|
$ |
4,038 |
|
|
$ |
0 |
|
|
$ |
4,038 |
|
|
$ |
4,038 |
|
|
Daniel W. Parke |
|
$ |
19,231 |
|
|
$ |
144,231 |
|
|
$ |
19,231 |
|
|
$ |
0 |
|
|
$ |
19,231 |
|
|
$ |
19,231 |
|
|
Leonard Pisano |
|
$ |
12,981 |
|
|
$ |
312,981 |
|
|
$ |
12,981 |
|
|
$ |
0 |
|
|
$ |
12,981 |
|
|
$ |
12,981 |
|
|
|
|
(1) |
|
None of the listed persons are entitled to more than accrued but unpaid salary and
vacation upon a voluntary termination of their employment. |
|
(2) |
|
Under the terms of their employment contracts, Messrs. Asplund, Mistarz and Parke are
entitled to any accrued but unpaid salary and vacation as well as six months severance pay for
an involuntary termination of their employment without cause. Mr. Pisano would be entitled to
any accrued but unpaid salary and vacation and would be paid through May 3, 2008, the end of
period covered under his employment contract. |
|
(3) |
|
None of the listed persons are entitled to more than accrued but unpaid salary and vacation
upon an involuntary termination for cause. |
|
(4) |
|
None of the listed persons would be entitled to any payments upon a change of control unless
they were involuntarily terminated without cause, but upon a change of control the unvested
options held by Messrs. Asplund, Mistarz, Parke and Pisano would immediately vest. None of
the options held by these individuals were in the money as of December 31, 2006. |
|
(5) |
|
None of the listed persons are entitled to more than accrued but unpaid salary and vacation
upon their death or permanent disability, but upon a upon such an event the unvested options
held by Messrs. Asplund, Mistarz, Parke and Pisano would immediately vest. None of the
options held by these individuals were in the money as of December 31, 2006. |
77
GRANTS OF PLANBASED AWARDS TABLE
The following table sets forth certain information with respect to options granted during
or for the fiscal year ended December 31, 2006 to each named executive officer. There are no
estimated future payouts under nonequity or equity incentive plan awards.
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Estimated Future Payouts |
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Estimated Future Payouts |
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Under Non-Equity Incentive |
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Under Equity Incentive Plan |
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Plan Awards |
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Awards |
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(a) |
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(b) |
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(c) |
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(d) |
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(e) |
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(f) |
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(g) |
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(h) |
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(i) |
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(j) |
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(k) |
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(l) |
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All Other |
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All Other |
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Stock |
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Option |
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|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
Awards: |
|
Exercise |
|
Grant Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number |
|
Number of |
|
or Base |
|
Fair Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of Shares |
|
Securities |
|
Price of |
|
of Stock |
|
|
|
|
|
|
Committee |
|
|
Thresh- |
|
|
|
|
|
Maxi- |
|
|
Thresh- |
|
|
|
|
|
Maxi- |
|
|
of Stock |
|
Underlying |
|
Option |
|
and Option |
|
|
|
|
Action |
|
|
old |
|
Target |
|
mum |
|
|
old |
|
Target |
|
mum |
|
|
or Units |
|
Options |
|
Award |
|
Awards |
Name |
|
Grant Date |
|
Date (1) |
|
|
($) |
|
($) |
|
($) |
|
|
(#) |
|
(#) |
|
(#) |
|
|
(#) |
|
(#) |
|
($/sh) |
|
($) (3) |
|
|
|
|
|
|
|
|
|
|
Dave R. Asplund |
|
|
01/23/2006 |
|
|
|
01/22/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,333 |
|
|
$ |
9.30 |
|
|
$ |
184,665 |
|
|
|
|
06/12/2006 |
|
|
|
01/22/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
66,667 |
|
|
$ |
9.30 |
|
|
$ |
65,334 |
|
|
|
|
06/12/2006 |
|
|
|
01/22/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
$ |
0.96 |
|
|
$ |
174,000 |
|
|
|
|
06/12/2006 |
|
|
|
01/22/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
(2 |
) |
|
$ |
176,000 |
|
|
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,500,000 |
|
|
$ |
1.02 |
|
|
$ |
1,155,000 |
|
|
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,800,000 |
|
|
|
(2 |
) |
|
$ |
2,226,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anna Baluyot |
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75,000 |
|
|
$ |
1.02 |
|
|
$ |
56,250 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey R. Mistarz |
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
750,000 |
|
|
$ |
1.02 |
|
|
$ |
585,000 |
|
|
|
|
08/15/2006 |
|
|
|
08/15/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
300,000 |
|
|
$ |
1.00 |
|
|
$ |
211,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John P. Mitola |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel W. Parke |
|
|
07/03/2006 |
|
|
|
06/29/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46,667 |
|
|
$ |
1.10 |
|
|
$ |
37,334 |
|
|
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
653,333 |
|
|
$ |
1.02 |
|
|
$ |
509,600 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leonard Pisano |
|
|
07/11/2006 |
|
|
|
07/05/2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,350,000 |
|
|
$ |
1.02 |
|
|
$ |
1,053,000 |
|
|
|
|
(1) |
|
On January 22, 2006, the Compensation Committee approved the issuance to Mr. Asplund of
options to purchase 300,000 shares of common stock at $9.30, which was the average closing
price of our common stock for the 30day period prior to January 22, 2006, but the grant of
options to acquire 66,667 shares was contingent on receiving approval from our stockholders of
an increase in the number of options issuable under our 2001 Incentive Stock Plan. Our
stockholders approved the increase at our Annual Meeting of Stockholders held on June 7, 2006,
and the options were issued on June 11, 2006 with the $9.30 exercise price established by the
Compensation Committee in January 2006. |
|
(2) |
|
The price of these options was set by the Board of Directors on January 26, 2007 at $0.96 per
share. This price was determined to be the higher of (x) the average closing price of our
common stock as measured over the 30 trading day period prior to January 22, 2007, or (y) the
closing price of our common stock on January 22, 2007. The $0.96 price represents the average
closing price of our common stock as measured over the 30 trading day period prior to January
22, 2007. |
|
(3) |
|
The exercise price was not lower than the market price of our common stock on the grant date
for any of the options listed, except that the exercise price for the options granted to Mr.
Asplund on June 12, 2006 were set during January 2007 based on the formula described in
footnote (1) above. |
78
OUTSTANDING EQUITY AWARDS AT FISCAL YEAREND
The following table includes certain information with respect to the value of all unexercised
options previously awarded to the named executive officers at December 31, 2006.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards |
|
|
Stock Awards |
(a) |
|
|
(b) |
|
(c) |
|
(d) |
|
(e) |
|
(f) |
|
|
(g) |
|
(h) |
|
(i) |
|
(j) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
Plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
Awards: |
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan |
|
Market or |
|
|
|
|
|
|
|
|
|
|
|
Incentive |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards: |
|
Payout |
|
|
|
|
|
|
|
|
|
|
|
Plan Awards: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
Value of |
|
|
|
Number of |
|
Number of |
|
Number of |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market |
|
Unearned |
|
Unearned |
|
|
|
Securities |
|
Securities |
|
Securities |
|
|
|
|
|
|
|
|
|
|
Number of |
|
Value of |
|
Shares, |
|
Shares, |
|
|
|
Underlying |
|
Underlying |
|
Underlying |
|
|
|
|
|
|
|
|
|
|
Shares or |
|
Shares or |
|
Units or |
|
Units or |
|
|
|
Unexercised |
|
Unexercised |
|
Unexercised |
|
|
|
|
|
|
|
|
|
|
Units of |
|
Units of |
|
Other |
|
Other |
|
|
|
Options |
|
Options |
|
Unearned |
|
Option |
|
Option |
|
|
Stock That |
|
Stock That |
|
Rights That |
|
Rights That |
|
|
|
(#) |
|
(#) |
|
Options |
|
Exercise Price |
|
Expiration |
|
|
Have Not |
|
Have Not |
|
Have Not |
|
Have Not |
Name |
|
|
Exercisable |
|
Unexercisable |
|
(#) |
|
($) |
|
Date |
|
|
Vested |
|
Vested |
|
Vested |
|
Vested |
|
|
|
|
|
|
|
David R. Asplund |
|
|
|
|
|
|
|
2,800,000 |
|
|
|
|
|
|
|
(1 |
) |
|
|
07/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,500,000 |
|
|
|
|
|
|
|
|
|
|
$ |
1.02 |
|
|
|
07/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
$ |
0.96 |
|
|
|
01/23/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
|
(1 |
) |
|
|
01/23/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,000 |
|
|
|
|
|
|
$ |
9.30 |
|
|
|
01/23/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,112 |
|
|
|
555 |
|
|
|
|
|
|
$ |
15.00 |
|
|
|
06/10/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,666 |
|
|
|
|
|
|
|
|
|
|
$ |
27.75 |
|
|
|
06/10/2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,667 |
|
|
|
|
|
|
|
|
|
|
$ |
15.00 |
|
|
|
06/10/2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,000 |
|
|
|
|
|
|
|
|
|
|
$ |
17.55 |
|
|
|
06/10/2012 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anna Baluyot |
|
|
|
3,334 |
|
|
|
|
|
|
|
|
|
|
$ |
17.25 |
|
|
|
12/27/2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,000 |
|
|
|
|
|
|
|
|
|
|
$ |
35.40 |
|
|
|
01/01/2014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
666 |
|
|
|
|
|
|
|
|
|
|
$ |
30.75 |
|
|
|
12/30/2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey R. Mistarz |
|
|
|
100,000 |
|
|
|
200,000 |
|
|
|
|
|
|
$ |
1.00 |
|
|
|
08/15/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
250,000 |
|
|
|
500,000 |
|
|
|
|
|
|
$ |
1.02 |
|
|
|
07/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,667 |
|
|
|
|
|
|
|
|
|
|
$ |
15.00 |
|
|
|
12/31/2012 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,332 |
|
|
|
|
|
|
|
|
|
|
$ |
105.00 |
|
|
|
12/31/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel W. Parke |
|
|
|
217,765 |
|
|
|
435,568 |
|
|
|
|
|
|
$ |
1.02 |
|
|
|
07/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,555 |
|
|
|
31,112 |
|
|
|
|
|
|
$ |
1.10 |
|
|
|
06/30/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,334 |
|
|
|
1,666 |
|
|
|
|
|
|
$ |
15.00 |
|
|
|
10/05/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leonard Pisano |
|
|
|
450,000 |
|
|
|
900,000 |
|
|
|
|
|
|
$ |
1.02 |
|
|
|
07/11/2016 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,889 |
|
|
|
17,778 |
|
|
|
|
|
|
$ |
15.00 |
|
|
|
05/03/2015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John P. Mitola |
|
|
|
66,667 |
|
|
|
|
|
|
|
|
|
|
$ |
105.00 |
|
|
|
12/31/2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The option price on these options was set at $0.96 per shares by the Board of Directors
on January 26, 2007. This price was determined to be the higher of (x) the average
closing price of our common stock as measured over the 30 trading day period prior to January
22, 2007, or (y) the closing price of our common stock on January 22, 2007. The $0.96 price
represents the average closing price of our common stock as measured over the 30 trading day
period prior to January 22, 2007. |
79
Stock Options and Incentive Compensation
During the Companys annual meeting of stockholders held on August 30, 2001, our stockholders
approved the adoption of the 2001 Stock Incentive Plan (the Plan), which provided that up to
53,333 shares of our common stock, par value $0.0001, may be issued under the Plan to certain of
our employees and to consultants and directors who are not employees. In addition, the Plan
provides for an additional number of shares of common stock to be reserved for issuance under the
Plan on January 1 of each succeeding year, beginning January 1, 2002, in an amount equal to the
lesser of (i) 5% of the number of outstanding shares of common stock, or (ii) 33,333 shares. At the
annual meeting held on June 7, 2006, our stockholders approved an amendment to the Plan to increase
the number of shares reserved for issuance under the plan by 400,000 shares and to increase the
additional shares issued each January 1st to the lesser of (i) 5% of the number of
outstanding shares of common stock, or (ii) 133,333 shares. (All quantities have been adjusted for
the reverse split announced in June 2006.) The awards to be granted under the Plan may be incentive
stock options eligible for favored treatment under Section 422 of the Internal Revenue code of
1986, as amended from time to time, or nonqualified options that are not eligible for such
treatment, or stock of the Company, which may be subject to contingencies or restrictions, as well
as grants of stock appreciation rights or grants of shares of common stock. Approximately 78
employees and officers of the Company and our subsidiaries are currently eligible to participate in
the Plan.
As of December 31, 2006, there were 620,000 shares of common stock reserved under the Plan. We
granted options to purchase 350,667 under the Plan during 2006, and options to purchase 450,138
shares were outstanding under the Plan as of December 31, 2006. During 2006 we issued options to
purchase 9,666,667 shares outside of the Plan to employees and directors. 2006 grants to directors
are described under Compensation of Directors.
The following information reflects certain information about our equity compensation plans as
of December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity Compensation Plan Information |
|
|
|
(a) |
|
|
(b) |
|
|
(c) |
|
|
|
|
|
|
|
|
|
|
|
Number of |
|
|
|
|
|
|
|
|
|
|
|
securities |
|
|
|
|
|
|
|
|
|
|
|
remaining available |
|
|
|
Number of |
|
|
|
|
|
|
for future issuance |
|
|
|
securities to be |
|
|
Weighted |
|
|
under equity |
|
|
|
issued upon |
|
|
average exercise |
|
|
compensation plans |
|
|
|
exercise of |
|
|
price of |
|
|
(excluding |
|
|
|
outstanding |
|
|
outstanding |
|
|
securities |
|
|
|
options, warrants |
|
|
options, warrants |
|
|
reflected |
|
Plan Category |
|
and rights |
|
|
and rights |
|
|
in column (a)) |
|
Equity compensation plans approved
by security holders (1) |
|
|
450,138 |
|
|
$ |
6.71 |
|
|
|
169,862 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans not
approved by security holders
(2)(3) |
|
|
10,609,466 |
|
|
$ |
3.92 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
11,059,604 |
|
|
$ |
4.03 |
|
|
|
169,862 |
|
|
|
|
(1) |
|
The 2001 Employee Stock Incentive Plan (Plan), which was originally approved by
stockholders at our 2001 Annual Meeting of Stockholders, was amended at our 2006 Annual
Meeting of Stockholders. The amendment to the Plan increased the number of shares reserved
for issuance under the Plan to 620,000 shares of our common stock, which automatically
increases by 133,333 shares on each January 1, beginning January 1, 2007. (All prices and
quantities are adjusted for the 1 for 15 reverse stock split announced during June 2006.) |
|
(2) |
|
Prior to the adoption of the 2001 Employee Stock Incentive Plan, we had granted to
certain of our employees stock options on a discretionary basis. These grants were not made
pursuant to any formal plan. Grants made to employees pursuant to this method were
discontinued following adoption of the Plan. |
|
(3) |
|
We grant stock options to our nonemployee directors pursuant to a Directors Stock
Option Plan (See Compensation of Directors), which grants are included in this category. |
80
COMPENSATION OF DIRECTORS
Effective April 1, 2000, we adopted a stock option plan for all nonemployee directors that
is separate and distinct from the 2001 Stock Incentive Plan. The plan was amended on July 11, 2006
to provide that eligible directors receive an initial option grant upon being appointed to our
Board of Directors to purchase 100,000 shares of our common stock, and a grant of options to
purchase an additional 50,000 shares on the first day of January beginning on the second January
following the date the director became an eligible director. These options have an exercise price
equal to the closing price of our common stock on the grant date and a term of ten years. The
initial options vest on first day of January following the initial grant date or six months
following the initial grant date, whichever is later, if the individual is still a director on the
vesting date. All future grants vest in two equal amounts, one amount on the grant date and the
balance on the anniversary of the grant date, if the individual is still a member of the Board of
Directors on such anniversary date.
We granted options to purchase 520,001 shares under the directors stock option plan during
2006, and options to purchase 605,559 shares were outstanding under this plan as of December 31,
2006.
Directors who are also our employees receive no additional compensation for their services as
directors.
DIRECTOR COMPENSATION TABLE
The following table provides compensation information for the year ended December 31, 2006 for
each member of our Board of Directors.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
(b) |
|
(c) |
|
(d) |
|
(e) |
|
(f) |
|
(g) |
|
(h) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and |
|
|
|
|
|
|
Fees Earned |
|
|
|
|
|
|
|
|
|
Non-Equity |
|
Nonqualified |
|
|
|
|
|
|
or Paid in |
|
Stock |
|
Option |
|
Incentive Plan |
|
Deferred |
|
All Other |
|
|
|
|
Cash |
|
Awards |
|
Awards |
|
Compensation |
|
Compensation |
|
Compensation |
|
Total |
Name |
|
($) |
|
($) |
|
($) (1)(2) |
|
($) |
|
Earnings |
|
($) |
|
($) |
|
David R. Asplund (3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gregory T. Barnum |
|
|
|
|
|
|
|
|
|
|
103,097 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
103,097 |
|
William R. Carey, Jr. |
|
|
|
|
|
|
|
|
|
|
103,097 |
|
|
|
|
|
|
|
|
|
|
|
62,500 |
(4) |
|
|
165,597 |
|
Joseph F. Desmond (5) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard P. Kiphart |
|
|
|
|
|
|
|
|
|
|
98,857 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
98,857 |
|
Daniel W. Parke (6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gerald A. Pientka (7) |
|
|
|
|
|
|
|
|
|
|
85,501 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
85,501 |
|
David W. Valentine |
|
|
|
|
|
|
|
|
|
|
85,127 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
85,127 |
|
81
|
|
|
(1) |
|
Amounts represent the compensation cost recognized during 2006 of stock awards granted in
and prior to 2006 based on the grant date fair value recognized over the requisite service
period in accordance with Statement of Financial Accounting Standards (SFAS) No. 123(R).
The value weightedaverage significant assumptions used to determine the grant date fair
value are as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Significant Assumption |
|
|
|
|
|
|
(value weighted average) |
|
2006 |
|
2005 |
|
2004 |
Riskfree rate |
|
|
5.02 |
% |
|
|
2.27 |
% |
|
|
1.04 |
% |
Dividend yield |
|
|
|
|
|
|
|
|
|
|
|
|
Expected volatility |
|
|
90 |
% |
|
|
65 |
% |
|
|
72 |
% |
Expected life (years) |
|
|
5.6 |
|
|
|
9.1 |
|
|
|
9.1 |
|
|
|
|
(2) |
|
The following options were granted to directors during 2006: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Grant |
|
|
Options |
|
Date Fair |
|
|
Awarded |
|
Value |
Gregory T. Barnum |
|
|
105,000 |
|
|
$ |
114,548 |
|
William R. Carey, Jr. |
|
|
105,000 |
|
|
$ |
114,548 |
|
Richard P. Kiphart |
|
|
105,000 |
|
|
$ |
106,481 |
|
Gerald A. Pientka |
|
|
101,667 |
|
|
$ |
83,218 |
|
David W. Valentine |
|
|
103,334 |
|
|
$ |
85,796 |
|
|
|
|
(3) |
|
See 2006 Summary Compensation Table for disclosure related to David R. Asplund who is
also our Chief Executive Officer. |
|
(4) |
|
We retained Corporate Resource Development, a company owned by Mr. Carey, on two occasions
during 2006 to provide sales training and sales and marketing consulting services. In
exchange for these services, we paid Corporate Resource Development $62,500. |
|
(5) |
|
Mr. Desmond joined our Board of Directors in January 2007. |
|
(6) |
|
See 2006 Summary Compensation Table for disclosure related to Daniel W. Parke, who is also
our President and Chief Operating Officer and the President of Parke Industries, LLC, one of
our subsidiaries. |
|
|
(7) |
|
Mr. Pientka resigned from the Companys Board of Directors effective June 8, 2007. |
|
Compensation Committee Interlocks and Insider Participation
No member of our Boards Compensation Committee has served as one of our officers or employees
at any time. None of our executive officers serve as a member of the compensation committee of any
other company that has an executive officer serving as a member of our Board of Directors. None of
our executive officers serve as a member of the board of directors of any other company that has an
executive officer serving as a member of our Boards Compensation Committee.
82
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT
The following tables list certain information, as of September 12, 2007, regarding the
beneficial ownership of our outstanding common stock by (1) the persons known to us to beneficially
own greater than 5% of each class of our voting securities, (2) each of our directors and named
executive officers, and (3) our directors and executive officers, as a group. Beneficial ownership
is determined in accordance with the rules of the SEC. Except as otherwise noted, (1) the persons
or entities named have sole voting and investment power with respect to all shares shown as
beneficially owned by them and (2) the address of each person listed in the following table (unless
otherwise noted) is c/o Lime Energy Co., 1280 Landmeier Road, Elk Grove Village, Illinois
600072410.
Beneficial Owners of Greater Than 5% of Each Class of Our Common Stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
Common |
|
|
|
|
|
|
|
|
|
|
Shares |
|
Shares |
|
|
|
|
|
|
Common |
|
Issuable Upon |
|
Issuable Upon |
|
|
|
|
|
|
Shares |
|
Exercise of |
|
Exercise of |
|
|
|
|
Name |
|
Directly Held |
|
Warrants |
|
Options (1) |
|
Total |
|
% |
Augustine Fund LP (2) |
|
|
2,662,333 |
|
|
|
18,125 |
|
|
|
|
|
|
|
2,680,458 |
|
|
|
4.984 |
% |
Cinergy Ventures II (3) |
|
|
3,106,927 |
|
|
|
40,000 |
|
|
|
3,333 |
(4) |
|
|
3,150,260 |
|
|
|
5.854 |
% |
Richard P. Kiphart |
|
|
14,848,970 |
|
|
|
945,754 |
|
|
|
128,334 |
|
|
|
15,923,058 |
|
|
|
29.035 |
% |
Leaf Mountain Company (5) |
|
|
3,312,634 |
|
|
|
|
|
|
|
|
|
|
|
3,312,634 |
|
|
|
6.161 |
% |
Daniel R. Parke |
|
|
5,001,701 |
|
|
|
|
|
|
|
253,876 |
|
|
|
5,255,577 |
|
|
|
9.729 |
% |
SF Capital Partners Ltd. (6) |
|
|
4,309,080 |
|
|
|
|
(7) |
|
|
|
|
|
|
4,309,080 |
|
|
|
8.014 |
% |
Directors and Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common |
|
Common |
|
|
|
|
|
|
|
|
|
|
Shares |
|
Shares |
|
|
|
|
|
|
Common |
|
Issuable Upon |
|
Issuable Upon |
|
|
|
|
|
|
Shares |
|
Exercise of |
|
Exercise of |
|
|
|
|
Name |
|
Directly Held |
|
Warrants |
|
Options (1) |
|
Total |
|
% |
Directors and Executive Officers |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David Asplund |
|
|
1,924,703 |
(9) |
|
|
4,500 |
(8) |
|
|
1,710,555 |
|
|
|
3,639,758 |
|
|
|
6.560 |
% |
Gregory Barnum |
|
|
|
|
|
|
|
|
|
|
128,334 |
|
|
|
128,334 |
|
|
|
* |
|
William Carey |
|
|
|
|
|
|
150,000 |
|
|
|
128,334 |
|
|
|
278,334 |
|
|
|
* |
|
Joseph Desmond |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Richard P. Kiphart |
|
|
14,848,970 |
|
|
|
945,754 |
|
|
|
128,334 |
|
|
|
15,923,058 |
|
|
|
29.035 |
% |
Jeffrey R. Mistarz |
|
|
947 |
|
|
|
|
|
|
|
489,999 |
|
|
|
490,946 |
|
|
|
* |
|
Daniel R. Parke |
|
|
5,001,701 |
|
|
|
|
|
|
|
253,876 |
|
|
|
5,255,577 |
|
|
|
9.729 |
% |
Leonard Pisano |
|
|
46,110 |
|
|
|
|
|
|
|
472,778 |
|
|
|
518,888 |
|
|
|
* |
|
David W. Valentine |
|
|
355,900 |
|
|
|
|
|
|
|
132,778 |
|
|
|
488,678 |
|
|
|
* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All directors and executive
officers as a group (9
persons)** |
|
|
22,178,331 |
|
|
|
1,100,254 |
|
|
|
3,444,988 |
|
|
|
26,723,573 |
|
|
|
45.828 |
% |
|
|
|
* |
|
Denotes beneficial ownership of less than 1%. |
|
** |
|
Eliminates duplication |
|
(1) |
|
Represents options to purchase common stock exercisable within 60 days. |
|
(2) |
|
The controlling members, directors and officers, all of whom are Thomas Duszynski, Brian
Porter and John Porter, may be deemed to share power to vote or dispose of the shares held by
Augustine Fund, L.P. The business address of Augustine Fund, L.P. is 141 West Jackson Blvd.,
Suite 2182, Chicago, Illinois 60604. |
83
|
|
|
(3) |
|
Cinergy Technologies, Inc. is a wholly owned subsidiary of Cinergy Corp. and is also the sole
member of Cinergy Ventures II, LLC. The business address of Cinergy Ventures II, LLC is 139
East Fourth Street, Cincinnati, Ohio 45202. Cinergy is a publicly owned entity. Greg Wolf, a
vice president of Cinergy Ventures, has the authority to vote and dispose of the shares held
by Cinergy Ventures II, LLC. |
|
(4) |
|
Reflects stock options awarded pursuant to the Directors Stock Option Program to former
directors of the Company who were employees of Cinergy Ventures II, LLC. The policies of
Cinergy Ventures II provide that director compensation be paid to the Cinergy Ventures II
rather than to the individual. |
|
|
|
(5) |
|
Mr. Jiganti is the Manager of Leaf Mountain Company and has the sole decisionmaking power
with respect to Leaf Mountain Companys investment in Lime Energy. The business address of
Leaf Mountain Company, LLC is 190 South LaSalle Street, Suite 1700, Chicago, Illinois 60603. |
|
(6) |
|
SF Capital Partners Ltd. is a British Virgin Island company. Staro Asset Management, L.L.C.,
a Wisconsin limited liability company, acts as investment manager and has sole power to direct
the management of SF Capital Partners. Through Staro Asset Management, Messrs. Michael A. Roth
and Brian J. Stark possess sole voting and dispositive power over all shares owned by SF
Capital Partners, but disclaim beneficial ownership of such shares. The mailing address for SF
Capital Partners is c/o Stark Offshore Management, LLC, 3600 South Lake Drive, St. Francis, WI
53235. |
|
|
(7) |
|
Excludes warrants to purchase 40,000 shares of common stock which contain provisions known as
exercise caps which prohibit the holder of the warrants (and its affiliates) from exercising
such warrants to the extent that giving effect to such exercise, such holder would
beneficially own in excess of 4.999% and 9.999% of our outstanding common stock, as the case
may be. The holder can waive the 4.999% limit, but such waiver will not become effective
until the 61st day after such notice is delivered to us, and these limits will not restrict
the number of shares of common stock which a holder may receive or beneficially own in order
to determine the amount of securities or other consideration that such holder may receive in
the event of a merger or other business combination or reclassification involving the Company.
The table set forth above reflects the operation of such exercise caps in that we have not
included 40,000 shares of common stock issuable pursuant to such warrants as SF Capital
Partners has advised us that it does not beneficially own such shares due to the fact that it
cannot exercise its right to purchase these shares at this time. In the absence of such caps,
SF Capital would be able to purchase all the shares issuable upon exercise of these warrants
and would have a beneficial ownership percentage of 8.083%. |
|
|
(8) |
|
Includes 6,766 shares of common stock and warrants to purchase 2,000 shares of common stock
held by Delano Group Securities, LLC, of which Mr. Asplund is the principal owner. |
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. Information filed with
the SEC by us can be inspected and copied at the public reference room maintained by the SEC at
Headquarters Office, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may also obtain
copies of this information by mail from the Public Reference Section of the SEC, Headquarters
Office, 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates. Further
information on the operation of the SECs public reference room in Washington, D.C. can be obtained
by calling the SEC at 1800SEC0330.
The SEC also maintains a web site that contains reports, proxy statements and other
information about issuers, such as us, who file electronically with the SEC. The address of that
site is http://www.sec.gov.
Our web site address is http://www.limeenergy.com. The information on our web site,
however, is not, and should not be deemed to be, a part of this prospectus.
84
FINANCIAL STATEMENTS
|
|
|
Index to Financial Statements |
|
Page |
Report of Independent Certified Public Accountants of Lime Energy Co.
|
|
F1 |
|
|
|
Lime Energy Co. Consolidated Balance Sheets as of December 31, 2006
and December 31, 2005
|
|
F2 F3 |
|
|
|
Lime Energy Co. Consolidated Statements of Operations for the Years
Ended December 31, 2006, 2005 and 2004
|
|
F4 |
|
|
|
Lime Energy Co. Statements of Stockholders Equity for the Years
Ended December 31, 2006, 2005 and 2004
|
|
F5 |
|
|
|
Lime Energy Co. Statements of Consolidated Cash Flows for the Years
Ended December 31, 2006, 2005 and 2004
|
|
F6 F8 |
|
|
|
Lime Energy Co. Notes to Consolidated Financial Statements
|
|
F9 F48 |
|
|
|
Lime Energy Co. Condensed Consolidated Balance Sheets as of June 30,
2007 (unaudited) and December 31, 2006
|
|
F50 F51 |
|
|
|
Lime Energy Co. Condensed Consolidated Statement of Operations for
the Three Months and Six Months Ended June 30, 2007 and 2006
(unaudited)
|
|
F52 53 |
|
|
|
Lime Energy Co. Condensed Consolidated Statement of Stockholders
Equity for the Six Months Ended June 30, 2007 (unaudited)
|
|
F54 |
|
|
|
Lime Energy Co. Condensed Consolidated Statement of Cash Flows for
the Six Months Ended June 30, 2007 and 2006 (unaudited)
|
|
F55 56 |
|
|
|
Lime Energy Co. Notes to Condensed Consolidated Financial Statements
|
|
F57 F71 |
|
|
|
Report of Independent Certified Public Accountants of Parke
P.A.N.D.A. Corporation
|
|
F72 |
|
|
|
Parke P.A.N.D.A. Corporation Balance Sheet as of December 31, 2005
and December 31, 2004
|
|
F73 F74 |
|
|
|
Parke P.A.N.D.A. Corporation Statement of Income for the years ended
December 31, 2005 and December 31, 2004
|
|
F75 |
|
|
|
Parke P.A.N.D.A. Corporation Statement of Stockholders Equity for
the years ended December 31, 2005 and December 31, 2004
|
|
F76 |
|
|
|
Parke P.A.N.D.A. Corporation Statement of Cash Flows for the years
ended December 31, 2005 and December 31, 2004
|
|
F77 |
|
|
|
Parke P.A.N.D.A. Corporation Notes to Financial Statements
|
|
F78 F81 |
|
|
|
Parke P.A.N.D.A. Corporation Condensed Consolidated Balance Sheets
as of June 30, 2006 (unaudited)
|
|
F82 F83 |
|
|
|
Parke P.A.N.D.A. Corporation Condensed Consolidated Statement of
Operations for the Six Months Ended June 30, 2006 and 2005
(unaudited)
|
|
F84 |
|
|
|
Parke P.A.N.D.A. Corporation Condensed Consolidated Statement of
Cash Flows for the Six Months Ended June 30, 2006 and 2005
(unaudited)
|
|
F85 |
85
|
|
|
Index to Financial Statements |
|
Page |
Parke P.A.N.D.A. Corporation Notes to Financial Statements
|
|
F86 F87 |
|
|
|
Unaudited pro forma condensed combined statement of operations of
Lime Energy Co. for the year ended December 31, 2006.
|
|
F88 F90 |
86
Report of Independent Registered Public Accounting Firm
Lime Energy Co.
Elk Grove Village, Illinois
We have audited the accompanying consolidated balance sheets of Lime Energy Co. as of December 31,
2006 and 2005, and the related consolidated statements of operations, stockholders equity and cash
flows for each of the three years in the period ended December 31, 2006. We have also audited the
schedule in the accompanying index. These financial statements and schedule are the responsibility
of the Companys management. Our responsibility is to express an opinion on these financial
statements and schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements and schedule are free of material
misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audits included consideration of internal control
over financial reporting as a basis for designing audit procedures that are appropriate in the
circumstances, but not for the purpose of expressing an opinion on the effectiveness of the
Companys internal control over financial reporting. Accordingly, we express no such opinion. An
audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements and schedule, assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall presentation of the financial
statements and schedule. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all
material respects, the financial position of Lime Energy Co. at December 31, 2006 and 2005, and the
results of its operations and its cash flows for each of the three years in the period ended
December 31, 2006, in conformity with accounting principles generally accepted in the United States
of America.
Also, in our opinion, the schedule presents fairly, in all material respects, the information set
forth therein.
As discussed in Note 4 to the consolidated financial statements, effective January 1, 2006, the
Company adopted Statement of Financial Accounting Standards No. 123R, Share- Based Payments using
the modified prospective transition method.
|
|
|
Chicago, Illinois
|
|
/s/ BDO SEIDMAN, LLP |
March 30, 2007 |
|
|
F-1
Lime Energy Co.
Consolidated Balance Sheets
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
4,663,618 |
|
|
$ |
4,229,150 |
|
Accounts receivable, less allowance for doubtful accounts of
$366,000 and $325,000 at December 31, 2006 and 2005,
respectively |
|
|
2,825,947 |
|
|
|
1,747,019 |
|
Inventories (Note 7) |
|
|
614,491 |
|
|
|
1,457,789 |
|
Advances to suppliers |
|
|
132,083 |
|
|
|
324,677 |
|
Costs and estimated earnings in excess of billings on
uncompleted contracts |
|
|
|
|
|
|
28,462 |
|
Prepaid expenses and other |
|
|
279,017 |
|
|
|
207,480 |
|
|
|
|
|
|
|
|
|
|
|
Total Current Assets |
|
|
8,515,156 |
|
|
|
7,994,577 |
|
|
|
|
|
|
|
|
|
|
Net Property and Equipment (Note 8) |
|
|
1,201,008 |
|
|
|
2,514,196 |
|
|
|
|
|
|
|
|
|
|
Long Term Receivables |
|
|
102,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred Financing Costs, net of amortization of $680,100 at
December 31, 2005 (Note 14) |
|
|
|
|
|
|
299,964 |
|
|
|
|
|
|
|
|
|
|
Intangibles, net of amortization of $1,681,771 and $471,765 at
December 31, 2006 and 2005, respectively (Notes 4 and Note 9) |
|
|
5,126,829 |
|
|
|
1,960,835 |
|
|
|
|
|
|
|
|
|
|
Cost in Excess of Assets Acquired |
|
|
10,450,968 |
|
|
|
4,329,402 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
25,396,865 |
|
|
$ |
17,098,974 |
|
|
F-2
Lime Energy Co.
Consolidated Balance Sheets
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Liabilities and Stockholders Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities |
|
|
|
|
|
|
|
|
Line of credit (Note 13) |
|
$ |
|
|
|
$ |
2,000,000 |
|
Notes payable (Note 15) |
|
|
150,000 |
|
|
|
150,000 |
|
Current maturities of long-term debt (Notes 14 and 16) |
|
|
46,699 |
|
|
|
651,313 |
|
Accounts payable |
|
|
1,344,725 |
|
|
|
913,369 |
|
Accrued expenses (Note 11) |
|
|
1,251,777 |
|
|
|
1,228,765 |
|
Deferred revenue |
|
|
967,446 |
|
|
|
984,728 |
|
Customer deposits |
|
|
1,148,090 |
|
|
|
1,419,919 |
|
|
|
|
|
|
|
|
|
|
|
Total Current Liabilities |
|
|
4,908,737 |
|
|
|
7,348,094 |
|
|
|
|
|
|
|
|
|
|
|
Deferred Revenue |
|
|
748,980 |
|
|
|
1,044,524 |
|
|
|
|
|
|
|
|
|
|
Long-Term Debt, less current maturities net of unamortized
discount of $0 and $898,409 as of December 31, 2006
and 2005, respectively (Notes 14 and 16) |
|
|
520,392 |
|
|
|
4,328,719 |
|
|
|
|
|
|
|
|
|
|
Deferred Tax Liability |
|
|
1,034,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities |
|
|
7,212,109 |
|
|
|
12,721,337 |
|
|
|
|
|
|
|
|
|
|
Commitments (Note 18 and 20) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders Equity (Notes 21, 22, 23, 24 and 25) |
|
|
|
|
|
|
|
|
Preferred stock, $.01 par value; 5,000,000 shares authorized, |
|
|
|
|
|
|
|
|
Series E 0 and 236,254 issued and outstanding as of
December 31, 2006 and December 31, 2005, respectively
(liquidation value of $0 and $47,250,800 at December 31, 2006
and December 31, 2005, respectively) |
|
|
|
|
|
|
2,363 |
|
Common stock, $.0001 par value; 200,000,000 shares authorized,
49,786,611 and 3,386,465 issued as of December 31, 2006
and December 31, 2005, respectively |
|
|
4,979 |
|
|
|
339 |
|
Additional paid-in capital |
|
|
95,025,912 |
|
|
|
64,773,556 |
|
Accumulated deficit |
|
|
(76,846,135 |
) |
|
|
(60,398,621 |
) |
|
|
|
|
|
|
|
|
|
|
Total Stockholders Equity |
|
|
18,184,756 |
|
|
|
4,377,637 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
25,396,865 |
|
|
$ |
17,098,974 |
|
|
See accompanying notes to consolidated financial statements.
F-3
Lime Energy Co.
Consolidated Statements of Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended |
|
|
Year ended |
|
|
Year ended |
|
|
|
December 31, |
|
|
December 31, |
|
|
December 31, |
|
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Revenue |
|
$ |
8,143,624 |
|
|
$ |
3,693,429 |
|
|
$ |
733,630 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales (includes reserve for obsolete inventory of
$578,442 and $35,078 in the years ended December 31, 2006
and 2005) |
|
|
6,931,294 |
|
|
|
3,691,854 |
|
|
|
862,366 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss) |
|
|
1,212,330 |
|
|
|
1,575 |
|
|
|
(128,736 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative (includes share based
compensation expense of $4,532,001, $0 and $0 for the
years ended December 31, 2006, 2005 and 2004,
respectively) |
|
|
12,165,700 |
|
|
|
5,363,503 |
|
|
|
4,234,240 |
|
Amortization of intangibles (Note 9) |
|
|
1,210,006 |
|
|
|
471,765 |
|
|
|
|
|
Impairment loss (Note 10) |
|
|
1,183,525 |
|
|
|
242,830 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(13,346,901 |
) |
|
|
(6,076,523 |
) |
|
|
(4,362,976 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Income (Expense) |
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
194,182 |
|
|
|
58,737 |
|
|
|
22,505 |
|
Interest expense (Notes 13, 14 and 17) |
|
|
(3,273,370 |
) |
|
|
(602,990 |
) |
|
|
(648,554 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other income (expense) |
|
|
(3,079,188 |
) |
|
|
(544,253 |
) |
|
|
(626,049 |
) |
|
|
Loss from continuing operations before discontinued operations |
|
|
(16,426,089 |
) |
|
|
(6,620,776 |
) |
|
|
(4,989,025 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued Operations: |
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operation of discontinued business |
|
|
(21,425 |
) |
|
|
(251,962 |
) |
|
|
(170,337 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss |
|
|
(16,447,514 |
) |
|
|
(6,872,738 |
) |
|
|
(5,159,362 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock Dividends (Note 24) |
|
|
(24,347,725 |
) |
|
|
(1,851,345 |
) |
|
|
(4,639,259 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss Available to Common Shareholders |
|
$ |
(40,795,239 |
) |
|
$ |
(8,724,083 |
) |
|
$ |
(9,798,621 |
) |
|
|
Basic and diluted loss per common share from
continuing operations |
|
$ |
(1.52 |
) |
|
$ |
(2.65 |
) |
|
$ |
(3.62 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued operations |
|
|
0.00 |
|
|
|
(0.08 |
) |
|
|
(0.06 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and Diluted Loss Per Common Share |
|
$ |
(1.52 |
) |
|
$ |
(2.73 |
) |
|
$ |
(3.68 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average Common Shares Outstanding (Note 25) |
|
|
26,908,608 |
|
|
|
3,190,664 |
|
|
|
2,660,092 |
|
|
See accompanying notes to consolidated financial statements.
F-4
Lime Energy Co.
Consolidated Statements of Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
|
|
Series A |
|
|
Series A |
|
|
Series C |
|
|
Series C |
|
|
Series D |
|
|
Series D |
|
|
Series E |
|
|
Series E |
|
|
Additional |
|
|
Accumu- |
|
|
Stock- |
|
|
|
Common |
|
|
Common |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Preferred |
|
|
Paid-in |
|
|
lated |
|
|
holders |
|
|
|
Shares |
|
|
Stock |
|
|
Shares |
|
|
Stock |
|
|
Shares |
|
|
Stock |
|
|
Shares |
|
|
Stock |
|
|
Shares |
|
|
Stock |
|
|
Capital |
|
|
Deficit |
|
|
Equity |
|
|
Balance, December 31, 2003 |
|
|
2,289,468 |
|
|
$ |
229 |
|
|
|
2,396,590 |
|
|
$ |
23,966 |
|
|
|
233,614 |
|
|
$ |
2,336 |
|
|
|
157,769 |
|
|
$ |
1,578 |
|
|
|
|
|
|
$ |
|
|
|
$ |
51,379,344 |
|
|
$ |
(48,366,521 |
) |
|
$ |
3,040,932 |
|
|
Issuance of common stock (net of offering costs of
$910,393) |
|
|
333,333 |
|
|
|
33 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,089,574 |
|
|
|
|
|
|
|
10,089,607 |
|
Conversion of preferred stock |
|
|
130,447 |
|
|
|
13 |
|
|
|
(145,000 |
) |
|
|
(1,450 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,067 |
) |
|
|
(51 |
) |
|
|
1,488 |
|
|
|
|
|
|
|
|
|
Redemption of preferred stock |
|
|
|
|
|
|
|
|
|
|
(514,375 |
) |
|
|
(5,144 |
) |
|
|
|
|
|
|
|
|
|
|
(24,087 |
) |
|
|
(241 |
) |
|
|
|
|
|
|
|
|
|
|
(6,994,621 |
) |
|
|
|
|
|
|
(7,000,006 |
) |
Exchange of preferred stock |
|
|
|
|
|
|
|
|
|
|
(1,737,215 |
) |
|
|
(17,372 |
) |
|
|
(233,614 |
) |
|
|
(2,336 |
) |
|
|
(133,682 |
) |
|
|
(1,337 |
) |
|
|
210,451 |
|
|
|
2,105 |
|
|
|
18,940 |
|
|
|
|
|
|
|
|
|
Cumulative dividends on preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,636,780 |
) |
|
|
|
|
|
|
(1,636,780 |
) |
Satisfaction of accrued dividends through the issuance
of preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,368 |
|
|
|
164 |
|
|
|
1,636,616 |
|
|
|
|
|
|
|
1,636,780 |
|
Conversion of term note |
|
|
8,667 |
|
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
275,599 |
|
|
|
|
|
|
|
275,600 |
|
Exercise of warrants (net of offering costs of $24,000) |
|
|
12,333 |
|
|
|
1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,000 |
|
|
|
30 |
|
|
|
460,969 |
|
|
|
|
|
|
|
461,000 |
|
Warrants issued for services received |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
72,500 |
|
|
|
|
|
|
|
72,500 |
|
Other |
|
|
(74 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss for the year ended December 31, 2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,159,362 |
) |
|
|
(5,159,362 |
) |
|
Balance, December 31, 2004 |
|
|
2,774,174 |
|
|
$ |
277 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
224,752 |
|
|
$ |
2,248 |
|
|
$ |
55,303,629 |
|
|
$ |
(53,525,883 |
) |
|
$ |
1,780,271 |
|
|
Issuance of common stock (net of offering costs of
$211,787) |
|
|
416,666 |
|
|
|
42 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,413,171 |
|
|
|
|
|
|
|
5,413,213 |
|
Conversion of preferred stock |
|
|
14,446 |
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,167 |
) |
|
|
(22 |
) |
|
|
20 |
|
|
|
|
|
|
|
|
|
Acquisition of Maximum Performance Group, Inc. |
|
|
166,148 |
|
|
|
16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,691,591 |
|
|
|
|
|
|
|
2,691,607 |
|
Cumulative dividends on preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,366,900 |
) |
|
|
|
|
|
|
(1,366,900 |
) |
Satisfaction of accrued dividends through the issuance
of preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,669 |
|
|
|
137 |
|
|
|
1,366,763 |
|
|
|
|
|
|
|
1,366,900 |
|
Warrants issued in connection with convertible debt
issuance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
920,000 |
|
|
|
|
|
|
|
920,000 |
|
Common stock issued for services received |
|
|
15,031 |
|
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
125,482 |
|
|
|
|
|
|
|
125,484 |
|
Warrants issued for services received |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
319,800 |
|
|
|
|
|
|
|
319,800 |
|
Net loss for the year ended December 31, 2005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,872,738 |
) |
|
|
(6,872,738 |
) |
|
Balance, December 31, 2005 |
|
|
3,386,465 |
|
|
$ |
339 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
236,254 |
|
|
$ |
2,363 |
|
|
$ |
64,773,556 |
|
|
$ |
(60,398,621 |
) |
|
$ |
4,377,637 |
|
|
Issuance of common stock (net of offering costs of
$115,107) |
|
|
17,875,000 |
|
|
|
1,787 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,758,107 |
|
|
|
|
|
|
|
17,759,894 |
|
Cumulative dividends on preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(698,000 |
) |
|
|
|
|
|
|
(698,000 |
) |
Satisfaction of accrued dividends through the issuance
of preferred stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,980 |
|
|
|
70 |
|
|
|
697,930 |
|
|
|
|
|
|
|
698,000 |
|
Conversion of preferred stock |
|
|
21,695,879 |
|
|
|
2,170 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(243,234 |
) |
|
|
(2,433 |
) |
|
|
263 |
|
|
|
|
|
|
|
|
|
Sale of Great Lakes Controlled Energy Corporation |
|
|
(14,194 |
) |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(193,742 |
) |
|
|
|
|
|
|
(193,743 |
) |
Acquisition of Parke P.A.N.D.A. Corporation |
|
|
5,000,000 |
|
|
|
500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,999,500 |
|
|
|
|
|
|
|
5,000,000 |
|
Acquisition of Kapadia Consulting, Inc. |
|
|
500,000 |
|
|
|
50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
479,950 |
|
|
|
|
|
|
|
480,000 |
|
Conversion of revolver |
|
|
950,865 |
|
|
|
95 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
951,882 |
|
|
|
|
|
|
|
951,977 |
|
Beneficial value of adjustment in revolver conversion price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
950,865 |
|
|
|
|
|
|
|
950,865 |
|
Term loan liquidated damages satisfied through the
issuance of common stock |
|
|
161,096 |
|
|
|
16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
185,244 |
|
|
|
|
|
|
|
185,260 |
|
Termination of post repayment interest obligation |
|
|
231,500 |
|
|
|
23 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
266,202 |
|
|
|
|
|
|
|
266,225 |
|
Warrants issued for services received |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,200 |
|
|
|
|
|
|
|
25,200 |
|
Share based compensation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,828,955 |
|
|
|
|
|
|
|
4,828,955 |
|
Net loss for the year ended December 31, 2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16,447,514 |
) |
|
|
(16,447,514 |
) |
|
Balance, December 31, 2006 |
|
|
49,786,611 |
|
|
$ |
4,979 |
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
|
$ |
95,025,912 |
|
|
$ |
(76,846,135 |
) |
|
$ |
18,184,756 |
|
|
See accompanying notes to consolidated financial statements.
F-5
Lime Energy Co.
Statements of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended |
|
|
Year ended |
|
|
Year ended |
|
|
|
December 31, |
|
|
December 31, |
|
|
December 31, |
|
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Cash Flows From Operating Activities |
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(16,447,514 |
) |
|
$ |
(6,872,738 |
) |
|
$ |
(5,159,362 |
) |
Adjustments to reconcile net loss to net cash used in
operating activities, net of assets acquired and disposed of: |
|
|
|
|
|
|
|
|
|
|
|
|
Provision for bad debts |
|
|
105,442 |
|
|
|
96,872 |
|
|
|
5,865 |
|
Share based compensation |
|
|
4,828,955 |
|
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
1,386,597 |
|
|
|
601,869 |
|
|
|
58,878 |
|
Amortization of deferred financing costs |
|
|
299,964 |
|
|
|
93,774 |
|
|
|
382,710 |
|
Amortization of issuance discount |
|
|
898,409 |
|
|
|
71,639 |
|
|
|
191,727 |
|
Liquidated damages satisfied through issuance of
common stock |
|
|
185,260 |
|
|
|
|
|
|
|
|
|
Termination of post repayment interest and interest
converted to common stock |
|
|
274,747 |
|
|
|
|
|
|
|
|
|
Beneficial value of adjustment in revolver conversion price |
|
|
950,865 |
|
|
|
|
|
|
|
|
|
Issuance of shares and warrants in exchange for
services received |
|
|
25,200 |
|
|
|
319,800 |
|
|
|
72,500 |
|
Accrued interest converted to common stock |
|
|
|
|
|
|
|
|
|
|
4,736 |
|
Loss on disposal of fixed assets |
|
|
115,914 |
|
|
|
11,743 |
|
|
|
|
|
Asset impairment |
|
|
1,183,525 |
|
|
|
|
|
|
|
|
|
Provision for inventory obsolescence |
|
|
568,558 |
|
|
|
19,232 |
|
|
|
|
|
Goodwill impairment |
|
|
|
|
|
|
242,830 |
|
|
|
|
|
Changes in assets and liabilities, net of dispositions |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(279,822 |
) |
|
|
(484,685 |
) |
|
|
377,842 |
|
Inventories |
|
|
519,491 |
|
|
|
(121,254 |
) |
|
|
(334,628 |
) |
Advances to suppliers |
|
|
192,594 |
|
|
|
148,012 |
|
|
|
|
|
Other current assets |
|
|
72,537 |
|
|
|
(81,604 |
) |
|
|
(143,971 |
) |
Accounts payable |
|
|
(359,331 |
) |
|
|
(1,299,561 |
) |
|
|
(14,401 |
) |
Accrued liabilities |
|
|
(300,017 |
) |
|
|
2,136 |
|
|
|
26,101 |
|
Deferred revenue |
|
|
(196,310 |
) |
|
|
401,050 |
|
|
|
4,112 |
|
Customer deposits |
|
|
(273,149 |
) |
|
|
(105,757 |
) |
|
|
488,833 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(6,248,085 |
) |
|
|
(6,956,642 |
) |
|
|
(4,039,058 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows From Investing Activities |
|
|
|
|
|
|
|
|
|
|
|
|
Acquisitions (including acquisition costs), net of cash acquired |
|
|
(4,098,377 |
) |
|
|
(1,632,972 |
) |
|
|
|
|
Sale of discontinued operations |
|
|
(83,586 |
) |
|
|
|
|
|
|
|
|
Purchase of property and equipment |
|
|
(82,967 |
) |
|
|
(548,874 |
) |
|
|
(149,603 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities |
|
|
(4,264,930 |
) |
|
|
(2,181,846 |
) |
|
|
(149,603 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows From Financing Activities |
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings (payments) on line of credit |
|
|
(1,456,545 |
) |
|
|
2,000,000 |
|
|
|
|
|
Proceeds from long-term debt |
|
|
|
|
|
|
5,000,000 |
|
|
|
|
|
Payments on long-term debt |
|
|
(5,355,865 |
) |
|
|
(541,547 |
) |
|
|
(39,155 |
) |
Preferred stock redemption |
|
|
|
|
|
|
|
|
|
|
(7,000,006 |
) |
Proceeds from issuance of preferred stock |
|
|
|
|
|
|
|
|
|
|
11,000,000 |
|
Proceeds from issuance of common stock |
|
|
17,875,000 |
|
|
|
5,625,000 |
|
|
|
|
|
Costs related to stock issuances |
|
|
(115,107 |
) |
|
|
(211,787 |
) |
|
|
(910,393 |
) |
Cash paid for deferred financing costs |
|
|
|
|
|
|
(293,836 |
) |
|
|
|
|
Proceeds from exercise of warrants |
|
|
|
|
|
|
|
|
|
|
461,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities |
|
|
10,947,483 |
|
|
|
11,577,830 |
|
|
|
3,511,446 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Increase (Decrease) in Cash and Cash Equivalents |
|
|
434,468 |
|
|
|
2,439,342 |
|
|
|
(677,215 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at beginning of period |
|
|
4,229,150 |
|
|
|
1,789,808 |
|
|
|
2,467,023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at end of period |
|
$ |
4,663,618 |
|
|
$ |
4,229,150 |
|
|
$ |
1,789,808 |
|
F-6
Lime Energy Co.
Statements of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended |
|
|
Year ended |
|
|
Year ended |
|
|
|
December 31, |
|
|
December 31, |
|
|
December 31, |
|
|
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Supplemental Disclosures of Cash Flow Information |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid during the period for interest continuing
Operations (including prepayment penalties) |
|
$ |
911,000 |
|
|
$ |
214,200 |
|
|
$ |
82,400 |
|
Cash paid during the period for interest discontinued
operations |
|
|
0 |
|
|
|
400 |
|
|
|
600 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock, warrants and options issued in
exchange for services received |
|
|
25,200 |
|
|
|
319,800 |
|
|
|
72,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual satisfied through the issuance of
common stock |
|
|
7,410 |
|
|
|
|
|
|
|
4,736 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventory transferred to fixed assets (VNPP assets) |
|
|
|
|
|
|
|
|
|
|
762,243 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Satisfaction of accrued dividends on Series A Preferred |
|
|
|
|
|
|
|
|
|
|
|
|
Stock through the issuance of 5,407 shares of Series E
Preferred stock during the year ended December 31, 2004
and 225,398 shares of Series A Preferred stock during
the year ended December 31, 2003 |
|
|
|
|
|
|
|
|
|
|
540,705 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Satisfaction of accrued dividends on Series C Preferred |
|
|
|
|
|
|
|
|
|
|
|
|
Stock through the issuance of 532 shares of Series E |
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock during the year ended December 31, 2004 |
|
|
|
|
|
|
|
|
|
|
53,206 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Satisfaction of accrued dividends on Series D Preferred |
|
|
|
|
|
|
|
|
|
|
|
|
Stock through the issuance of 359 shares of Series E |
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock during the year ended December 31, 2004 |
|
|
|
|
|
|
|
|
|
|
35,932 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Satisfaction of accrued dividends on Series E Preferred |
|
|
|
|
|
|
|
|
|
|
|
|
Stock through the issuance of 6,980, 13,669 and 10,070
shares of Series E Preferred stock during the years ended
December 31, 2006, 2005 and December 31, 2004,
respectively |
|
|
698,000 |
|
|
|
1,366,900 |
|
|
|
1,006,937 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Conversion of convertible debt to common stock |
|
$ |
943,455 |
|
|
$ |
|
|
|
$ |
270,864 |
|
Holders of Series E preferred stock converted 243,234 shares of Series E preferred stock into 21,695,879
shares of the Companys common stock during the year ended December 31, 2006.
The holder of the Companys revolving convertible note converted the outstanding balance of $943,455 along with
$7,410 of accrued interest thereon into 950,865 shares of the Companys common stock on June 29, 2006.
The Company satisfied $161,096 of liquidated damages for failing to register common stock with the SEC in
connection with the $5 million term loan which the Company issued in November 2005, through the issuance on June
29, 2006 of 161,096 shares of its common stock to the holder of the note.
On June 29, 2006, in exchange for receiving 231,500 shares of the Companys common stock, the holder of the $5
million term loan issued in November 2005 waived the requirement that the company pay a portion of the cash flow
generated by certain projects for a period of 5 years following the repayment of the note.
F-7
Lime Energy Co.
Statements of Cash Flows
Supplemental Disclosures of Noncash Investing and Financing Activities:
On June 30, 2006, the Company purchased Parke P.A.N.D.A. Corporation for
$2,863,895 in cash (net of cash acquired of $1,710 and including transaction
costs of $145,605), and 5,000,000 shares of Lime Energy common stock. The
related assets and liabilities at the date of acquisition were as follows:
|
|
|
|
|
Cash |
|
$ |
1,710 |
|
Accounts receivable |
|
|
710,465 |
|
Inventory |
|
|
142,789 |
|
Other current assets |
|
|
7,088 |
|
Property and equipment |
|
|
79,917 |
|
Identifiable intangible assets |
|
|
3,247,000 |
|
Cost in excess of assets acquired |
|
|
5,584,874 |
|
|
|
|
|
Total assets acquired |
|
|
9,773,843 |
|
|
|
|
|
|
Line of credit |
|
|
(400,000 |
) |
Accounts payable |
|
|
(338,536 |
) |
Accrued expenses |
|
|
(89,571 |
) |
Notes payable |
|
|
(45,763 |
) |
Other current liabilities |
|
|
(368 |
) |
Deferred tax liability |
|
|
(1,034,000 |
) |
|
|
|
|
Total liabilities assumed |
|
|
(1,908,238 |
) |
|
|
|
|
|
|
|
|
|
Net assets acquired |
|
|
7,865,605 |
|
|
|
|
|
|
Less valuation of shares issued for acquisition |
|
|
(5,000,000 |
) |
Acquisition costs |
|
|
(145,605 |
) |
|
|
|
|
Total cash paid |
|
$ |
2,720,000 |
|
On September 27, 2006, the Company purchased Kapaida Consulting, Inc. for
$1,234,482 in cash (net of cash acquired of $47,329 and including
transaction costs of $31,811), and 500,000 shares of Lime Energy common
stock. The related assets and liabilities at the date of acquisition were
as follows:
|
|
|
|
|
Cash |
|
$ |
47,329 |
|
Accounts receivable |
|
|
574,160 |
|
Inventory |
|
|
111,962 |
|
Other current assets |
|
|
122,451 |
|
Long term receivables |
|
|
17,713 |
|
Property and equipment |
|
|
16,430 |
|
Identifiable intangible assets |
|
|
1,129,000 |
|
Cost in excess of assets acquired |
|
|
710,433 |
|
|
|
|
|
Total assets acquired |
|
|
2,729,478 |
|
|
|
|
|
|
Accounts payable |
|
|
(657,080 |
) |
Accrued expenses |
|
|
(299,316 |
) |
Other current liabilities |
|
|
(11,271 |
) |
|
|
|
|
Total liabilities assumed |
|
|
(967,667 |
) |
|
|
|
|
|
|
|
|
|
Net assets acquired |
|
|
1,761,811 |
|
|
|
|
|
|
Less valuation of shares issued for acquisition |
|
|
(480,000 |
) |
Acquisition costs |
|
|
(31,811 |
) |
|
|
|
|
Total cash paid |
|
$ |
1,250,000 |
|
See accompanying notes to consolidated financial statements.
F-8
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 1 Description of Business
Lime Energy Co. (the Company), a Delaware corporation, is a developer, manufacturer and
integrator of energy savings technologies and services. The Company is made up of four separate
companies, comprising two distinct business segments: Lime Energy Co. (Lime Energy) and Maximum
Performance Group, Inc. (MPG) comprise the Energy Technology segment and Parke Industries, LLC
(Parke) and Kapadia Energy Services, Inc. (Kapadia) comprise the Energy Services segment. Lime
Energy is located in Elk Grove Village, Illinois, a suburb of Chicago. MPG is headquartered in San
Diego with a sales office in New York City. Parke is headquartered in Glendora, California with
several sales offices in northern California and Kapadia is headquartered in Peekskill, New York
with an office in Ventura, California. In March 2006, the Company sold Great Lakes Controlled
Energy Corporation (Great Lakes), which comprised the building control and automation control
segment. In order to focus exclusively on its energy products and services the Company sold Great
Lakes in March 2006.
Note 2 Basis of Presentation
The accompanying consolidated financial statements have been prepared in accordance with
accounting principles generally accepted in the United States of America (GAAP).
Note 3 Name Change
On September 13, 2006, the Company changed its name from Electric City Corp. to Lime Energy
Co. by merging with a wholly owned subsidiary set up solely for the purpose of effecting the name
change. In connection with the name change, the Companys ticker symbol changed from ELCY to LMEC
effective on September 22, 2006.
Note 4 Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Lime Energy Co. and its wholly
owned subsidiaries, Maximum Performance Group, Inc., Parke Industries LLC and Kapadia Energy
Services, Inc. All significant intercompany balances and transactions have been eliminated.
F-9
Lime Energy Co.
Notes to Consolidated Financial Statements
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting
principles requires management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and Cash Equivalents
The Company considers highly liquid investments with a maturity of three months or less when
purchased to be cash equivalents.
Concentration of Risk
The Companys customers are primarily owners of, or tenants of, commercial and industrial
buildings and distributors of its products. Three customers each accounted for approximately 13%
of the Companys consolidated billings during the year ended December 31, 2006. Two customers
accounted for approximately 37% and 11% of the Companys consolidated billings, respectively during
the year ended December 31, 2005, while five customers accounted for 39%, 14%, 12%, 11% and 10% of
the Companys consolidated revenue, respectively during the year ended December 31, 2004.
The Company purchases its materials from a variety of suppliers and continues to seek out
alternate suppliers for critical components so that it can be assured that its sales will not be
interrupted by the inability of a single supplier to deliver product. During the year ended
December 31, 2006, one supplier accounted for approximately 12% of the Companys total purchases
while no single supplier accounted for more than 10% of the Companys total purchases during the
year ended December 31, 2005. During the year ended December 31, 2004, three suppliers accounted
for 25%, 19% and 14% of the Companys total purchases, respectively.
The Company maintains cash and cash equivalents in accounts with a financial institution in
excess of the amount insured by the Federal Deposit Insurance Corporation. The Company monitors the
financial stability of this institution regularly and management does not believe there is
significant credit risk associated with deposits in excess of federally insured amounts.
Allowance for Doubtful Accounts
The Company records an allowance for doubtful accounts based on specifically identified
amounts that it believes to be uncollectible. If actual collections experience changes, revisions
to the allowance may be required. After all attempts to collect a receivable have failed, the
receivable is written off against the allowance. Based on the information available to it, the
Company believes its allowance for doubtful accounts is adequate. However, actual write-offs might
exceed the recorded allowance.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined utilizing the
first-in, first-out (FIFO) method.
F-10
Lime Energy Co.
Notes to Consolidated Financial Statements
Properties & Equipment
Property and equipment are stated at cost. For financial reporting purposes depreciation is
computed over the estimated useful lives of the assets by the straight-line method over the
following lives:
|
|
|
|
|
Buildings |
|
39 years |
Computer equipment |
|
3 years |
Office equipment |
|
3 - 5 years |
Furniture |
|
5 - 10 years |
Manufacturing equipment |
|
3 - 5 years |
Transportation equipment |
|
3 - 5 years |
Cost in Excess of Assets Acquired
Goodwill represents the purchase price in excess of the fair value of assets acquired in
business combinations. Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and
Other Intangible Assets, requires the Company to assess goodwill for impairment at least annually
in the absence of an indicator of possible impairment and immediately upon an indicator of possible
impairment. During the fourth quarter of 2004, the Company completed its annual assessment of
impairment regarding the goodwill recorded for its Building Control and Automation segment. That
assessment, supported by independent appraisals of the fair value of the segment, did not identify
any impairment. However, the 2005 appraisal, made using customary valuation methodologies,
including discounted cash flows and fundamental analysis, did reveal a impairment. Further
supporting this assessment, in February 2006, the Company signed a letter of intent to sell the
segment for an amount below the carrying value of the reporting unit. The decline in fair value of
the Building Control and Automation segment was primarily the result of the segment failing to meet
earnings expectations, due in part to strong competition in its markets. As a result of this
decline in fair value, the Company recorded an impairment loss of $242,830 during the year ended
December 31, 2005.
During the fourth quarter of 2006, the Company with the assistance of a third party valuation
expert, updated its projections for its Energy Technology business and estimated the fair value
based on the discounted current value of the estimated future cash flows. It then compared the
implied fair value of the reporting unit to its carrying value and determined that the value of the
goodwill was not impaired. It is possible that upon completion of future impairment tests, as the
result of changes in facts or circumstances, the Company may have to take additional charges to
recognize a further write-down of the value of its acquisitions to their estimated fair values.
Deferred Financing Costs
The Company capitalized as deferred financing costs $980,064 of expense incurred in arranging
its convertible revolving credit facility and convertible term loans. These deferred financing
costs were being amortized over the life of the related convertible term loan using the effective
interest method. On June 29, 2006 the Company prepaid the outstanding balance on its two
convertible term loans and Laurus Master Fund, Ltd, the holder of the convertible notes, elected to
convert the outstanding balance of the convertible revolving credit facility into common stock.
Upon the repayment and conversion of these notes the Company was required to recognize as interest
expense the remaining unamortized balances of the capitalized issuance costs and the debt discount
of $231,281 in June 2006. Amortization of the
deferred financing costs included in interest expense totaled $299,964, $93,774 and $382,710 in
2006, 2005 and 2004, respectively.
F-11
Lime Energy Co.
Notes to Consolidated Financial Statements
Impairment of Long-Lived Assets
The Company records impairment losses on long-lived assets used in operations when events and
circumstances indicate that the assets might be impaired and the undiscounted cash flows estimated
to be generated by those assets are less than the carrying amount of those items. The Companys
cash flow estimates are based on historical results adjusted to reflect its best estimate of future
market and operating conditions. The net carrying value of assets not recoverable is reduced to
fair value. These estimates of fair value represent managements best estimate based on industry
trends and reference to market rates and transactions.
Revenue Recognition
The Company recognizes revenue when all four of the following criteria are met: (i) persuasive
evidence has been received that an arrangement exists; (ii) delivery of the products and/or
services has occurred; (iii) the selling price is fixed or determinable; and (iv) collectibility is
reasonably assured. In addition, the Company follows the provisions of the Securities and Exchange
Commissions Staff Accounting Bulletin No. 104, Revenue Recognition, which sets forth guidelines in
the timing of revenue recognition based upon factors such as passage of title, installation,
payments and customer acceptance. Any amounts received prior to satisfying the Companys revenue
recognition criteria is recorded as deferred revenue in the accompanying balance sheet.
The Company accounts for revenue on most of its long-term contracts on the completed contract
method, whereby revenue is recognized once the project is substantially complete. However, revenue
on long-term contracts is recorded under the percentage of completion method in conjunction with
the cost-to-cost method of measuring the extent of progress toward completion consistent with the
AICPAs Statement of Position 81-1 (SOP 81-1). Any anticipated losses on contracts are charged to
operations as soon as they are determinable.
The timing of revenue recognition may differ from contract payment schedules resulting in
revenues that have been earned but not yet billed. These amounts are recorded on the balance sheet
as Costs and estimated earnings in excess of billings on uncompleted contracts. The Company had
costs and estimated profits in excess of billings on long-term jobs of $0 and $28,462 at December
31, 2006 and 2005, respectively. Billings on contracts that do not meet the Companys revenue
recognition policy requirements for which it has been paid or has a valid account receivable are
recorded as deferred revenue. Deferred revenue for billings that did not meet the Companys revenue
recognition policies totaled $294,430 and $589,080 as of December 31, 2006 and 2005, respectively.
The Companys MPG subsidiary often bundles contracts to provide monitoring services and web
access with the sale of its eMAC hardware. As a result, these sales are considered to be contracts
with multiple deliverables which at the time the hardware is delivered and installed includes
undelivered services essential to the functionality of the product. Accordingly, the Company
defers the revenue for the product and services and the cost of the equipment and installation and
recognizes them over the term of the monitoring contract. The monitoring contracts vary in length
from 1 month to 5 years. Deferred revenue includes $1,421,996 and $1,440,172 as of December 31,
2006 and 2006, respectively, related to these contracts.
Shipping and Handling Costs
The Company classifies freight costs billed to customers as revenue. Costs related to freight
are classified as cost of sales.
F-12
Lime Energy Co.
Notes to Consolidated Financial Statements
Research and Development Costs
Research and development costs are charged to operations when incurred and are included in
selling, general and administrative expenses. Total research and development costs charged to
operations were approximately $535,000, $395,000, and $150,000 for the periods ended December 31,
2006, 2005 and 2004, respectively.
Advertising, Marketing and Promotional Costs
Expenditures on advertising, marketing and promotions are charged to operations in the period
incurred and totaled $2,000, $7,000 and $2,000 for the periods ended December 31, 2006, 2005 and
2004, respectively.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred income taxes
are recognized for the tax consequences in future years of the differences between the tax basis of
assets and liabilities and their financial reporting amounts at each period end based on enacted
tax laws and statutory tax rates applicable to the periods in which the differences are expected to
affect taxable earnings. Valuation allowances are established when necessary to reduce deferred
tax assets to the amount more likely than not to be realized.
Net Loss Per Share
The Company computes loss per share under Statement of Financial Accounting Standards No. 128,
Earnings Per Share. The statement requires presentation of two amounts; basic and diluted loss
per share. Basic loss per share is computed by dividing the loss available to common stockholders
by the weighted average common shares outstanding. Diluted earnings per share would include all
common stock equivalents unless anti-dilutive. The Company has not included the outstanding
options, warrants, or convertible preferred stock as common stock equivalents because the effect
would be antidilutive.
The following table sets forth the weighted average shares issuable upon exercise of
outstanding options and warrants and conversion of preferred stock and convertible debt that is not
included in the basic and diluted net loss per share available to common stockholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Weighted average shares issuable
upon exercise of outstanding
options |
|
|
5,448,173 |
|
|
|
781,358 |
|
|
|
712,703 |
|
Weighted average shares issuable
upon exercise of outstanding
warrants |
|
|
1,097,481 |
|
|
|
910,678 |
|
|
|
733,594 |
|
Weighted average shares issuable
upon conversion of preferred stock |
|
|
760,641 |
|
|
|
1,519,209 |
|
|
|
1,536,382 |
|
Weighted average shares issuable
upon conversion of convertible
debt |
|
|
176,904 |
|
|
|
157,225 |
|
|
|
23,845 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
7,483,199 |
|
|
|
3,368,470 |
|
|
|
3,006,524 |
|
|
F-13
Lime Energy Co.
Notes to Consolidated Financial Statements
Fair Value of Financial Instruments
The carrying amounts reported in the consolidated balance sheets for cash, accounts
receivable, accounts payable and accrued expenses approximate fair value because of the short-term
nature of these amounts. The Companys long-term debt approximates fair value based on instruments
with similar terms.
Stock-based Compensation
The Company has a stock incentive plan that provides for stock-based employee compensation,
including the granting of stock options and shares of restricted stock, to certain key employees.
The plan is more fully described in Note 26. Effective January 1, 2006, the Company adopted
Statement of Financial Accounting Standards No. 123(R), Share-based Payment (SFAS 123(R)),
which requires, among other things, that compensation expense be recognized for employee stock
options. Prior to the adoption of SFAS 123(R), the Company accounted for stock compensation using
the recognition and measurement principles of Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees, and related Interpretations. Under that method,
compensation expense was recorded only if the current market price of the underlying stock on the
date of grant exceeded the option exercise price. Since stock options are granted at exercise
prices that are greater than or equal the market value of the underlying common stock on the date
of grant under the Companys stock incentive plan, no compensation expense related to stock options
was recorded in the Consolidated Statements of Operations prior to January 1, 2006.
On January 1, 2006, the Company adopted SFAS No. 123(R), which requires companies to record
stock compensation expense for equity-based awards granted, including stock options and restricted
stock unit grants, over the service period of the equity-based award based on the fair value of the
award at the date of grant. During 2006, the Company recognized $4,828,955 of stock compensation
expense.
The following table illustrates the effect on the net loss and earnings per share if the
Company had applied the fair value recognition provisions of SFAS No. 123 to stock-based
compensation during the years ended December 31, 2005 and 2004:
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2005 |
|
|
2004 |
|
|
Net Loss, as reported |
|
$ |
(6,873,000 |
) |
|
$ |
(5,159,000 |
) |
|
|
|
|
|
|
|
|
|
Deduct: Stock-based employee
compensation expense included
in reported net loss |
|
|
|
|
|
|
|
|
Add: Total stock-based employee
compensation expense
determined under fair value
based method for awards |
|
|
(774,000 |
) |
|
|
(898,000 |
) |
|
|
|
|
|
|
|
|
|
|
Pro forma net loss |
|
$ |
(7,647,000 |
) |
|
$ |
(6,057,000 |
) |
|
|
|
|
|
|
|
|
|
Net loss per share: |
|
|
|
|
|
|
|
|
Basic and diluted as reported |
|
$ |
(2.73 |
) |
|
$ |
(3.68 |
) |
Basic and diluted pro forma |
|
$ |
(2.97 |
) |
|
$ |
(4.02 |
) |
|
F-14
Lime Energy Co.
Notes to Consolidated Financial Statements
For purposes of this pro forma disclosure the fair value of each option granted has been
estimated on the date of grant using the Black-Scholes option-pricing model with the following
weighted-average assumptions used for the grants:
|
|
|
|
|
|
|
|
|
December 31, |
|
2005 |
|
|
2004 |
|
|
Risk-free interest rate |
|
|
2.27 |
% |
|
|
1.04 |
% |
Expected volatility |
|
|
65 |
% |
|
|
72 |
% |
Expected life (years) |
|
|
9.1 |
|
|
|
9.1 |
|
Expected dividend yield |
|
|
0 |
% |
|
|
0 |
% |
|
The weighted-average fair value of options granted was $0.68 in 2005 and $1.16 in 2004.
For purposes of pro forma disclosures, the estimated fair value of the options is amortized over
the options vesting period.
Warranty Obligations
The Company warrants to the purchasers of its products that the product will be free of
defects in material and workmanship for one year from the date of installation. In addition, some
customers have purchased extended warranties for the Companys products that extend the base
warranty for up to ten years. The Company records the estimated cost that may be incurred under
its warranties at the time the product revenue is recognized based upon the relationship between
historical and anticipated warranty costs and sales volumes. The Company periodically assesses the
adequacy of its recorded warranty liability and adjusts the amounts as necessary. While the
Company believes that its estimated liability for product warranties is adequate and that the
judgment applied is appropriate, the estimated liability for product warranties could differ
materially from actual future warranty costs. See Note 12 for additional information about the
Companys warranty liability.
Insurance Reserves
In October 2005, the Company implemented a partially self-funded health insurance program for
its employees. Under the program the Company is responsible for the first $35,000 of each
individual claim, but its exposure is limited on a monthly and cumulative basis through insurance
provided by a third party insurance company. The Company accrues on a monthly basis an amount
sufficient to cover its maximum exposure under the program. It had accrued liabilities of $45,423
and $57,231 as of December 31, 2006 and 2005, respectively, to cover future claims under the
program. At the end of each plan year it assesses the adequacy of the reserve based on its claims
history and adjusts the reserve as necessary.
Recent Accounting Pronouncements
In June 2006, the Financial Accounting Standards Board (FASB) issued FASB Interpretation No.
48 (FIN 48), Accounting for Uncertainty in Income Taxes an interpretation of FASB Statement
No. 109, which establishes that the financial statement effects of a tax position taken or
expected to be taken in a tax return are to be recognized in the financial statements when it is
more likely than not, based on the technical merits, that the position will be sustained upon
examination. FIN 48 is effective for fiscal years beginning after December 15, 2006. The adoption
of FIN 48 is not expected to have a material impact on the Companys results of operations or its
financial position.
F-15
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 5 Acquisitions
On May 3, 2005, pursuant to an Agreement and Plan of Merger (the Merger Agreement) dated as
of April 28, 2005, by and among Lime Energy Co., MPG Acquisition Corporation, a wholly-owned
subsidiary of Lime Energy (Merger Subsidiary), and Maximum Performance Group, Inc. (MPG), Lime
Energy acquired MPG through the merger of MPG with and into Merger Subsidiary, with Merger
Subsidiary continuing as the surviving corporation under the name Maximum Performance Group, Inc.
The merger consideration, after post closing adjustments, consisted of $1,632,972 in cash (net
of transaction costs of $137,386 and cash acquired of $136,492), 166,148 shares of Lime Energy
common stock and 166,148 additional shares which have been placed in escrow. Total consideration
was $4,586,558, which consisted of $1,632,079 in cash, stock valued at $2,691,607 (based on the
average closing price the Companys stock for the five days before and after the announcement of
the transaction of $16.20 per share), $137,386 in transaction costs plus commissions paid to Delano
Securities in the form of 8,366 shares of common stock valued at $15.00 per share (the closing
price of the Companys stock on the effective date of the transaction). The cash portion of the
consideration was funded with proceeds from a private placement of the Companys common stock. (See
Note 23(j) for additional information on the private placement). If MPGs revenues during the two
years following the merger exceed an aggregate of $5,500,000 on a cumulative basis, the escrow
shares will be released to the former stockholders of MPG at the rate of 13.467 shares for every
$1,000 of revenue in excess of such amount. These shares will be valued at the market price at the
time they are released from escrow and will result in an increase in the goodwill associated with
the transaction. As of December 31, 2006 no shares had been released from the escrow.
As a result of the merger, Merger Subsidiary (which changed its name to Maximum Performance
Group, Inc. pursuant to the merger) became responsible for the liabilities of MPG, including
approximately $232,000 in payments owed to shareholders and affiliates and approximately $40,000 of
bank debt and capitalized lease obligations.
The assets acquired and liabilities assumed in the acquisition are as follows:
|
|
|
|
|
Accounts receivable |
|
$ |
292,102 |
|
Inventory |
|
|
326,122 |
|
Advances to suppliers |
|
|
472,689 |
|
Other current assets |
|
|
63,611 |
|
Net property and equipment |
|
|
121,608 |
|
Identifiable intangible assets |
|
|
2,432,600 |
|
Goodwill |
|
|
4,155,660 |
|
|
Total assets acquired |
|
|
7,864,392 |
|
|
|
|
|
|
Accounts payable |
|
|
928,509 |
|
Accrued expenses |
|
|
658,940 |
|
Deferred revenue |
|
|
1,011,616 |
|
Other current liabilities |
|
|
525,676 |
|
Notes payable |
|
|
289,587 |
|
|
Total liabilities acquired |
|
|
3,414,328 |
|
|
|
|
|
|
|
Net assets acquired |
|
|
4,450,064 |
|
|
|
|
|
|
Less valuation of shares issued for
acquisition |
|
|
(2,691,607 |
) |
Acquisition costs paid through the
issuance of common stock |
|
|
(125,485 |
) |
|
Total cash paid, including acquisition
costs, net of cash acquired |
|
$ |
1,632,972 |
|
|
F-16
Lime Energy Co.
Notes to Consolidated Financial Statements
Utilizing an independent third party valuation firm, the Company has assessed the fair
values of assets and liabilities of MPG and allocated the purchase price accordingly. For purposes
of the allocation, it has allocated $2,432,600 of the MPG purchase price to identifiable intangible
assets with definitive lives such as customer relationships, customer contracts and the eMac
technology and software. This amount has been capitalized and is being amortized over the estimated
useful life of the related identifiable intangible assets. The amounts capitalized and the
estimated useful life of the identifiable intangible assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
|
Estimated |
|
Asset Class |
|
Value |
|
|
Useful Life |
|
|
eMac technology and software |
|
$ |
1,979,900 |
|
|
|
4.0 |
|
Customer relationships |
|
|
267,800 |
|
|
|
9.7 |
|
Customer contracts |
|
|
184,900 |
|
|
|
1.0 |
|
|
On May 19, 2006, Lime Energy entered into an agreement by and among the Company, Parke
Acquisition, LLC, a wholly-owned subsidiary of Lime Energy (Merger Subsidiary), Parke P.A.N.D.A.
Corporation (Parke), Daniel W. Parke (a director of Lime Energy) and Daniel W. Parke and Michelle
A. Parke as Trustees under The Parke Family Trust, under which on June 30, 2006, the Company
acquired Parke pursuant to the merger of Parke with and into Merger Subsidiary, with Merger
Subsidiary continuing as the surviving corporation under the name Parke Industries, LLC.
The merger consideration consisted of $2,720,000 in cash and shares of common stock having the
value of $5 million (valuing each share at the $1.00 price used in the private placement of common
stock described under Note 23(p)) or 5,000,000 shares of Lime Energy common stock, all of which was
paid to The Parke Family Trust, the sole stockholder of Parke, which is beneficially owned by
Daniel Parke and his spouse, Michelle A. Parke, who are also the trustees of such Trust. As a
result of the merger, Merger Subsidiary became responsible for the liabilities of Parke, including
$400,000 due on its line of credit and approximately $46,000 in various vehicle loans. The
acquisition has been recorded using the purchase method of accounting.
Parke is an energy services provider specializing in the design, engineering and installation
of energy efficient lighting upgrades for commercial and industrial users. Parke is headquartered
in Glendora, California with sales offices in northern California, and at the time of the
acquisition it had 30 employees.
Dan Parke, the president and founder of Parke continues to serve as the President of Parke and
as of June 30, 2006 also assumed the position of President and Chief Operating Officer of Lime
Energy. Mr. Parke also continues to serve as a director of Lime Energy.
F-17
Lime Energy Co.
Notes to Consolidated Financial Statements
The assets acquired and liabilities assumed in the acquisition, based on a preliminary
allocation are as follows:
|
|
|
|
|
Cash |
|
$ |
1,710 |
|
Accounts receivable |
|
|
710,465 |
|
Inventory |
|
|
142,789 |
|
Other current assets |
|
|
7,088 |
|
Net property and equipment |
|
|
79,917 |
|
Identifiable intangible assets |
|
|
3,247,000 |
|
Goodwill |
|
|
5,584,874 |
|
|
|
|
|
|
Line of credit |
|
|
400,000 |
|
Accounts payable |
|
|
338,536 |
|
Accrued expenses |
|
|
89,571 |
|
Notes payable |
|
|
45,763 |
|
Other current liabilities |
|
|
368 |
|
Deferred tax liability |
|
|
1,034,000 |
|
Utilizing an independent third party valuation firm, the Company has assessed the fair
values of assets and liabilities of Parke and allocated the purchase price accordingly. For
purposes of the allocation, it has allocated $595,000 of the Parke purchase price to identifiable
intangible assets with definitive lives such as customer contracts, sales pipeline and the
non-compete agreement with Dan Parke. This amount has been capitalized and will be amortized over
the estimated useful life of the related identifiable intangible assets. It also allocated
$2,652,000 to the Parke trade name, which was determined to have an indefinite useful life and
therefore will not be amortized. Amortization of intangibles such as these are generally not
deductible for tax purposes. The amounts capitalized and the estimated useful life of the
identifiable intangible assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
|
Estimated |
|
Asset Class |
|
Value |
|
|
Useful Life |
|
|
Non-compete agreement |
|
$ |
336,000 |
|
|
2 Years |
|
Customer contracts |
|
|
206,000 |
|
|
1 month |
|
Sales pipeline |
|
|
53,000 |
|
|
5 months |
|
Trade name |
|
|
2,652,000 |
|
|
Indefinite |
|
|
On September 26, 2006, the Company entered into an Agreement and Plan of Merger with
Kapadia Acquisition, Inc. (Acquisition), a wholly-owned subsidiary of the Company, Kapadia
Consulting, Inc. (Kapadia) and Pradeep Kapadia. The parties filed the Certificate of Merger on
September 27, 2006, at which time the merger became effective, merging Kapadia with and into
Acquisition, with Acquisition continuing as the surviving corporation under the name Kapadia Energy
Services, Inc.
The merger consideration consisted of $1,250,000 in cash and 500,000 shares of Lime Energy
common stock. For accounting purposes the common stock was valued at $0.96 per share, the average
closing price of the stock for the 20 trading days immediately prior to the closing. The
acquisition was recorded using the purchase method of accounting.
F-18
Lime Energy Co.
Notes to Consolidated Financial Statements
Kapadia is an engineering firm that specializes in energy management consulting and energy
efficient lighting upgrades for commercial and industrial users. Kapadia has seven employees, is
headquartered in Peekskill, New York and has an office in Ventura, California.
The assets acquired and liabilities assumed in the acquisition are based on a preliminary
allocation as follows:
|
|
|
|
|
Cash |
|
$ |
47,329 |
|
Accounts receivable |
|
|
574,160 |
|
Inventory |
|
|
111,962 |
|
Other current assets |
|
|
122,451 |
|
Long term receivables |
|
|
17,713 |
|
Property and equipment |
|
|
16,430 |
|
Identifiable intangible assets |
|
|
1,129,000 |
|
Goodwill |
|
|
710,433 |
|
|
|
|
|
|
Accounts payable |
|
|
657,079 |
|
Accrued expenses |
|
|
299,316 |
|
Other current liabilities |
|
|
11,271 |
|
Utilizing an independent third party valuation firm, the Company has assessed the fair
values of assets and liabilities of Kapadia and allocated the purchase price accordingly. For
purposes of the allocation, it has allocated $1,129,000 of the Kapadia purchase price to
identifiable intangible assets with definitive lives such as sales backlog, sales pipeline, the
non-compete agreement with Pradeep Kapadia and Kapadias customer list. This amount has been
capitalized and will be amortized over the estimated useful life of the related identifiable
intangible assets. Amortization of intangibles such as these are generally not deductible for tax
purposes. The amounts capitalized and the estimated useful life of the identifiable intangible
assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
|
Estimated |
Asset Class |
|
Value |
|
|
Useful Life |
|
Sales backlog |
|
$ |
187,000 |
|
|
6 Months |
Sales pipeline |
|
|
708,000 |
|
|
12 Months |
Non-compete agreement |
|
|
87,000 |
|
|
2 Years |
Customer list |
|
|
147,000 |
|
|
10 Years |
|
The acquisitions of MPG, Parke and Kapadia were recorded using the purchase method of
accounting. Accordingly, the results of operations have been included in the consolidated
statement of operations since May 1, 2005 for MPG, since July 1, 2007 for Parke and since October
1, 2007 for Kapadia.
F-19
Lime Energy Co.
Notes to Consolidated Financial Statements
Unaudited pro forma results of operations for the years ended December 31, 2006, 2005 and 2004
for the Company assuming the acquisition of MPG took place on January 1, 2004, and the acquisition
of Parke took place on January 1, 2005 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Revenue: |
|
|
|
|
|
|
|
|
|
|
|
|
As Reported |
|
$ |
8,143,624 |
|
|
$ |
3,693,429 |
|
|
$ |
733,630 |
|
Pro-forma |
|
|
10,027,454 |
|
|
|
7,298,786 |
|
|
|
3,045,945 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss from Continuing Operations: |
|
|
|
|
|
|
|
|
|
|
|
|
As Reported |
|
$ |
(16,426,089 |
) |
|
$ |
(6,620,776 |
) |
|
$ |
(4,989,025 |
) |
Pro-forma |
|
|
(16,056,887 |
) |
|
|
(8,360,207 |
) |
|
|
(8,108,503 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and Diluted Loss per Share
from Continuing Operations: |
|
|
|
|
|
|
|
|
|
|
|
|
As Reported |
|
$ |
(1.52 |
) |
|
$ |
(2.65 |
) |
|
$ |
(3.62 |
) |
Pro-forma |
|
|
(1.26 |
) |
|
|
(2.72 |
) |
|
|
(4.33 |
) |
|
The pro forma operating results as if the Company had completed the acquisition of
Kapadia as of the beginning of 2006 are not significant to the Companys financial statements and
are not presented.
Note 6 Discontinued Operations
The Company adopted Statement of Financial Accounting Standards No. 144 (SFAS 144) at the
beginning of 2002. Among other things, SFAS 144 requires that the results of operations and
related disposal costs as well as the gain or loss on the disposal of a business unit be presented
on the statement of operations as a separate component of income before extraordinary items for all
periods presented.
On April 3, 2006, the Company completed a Stock Purchase Agreement with Eugene Borucki and
Denis Enberg (the Purchasers) in which it sold, effective as of March 31, 2006, all of the
outstanding capital stock of Great Lakes Controlled Energy Corporation to the Purchasers for 14,194
shares of Lime Energy common stock. The shares of Lime Energy common stock received from the
Purchasers were retired and became authorized but un-issued shares. For accounting purposes, the
Company valued these shares at $13.65 each, which is the average closing market price of the common
stock prior to entering into the letter of intent to sell Great Lakes. The Company did not incur a
gain or loss on the sale of Great Lakes, however it did incur an impairment charge of $242,830
during the year ended December 31, 2005 when it reduced the carrying value of the goodwill
associated with Great Lakes in anticipation of the sale.
F-20
Lime Energy Co.
Notes to Consolidated Financial Statements
The assets and liabilities of the discontinued operations that are included in the Companys
consolidated assets and liabilities are as follows:
|
|
|
|
|
|
|
|
|
Year ended December 31 |
|
2006 |
|
|
2005 |
|
|
Accounts receivable |
|
$ |
|
|
|
$ |
439,456 |
|
Other current assets |
|
|
|
|
|
|
45,287 |
|
|
Total current assets |
|
|
|
|
|
|
484,743 |
|
|
|
|
|
|
|
|
|
|
Net property plant and equipment |
|
|
|
|
|
|
16,028 |
|
|
|
|
|
|
|
|
|
|
|
Total assets |
|
|
|
|
|
$ |
500,771 |
|
|
|
Accounts payable |
|
$ |
|
|
|
$ |
73,825 |
|
Accrued expenses |
|
|
|
|
|
|
81,167 |
|
Current portion of long term debt |
|
|
|
|
|
|
2,160 |
|
Deferred revenue |
|
|
|
|
|
|
241,154 |
|
Customer deposits |
|
|
|
|
|
|
50,000 |
|
|
Total current liabilities |
|
|
|
|
|
|
448,306 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
$ |
|
|
|
$ |
448,306 |
|
|
The revenue and loss related to discontinued operations were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31 |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Revenue |
|
$ |
485,787 |
|
|
$ |
1,161,343 |
|
|
$ |
1,679,005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss |
|
|
(21,425 |
) |
|
|
(251,962 |
) |
|
|
(170,337 |
) |
|
Note 7 Inventories
Inventories consisted of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Raw materials |
|
$ |
1,010,995 |
|
|
$ |
948,045 |
|
Work in process |
|
|
3,700 |
|
|
|
|
|
Finished goods |
|
|
196,586 |
|
|
|
537,957 |
|
Reserve for obsolesce (1) |
|
|
(596,790 |
) |
|
|
(28,232 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
614,491 |
|
|
$ |
1,457,789 |
|
|
(1) |
|
Includes $553,909 reserve for obsolete EnergySaver inventory. |
F-21
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 8 Property and Equipment
Property and equipment consist of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Land |
|
$ |
205,000 |
|
|
$ |
205,000 |
|
Building |
|
|
997,381 |
|
|
|
984,396 |
|
Furniture |
|
|
82,946 |
|
|
|
75,005 |
|
Manufacturing equipment |
|
|
43,192 |
|
|
|
47,169 |
|
Office equipment |
|
|
342,906 |
|
|
|
288,271 |
|
Transportation equipment |
|
|
123,055 |
|
|
|
95,516 |
|
VNPP assets |
|
|
|
|
|
|
1,376,005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,794,480 |
|
|
|
3,071,362 |
|
Less accumulated depreciation |
|
|
593,472 |
|
|
|
557,166 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,201,008 |
|
|
$ |
2,514,196 |
|
|
Note 9 Goodwill and Other Intangible Assets
Goodwill represents the purchase price in excess of the fair value of assets acquired in
business combinations. Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and
Other Intangible Assets, requires the Company to assess goodwill for impairment at least annually
in the absence of an indicator of possible impairment and immediately upon an indicator of possible
impairment. The following is a summary of the Companys goodwill as of December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Building |
|
|
|
|
|
|
|
|
|
|
|
|
Control and |
|
|
Energy |
|
|
Energy |
|
|
|
|
|
|
Automation |
|
|
Technology |
|
|
Services |
|
|
Total |
|
|
Balance at January 1, 2005 |
|
$ |
416,573 |
|
|
|
|
|
|
|
|
|
|
|
416,573 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of Maximum
Performance Group, Inc. |
|
|
|
|
|
|
4,155,660 |
|
|
|
|
|
|
|
4,155,660 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairment charge |
|
|
(242,831 |
) |
|
|
|
|
|
|
|
|
|
|
(242,831 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2005 |
|
$ |
173,742 |
|
|
$ |
4,155,660 |
|
|
$ |
|
|
|
$ |
4,329,402 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale of Great Lakes Controlled
Energy Corporation |
|
|
(173,742 |
) |
|
|
|
|
|
|
|
|
|
|
(173,742 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of Parke P.A.N.D.A.
Corporation |
|
|
|
|
|
|
|
|
|
|
5,584,874 |
|
|
|
5,584,874 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of Kapadia Consulting,
Inc. |
|
|
|
|
|
|
|
|
|
|
710,433 |
|
|
|
710,433 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006 |
|
$ |
|
|
|
$ |
4,155,660 |
|
|
$ |
6,295,307 |
|
|
$ |
10,450,967 |
|
|
F-22
Lime Energy Co.
Notes to Consolidated Financial Statements
See Note 6 for additional information regarding the sale of Great Lakes Controlled Energy
and Note 5 for additional information regarding the acquisitions of Maximum Performance Group, Inc,
Parke P.A.N.D.A. Corporation and Kapadia Consulting, Inc. All goodwill related to the 2005 and
2006 acquisitions is non-deductible for income tax purposes.
The components of intangible assets as of December 31, 2006 and 2005 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
|
Average |
|
|
|
|
|
|
|
|
|
|
|
|
Remaining |
|
|
|
|
|
|
|
|
|
|
|
|
Life |
|
|
Gross Book |
|
|
Accumulated |
|
|
Net Book |
|
|
|
(months) |
|
|
Value |
|
|
Amortization |
|
|
Value |
|
|
As of December 31, 2006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Indefinite-lived assets |
|
|
|
|
|
$ |
2,652,000 |
|
|
$ |
|
|
|
$ |
2,652,000 |
|
Amortized intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Technology and software |
|
|
14.5 |
|
|
|
1,979,900 |
|
|
|
824,958 |
|
|
|
1,154,942 |
|
Customer relationships |
|
|
64.6 |
|
|
|
414,800 |
|
|
|
47,538 |
|
|
|
367,262 |
|
Customer contracts |
|
|
2.0 |
|
|
|
577,900 |
|
|
|
484,400 |
|
|
|
93,500 |
|
Non-complete agreements |
|
|
9.8 |
|
|
|
423,000 |
|
|
|
94,875 |
|
|
|
328,125 |
|
Sales pipe-line |
|
|
5.0 |
|
|
|
761,000 |
|
|
|
230,000 |
|
|
|
531,000 |
|
|
Total |
|
|
|
|
|
$ |
6,808,600 |
|
|
$ |
1,681,771 |
|
|
$ |
5,126,829 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2005 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Indefinite-lived assets |
|
|
|
|
|
$ |
|
|
|
|
|
|
|
$ |
|
|
Amortized intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Technology and software |
|
|
26.5 |
|
|
|
1,979,900 |
|
|
|
329,983 |
|
|
|
1,649,917 |
|
Customer relationships |
|
|
53.7 |
|
|
|
267,800 |
|
|
|
18,515 |
|
|
|
249,285 |
|
Customer contracts |
|
|
2.5 |
|
|
|
184,900 |
|
|
|
123,267 |
|
|
|
61,633 |
|
Non-complete agreements |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales pipe-line |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
$ |
2,432,,600 |
|
|
$ |
471,765 |
|
|
$ |
1,960,835 |
|
|
The aggregate amortization expense was $1,210,006 and $471,765 for the years ended
December 31, 2006 and 2005, respectively. The estimated amortization expense for intangible assets
for each of the next five years as of December 31, 2006, is as follows:
|
|
|
|
|
|
|
Amortization |
|
|
|
Expense |
|
|
2007 |
|
$ |
1,367,369 |
|
2008 |
|
|
650,613 |
|
2009 |
|
|
206,277 |
|
2010 |
|
|
41,295 |
|
2011 |
|
|
39,813 |
|
|
|
|
$ |
2,305,768 |
|
|
F-23
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 10 Asset Impairment
In accordance with SFAS 144 Accounting for the Impairment or Disposal of Long-Lived Assets,
the Company has reviewed the expected undiscounted future cash flows from the Companys northern
Illinois VNPP (Virtual Negawatt Power Plan) asset (the ComEd VNPP) and determined that the
asset is impaired. Assets utilized under the VNPP program are currently classified as property and
equipment.
In September 2003 the Company entered into a contract with Commonwealth Edison Company
(ComEd), a Chicago based utility, to provide up to 50 megawatts of curtailment capacity in
northern Illinois through December 2015. Under the contract the Company is paid on a quarterly
basis for providing the ability to reduce electricity demand as required by ComEd. To provide this
curtailment capacity the Company has installed 124 of its EnergySaver lighting controllers in 76
commercial and industrial sites at a cost of $1,267,360. This cost has been capitalized and was
being depreciated over the term of the contract as the capacity is made available. Through
December 31, 2006 the Company had recorded total depreciation of $76,566.
As a result of the high capital requirements of this program, changes in lighting technology
and changes in the Companys business plan the Company has decided to terminate further investment
in the program and has begun negotiations with ComEd seeking to convert the program into an energy
efficiency program. Under this proposed program the Company would receive credit for reducing
energy consumed through the use of the installed equipment on a steady state basis, rather than on
demand.
To determine if the ComEd VNPP asset was impaired, the Company analyzed the cash flows to be
generated assuming it is successful in restructuring the contract with ComEd under the proposed
terms. It then compared the present value of the projected cash flow stream, discounted at its cost
of capital, to the carrying value of the ComEd VNPP asset. The Company completed an initial
impairment test during the third quarter of 2006 at which time it determined that the asset was
partially impaired. Based on this initial analysis it reduced the carrying value of the VNPP asset
by $760,488 and recorded an impairment charge of an equal amount during the period. During the
fourth quarter of 2006 it updated its analysis to incorporate changes in the proposed terms of the
contract under renegotiation, along with revised operating cost assumptions and determined that the
asset was completely impaired. As a result it reduced the carrying value of the asset to $0 and
recorded an additional impairment charge of $423,037 during the fourth quarter of 2006. These
charges have been included in the loss attributable to the Companys Energy Technology segment in
Note 28 Business Segment Information.
F-24
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 11 Accrued Expenses
Accrued expenses are comprised of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Commissions |
|
$ |
56,590 |
|
|
$ |
124,736 |
|
Compensation |
|
|
149,320 |
|
|
|
133,463 |
|
Contract labor |
|
|
37,634 |
|
|
|
293,456 |
|
Insurance |
|
|
47,866 |
|
|
|
73,432 |
|
Interest |
|
|
31,059 |
|
|
|
71,216 |
|
Inventory costs |
|
|
85,290 |
|
|
|
|
|
Lease expense |
|
|
13,502 |
|
|
|
55,191 |
|
Legal |
|
|
47,408 |
|
|
|
14,456 |
|
Professional fees |
|
|
34,830 |
|
|
|
26,328 |
|
Real estate taxes |
|
|
41,689 |
|
|
|
73,135 |
|
Registration penalties |
|
|
345,583 |
|
|
|
|
|
Royalties |
|
|
5,700 |
|
|
|
12,900 |
|
Sales tax payable |
|
|
35,050 |
|
|
|
43,439 |
|
Warranty reserve |
|
|
196,783 |
|
|
|
228,331 |
|
Other |
|
|
123,473 |
|
|
|
78,682 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,251,777 |
|
|
$ |
1,228,765 |
|
|
Note 12 Warranty Liability
Changes in the Companys warranty liability are as follows:
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Balance, beginning of year |
|
$ |
228,331 |
|
|
$ |
151,008 |
|
Warranties issued |
|
|
54,790 |
|
|
|
116,298 |
|
Settlements |
|
|
(66,307 |
) |
|
|
(38,975 |
) |
Adjustments (1) |
|
|
(20,031 |
) |
|
|
|
|
|
Balance, end of year |
|
$ |
196,783 |
|
|
$ |
228,331 |
|
|
(1) |
|
Reflects the sale of Great Lakes Controlled Energy |
Note 13 Line of Credit
On September 11, 2003 the Company closed on a credit facility with Laurus Master Fund, Ltd.
(Laurus). The facility, which was subsequently amended on August 31, 2004, February 28, 2005 and
November 28, 2005, included a $1,000,000 convertible term loan and a $2,000,000 convertible
revolving line of credit.
F-25
Lime Energy Co.
Notes to Consolidated Financial Statements
On June 29, 2006, Laurus exercised its right to convert all of the outstanding balance on the
Companys revolving line of credit of $943,455 plus $7,410 in accrued interest into 950,865 shares
of the Companys common stock, and the line was terminated. The revolving note contained
antidilution provisions which automatically adjusted the conversion price of the note to $1.00 per
share, the price at which the Company issued shares of common stock in the June 2006 PIPE
Transaction (as described in Note 21). Laurus (if it still chose to convert the note) would have
received 59,902 shares of common stock upon conversion of the revolving note utilizing the
conversion price prior to this adjustment, but as a result of the adjustment it received 943,455
shares. The market value of the 883,553 additional shares it received as a result of the
adjustment (capped at the amount converted including the accrued interest), was recorded as
interest expense in the amount of $950,865. On June 29, 2006, the market price of the Companys
common stock was $1.15 per share, as a result the Company recognized an additional $1,112 of
non-cash interest expense calculated as the difference between the market price ($1.15) and the
conversion price ($1.00) of the 7,410 shares of common stock issued in satisfaction of the accrued
interest expense.
Note 14 Convertible Term Loans
On September 11, 2003, the Company entered into a $1,000,000 convertible Term Loan with Laurus
Master Fund, Ltd., which was subsequently amended on August 31, 2004. The term loan was secured by
all of the Companys assets except its real estate, was convertible into the Companys common stock
under certain circumstances at Laurus or the Companys option, required monthly payments of
principal and interest and was schedule to mature on September 1, 2006. Warrants valued at
$163,400 were issued to Laurus in conjunction with the Term Loan. The value of these warrants were
recorded as a discount to the Term Loan and were being amortizing over the term of the loan using
the effective interest method.
In recording the transaction, the Company allocated the value of the proceeds to the Term Loan
and warrants based on their relative fair values. In doing so, it determined that the Term Loan
contained a beneficial conversion feature since the fair market value of the common stock issuable
upon conversion of the Term Loan exceeded the value of $836,600 allocated to the Term Loan on the
date of issuance. The Term Loan was initially convertible into 31,447 shares of common stock,
which at the then current market price of $30.75 per share was worth $966,981. The difference
between the market value of the shares issuable upon conversion and the value allocated to the Term
Loan of $180,381 was considered to be the value of the beneficial conversion feature. The value of
the beneficial conversion feature was also recorded as a discount to the term note and was being
amortized over the term of the loan using the effective interest method.
Additional warrants were issued to Laurus in connection with the revolving line of credit
discussed in Note 13, which was part of the same credit facility as the Term Loan. The value of
these warrants of $320,000, in addition to $58,000 assigned to the value of warrants issued to an
investment bank as part of its commission on the transaction and $158,228 in other fees and
expenses related to the transaction were recorded as capitalized costs of financing and were being
amortized using the effective interest method over the term of the Term Loan.
On November 26, 2003, Laurus converted $52,346 of principal and $654 of accrued interest into
1,667 shares of the Companys common stock, and during January 2004 it converted an additional
$270,864 of principal and $4,736 of accrued interest into 8,667 of common stock.
F-26
Lime Energy Co.
Notes to Consolidated Financial Statements
On November 22, 2005, the Company and Laurus entered into a securities purchase agreement
providing for a new four year, $5 million convertible term loan (the November 2005 Term Loan).
The Company received unrestricted access to the proceeds from the November 2005 Term Loan on
November 25, 2005. This term loan was also secured by all of the Companys assets except its real
estate, was convertible into the Companys common stock under certain circumstances at Laurus or
the Companys option, required monthly payments of principal and interest and was scheduled to
mature on November 1, 2009. None of the November 2005 Term Loan was ever converted to common
stock.
As part of the November 2005 Term Loan the Company agreed to split any cash flow generated by
the Companys VNPP and Shared Savings projects, after the payment of related debt, to the extent
any portion of the November 2005 Term Loan was used to fund such Projects. In addition, the
Company agreed to continue to pay a portion of the Project Cash Flow to Laurus on a declining basis
for five years after repayment of the November 2005 Term Loan.
In connection with the November 2005 Term Loan, Laurus received warrants to purchase shares of
the Companys common stock valued at $920,000. The value of these warrants were recorded as a
discount to the loan and were being amortized over the life of the loan utilizing the effective
interest method. In addition, fees and expenses related to the transaction totaling $271,431were
recorded as capitalized financing costs and were being amortized over the life of the loan
utilizing the effective interest method.
On June 29, 2006, the Company repaid the outstanding balances on the two term loans held by
Laurus, along with accrued interest thereon and related prepayment penalties and fees. The total
cash payment to Laurus made on June 29, 2006 was as follows:
|
|
|
|
|
|
|
Payment |
|
|
Principal |
|
$ |
5,038,030 |
|
Interest through the date of repayment |
|
|
40,568 |
|
Prepayment penalties |
|
|
516,071 |
|
Related fees |
|
|
6,749 |
|
|
|
|
|
|
|
Total payment |
|
$ |
5,601,418 |
|
|
In conjunction with the repayment Laurus agreed to 1) waive the payment of liquidated
damages due as a result of the Companys failure to register shares of its stock issuable upon
conversion of the November 2005 Term Loan as required in the related Securities Purchase Agreement,
and 2) terminate the requirement that the Company pay it a portion of the cash flows generated by
VNPP and Shared Savings projects following the repayment of the November 2005 Term Loan, in
exchange for receipt of 161,096 and 231,500 shares of the Companys common stock, respectively.
The Company valued these shares at $1.15 per share (the market price on the date of issue) and
charged $266,225 to interest expense and $185,261 to selling general & administrative expense
during 2006.
Upon the repayment of the term loans the Company was required to recognize as interest expense
the unamortized balance of the discount and capitalized financing costs related to these loans of
$777,996 and 231,281, respectively.
F-27
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 15 Notes Payable
As part of the acquisition of Maximum Performance Group, Inc., the Company assumed a $150,000
demand note payable to Cinergy Ventures, LLC. The note accrues interest at the rate of prime
(8.25% as of December 31, 2006) plus 3%. As of December 31, 2006 the Company had accrued interest
payable of $27,096 related to the Note.
Note 16 Long Term Debt
The Companys long term debt consists of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2006 |
|
|
2005 |
|
|
Mortgage note to American Chartered Bank, prime (8.25% as of
December 31, 2006) plus 1/2%, payable in monthly
installments of $3,000, plus interest until January 2008.
A final payment of $487,000 is due in February 2008.
This note is collateralized by the building and land. |
|
$ |
526,000 |
|
|
$ |
562,000 |
|
|
|
|
|
|
|
|
|
|
Convertible term note to Laurus Master Fund (less debt discount
of $7,768, as of December 31, 2005). Repaid in full on
June 29, 2006. (see Note 14) |
|
|
|
|
|
|
284,022 |
|
|
|
|
|
|
|
|
|
|
Convertible term note to Laurus Master Fund (less debt discount
of $890,641 as of December 31, 2005). Repaid in full on
June 29, 2006. (see Note 14) |
|
|
|
|
|
|
4,109,359 |
|
|
|
|
|
|
|
|
|
|
Various other notes |
|
|
41,091 |
|
|
|
24,651 |
|
|
|
|
|
|
|
|
|
|
|
Total debt |
|
|
567,091 |
|
|
|
4,980,032 |
|
|
|
|
|
|
|
|
|
|
Less current portion |
|
|
46,699 |
|
|
|
651,313 |
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt |
|
$ |
520,392 |
|
|
$ |
4,328,719 |
|
|
F-28
Lime Energy Co.
Notes to Consolidated Financial Statements
The aggregate amounts of long-term debt maturing in future years as of December 31, 2006,
are as follows:
|
|
|
|
|
|
|
Aggregate |
|
|
|
Maturities |
|
|
2007 |
|
$ |
46,699 |
|
2008 |
|
|
498,484 |
|
2009 |
|
|
5,806 |
|
2010 |
|
|
6,158 |
|
2011 |
|
|
6,531 |
|
2112 |
|
|
3,413 |
|
|
|
|
$ |
567,091 |
|
|
Note 17 Interest Expense
Interest expense is comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31 |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Line of credit (Note 13) |
|
$ |
50,344 |
|
|
$ |
138,097 |
|
|
$ |
|
|
Note payable (Note 15) |
|
|
16,563 |
|
|
|
9,563 |
|
|
|
|
|
Mortgage (Note 16) |
|
|
46,495 |
|
|
|
39,181 |
|
|
|
30,200 |
|
Convertible term loans (Note 14) |
|
|
249,065 |
|
|
|
87,709 |
|
|
|
43,917 |
|
Other |
|
|
1,772 |
|
|
|
3,027 |
|
|
|
|
|
Amortization of deferred issuance
costs and debt discount (Note 14) |
|
|
1,175,970 |
|
|
|
165,413 |
|
|
|
574,437 |
|
Value of warrant issued to
Laurus (Note 23(i)) |
|
|
|
|
|
|
160,000 |
|
|
|
|
|
Prepayment penalty (Note 14) |
|
|
516,071 |
|
|
|
|
|
|
|
|
|
Value of adjustment in conversion
price (Note 14) |
|
|
950,865 |
|
|
|
|
|
|
|
|
|
Termination of post re-payment
interest obligation (Note 14) |
|
|
266,225 |
|
|
|
|
|
|
|
|
|
|
Total Interest Expense |
|
|
3,273,370 |
|
|
|
602,990 |
|
|
|
648,554 |
|
|
F-29
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 18 Lease Commitments
The Company leases a facility in Glendora, California from a Company controlled by Dan Parke,
the Companys President and a director. Total rent expense for this facility amounted to $21,000
for 2006. The Company also leases offices in New York and California from unrelated third parties
on which it paid a total of $147,505 during 2006, and prior to the sale of Great Lakes it leased a
facility in Elk Grove Village, Illinois for Great Lakes from the two former owners of Great Lakes,
both of whom were employed by the Company at the time. It paid $17,400 in rent for this facility
during 2006.
Future minimum rentals to be paid by the Company as of December 31, 2006 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Related |
|
|
Unrelated |
|
|
|
|
Year ending December 31, |
|
Party |
|
|
Party |
|
|
Total |
|
|
2007 |
|
$ |
43,260 |
|
|
$ |
97,543 |
|
|
$ |
140,803 |
|
2008 |
|
|
44,558 |
|
|
|
68,083 |
|
|
|
112,641 |
|
2009 |
|
|
45,895 |
|
|
|
69,785 |
|
|
|
115,680 |
|
2010 |
|
|
|
|
|
|
53,314 |
|
|
|
53,314 |
|
|
Total |
|
$ |
133,713 |
|
|
$ |
288,725 |
|
|
$ |
422,438 |
|
|
Note 19 Income Taxes
The composition of income tax expense (benefit) is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31 |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Deferred |
|
|
|
|
|
|
|
|
|
|
|
|
Federal |
|
$ |
(5,453,000 |
) |
|
$ |
(2,272,000 |
) |
|
$ |
(2,025,000 |
) |
State |
|
|
(962,000 |
) |
|
|
(401,000 |
) |
|
|
(358,000 |
) |
Change in valuation allowance |
|
|
6,415,000 |
|
|
|
2,673,000 |
|
|
|
2,383,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Benefit for income taxes |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
Significant components of the Companys deferred tax asset are as follows:
|
|
|
|
|
|
|
|
|
December 31 |
|
2006 |
|
|
2005 |
|
|
Deferred tax asset consisting principally of net operating losses |
|
$ |
28,368,000 |
|
|
$ |
22,454,000 |
|
Deferred tax liabilities, principally related to non-deductible
identifiable intangible assets |
|
|
(2,000,000 |
) |
|
|
(765,000 |
) |
|
|
|
|
|
|
|
|
|
Less valuation allowance |
|
|
(27,402,000 |
) |
|
|
(21,689,000 |
) |
|
|
|
|
|
|
|
|
|
|
Total net deferred tax liability |
|
$ |
(1,034,000 |
) |
|
$ |
|
|
|
F-30
Lime Energy Co.
Notes to Consolidated Financial Statements
The Company has recorded a valuation allowance equaling the deferred tax asset due to the
uncertainty of its realization in the future. At December 31, 2006, the Company had U.S. federal
net operating loss carryforwards available to offset future taxable income of approximately $64
million, which expire in the years 2018 through 2026. Under Section 382 of the Internal Revenue
Code (IRC) of 1986, as amended, the utilization of U.S. net operating loss carryforwards may be
limited under the change in stock ownership rules of the IRC. As a result of ownership changes as
defined by Section 382, which have occurred at various points in our history, we believe
utilization of our net operating loss carryfowards will likely be significantly limited under
certain circumstances.
The reconciliation of income tax expense (benefit) to the amount computed by applying the
federal statutory rate is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Income tax (benefit) at federal statutory rate |
|
$ |
(5,592,000 |
) |
|
$ |
(2,337,000 |
) |
|
$ |
(1,754,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
State taxes (net of federal tax benefit) |
|
|
(823,000 |
) |
|
|
(336,000 |
) |
|
|
(258,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Other nondeductible expenses |
|
|
|
|
|
|
|
|
|
|
34,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
|
|
|
|
|
|
|
|
|
(404,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in valuation allowance |
|
|
6,415,000 |
|
|
|
2,673,000 |
|
|
|
2,382,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax expense (benefit) |
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
The Company has recorded a valuation allowance of $27.4 million due to the uncertainty of
future utilization of the deferred tax assets. In assessing the adequacy of the valuation
allowance, the Company determined that there existed a deferred tax liability related to an
indefinite-lived intangible, for which the expected reversal was indeterminate. Due to uncertainty
of whether this deferred tax liability would reverse prior to expiration of the net operating
losses and other deferred tax assets, this liability has not been netted against the Companys
deferred tax assets, resulting in a net deferred tax liability of approximately $1 million as of
December 31, 2006.
Note 20 Commitments and Contingencies
a) |
|
Pursuant to the Consolidated Agreement dated January 8, 2001, among the Company, Giorgio
Reverberi (Reverberi), the owner of the patent relating to certain technologies used in the
EnergySaver, and Joseph Marino, former Chairman and CEO of Lime Energy (who assigned the
rights to the Company), the Company agreed to pay Reverberi a royalty of $200 for each
EnergySaver unit made by or for the Company and sold by the Company and Mr. Marino is also
paid a royalty of $100 for each unit sold by the Company. The term of the license granted to
the Company expires when the last of Reverberis patents expires, which the Company expect to
be in November, 2017. The license may be terminated by Reverberi if the Company materially
breaches its terms and fails to cure the breach within 180 days after Reverberi gives the
Company written notice of the breach. Approximately $37,200, $60,000 and $34,000 of expense
was incurred under the agreement |
F-31
Lime Energy Co.
Notes to Consolidated Financial Statements
|
|
for the years ended December 31, 2006, 2005 and 2004, respectively. The Company has accrued
$5,700 and $12,900 in royalties payable at December 31, 2006 and 2005, respectively. |
|
b) |
|
The Company entered into employment agreements with certain officers and employees expiring
in 2009. Total future commitments under these agreements are as follows: |
|
|
|
|
|
Year ending December 31, |
|
|
|
|
|
2007 |
|
$ |
1,290,000 |
|
2008 |
|
|
873,750 |
|
2009 |
|
|
23,750 |
|
|
|
|
|
|
|
Total |
|
$ |
2,187,500 |
|
|
c) |
|
The Company is involved in certain litigation in the normal course of its business.
Management intends to vigorously defend these cases. In the opinion of management, the
litigation now pending will not have a material adverse affect on the consolidated financial
statements of the Company. |
Note 21 The June 2006 PIPE Transaction
On June 29, 2006, the Company entered into a securities purchase agreement with a group of 17
investors (the PIPE Investors) pursuant to which it issued to such purchasers an aggregate of
17,875,000 shares of its common stock at a price of $1.00 per share for total gross proceeds of
$17,875,000 (the PIPE Transaction). Ten of the PIPE Investors, who purchased an aggregate of
13,900,000 shares of common stock in the PIPE Transaction, were holders of Series E Convertible
Preferred stock, including three members of the Companys board of directors (who, together with
members of their families, purchased 7,700,000 shares of common stock in the PIPE Transaction).
Proceeds from the transaction were used to repay the Companys outstanding convertible debt and to
fund the cash portion of the consideration of the Parke P.A.N.D.A. Corporation acquisition, with
the balance to be used for working capital purposes and possible future acquisitions. $1,250,000
was used for the acquisition of Kapadia Consulting, Inc. (see Notes 5 and 23(w)).
A provision of the June 2006 PIPE Transaction required the Company to file and have declared
effective by November 3, 2006, a registration statement registering the shares issued as part of
the PIPE Transaction. To the extent that it failed to have the registration statement declared
effective by this date, it was required to pay penalties to the PIPE investors at the rate of 1%
per month of the purchase price paid by the investors. Largely as a result of the questions
regarding the need to amend its Certificate of Incorporation to effect the reverse split of its
stock (as discussed in Note 25), the Company was not able to have the registration statement
declared effective until February 14, 2007. All of the investors in the PIPE Transaction agreed to
accept shares of the Companys common stock as payment of this registration penalty. As of
December 31, 2006 the Company had accrued $345,583 in penalties related to its failure to register
these shares. The accrued penalties, along with $268,125 of penalties for the period from January
1, 2007 through February 14, 2007 (when the registration was declared effective), were satisfied
through the issuance of 613,708 shares of common stock in January and February 2007.
F-32
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 22 The Series E Conversion
In connection with the June 2006 PIPE Transaction, the holders of the Series E Preferred
agreed to convert all of their shares of Series E Preferred into common stock, and agreed that,
upon the conversion, all agreements related to the Preferred Stock would be terminated. As a
result of the conversion, all special approval rights related to the Preferred Stock, including the
right to a liquidation preference, were terminated. All of the shares of Series E Convertible
Preferred which were converted to common stock have been cancelled.
Prior to the June 2006 PIPE Transaction, the Series E Preferred stock was convertible into the
Companys common stock at $15.00 per share. However, the Series E Preferred contained
anti-dilution provisions which required automatic reduction of the conversion price of the Series E
Preferred to the price of a new issuance if the Company issued stock or securities convertible into
common stock at a price below the Series E Preferred conversion price then in effect. Because the
Company issued common stock in the June 2006 PIPE Transaction at $1.00 per share, the Series E
Preferred conversion price was automatically reduced to $1.00 per share. Prior to this adjustment
the holders of the Series E Convertible Preferred stock would have been entitled to 1,574,027
shares of common stock on conversion, whereas as a result of this adjustment on conversion they
actually received 21,648,346 shares of common stock. The market value of the additional 20,074,319
shares issuable upon conversion of the Series E was recorded as a non-cash deemed dividend in the
amount of $23,085,467 on June 29, 2006.
Note 23 Equity Transactions
2004 Transactions
a) |
|
During fiscal 2004, holders of the Companys Series A Convertible Preferred Stock converted
145,000 shares of Series A into 96,667 shares of common stock. All shares of the Companys
Series A Convertible Preferred Stock were originally issued in private placements to
accredited investors pursuant to Regulation D which took place in 2001, or were subsequently
issued as dividends on outstanding shares of Series A Preferred. |
b) |
|
Also during 2004, holders of the Companys Series E Convertible Preferred Stock converted
5,067 shares of Series E Convertible Preferred Stock into 33,780
shares of common stock. All shares of the Series E Convertible Preferred Stock were originally issued in a private
transactions described under c) below not involving a public offering, or were subsequently
issued as dividends on outstanding shares of Series E Preferred. |
c) |
|
On March 19, 2004, the Company entered into a securities purchase agreement with a group of
four mutual funds managed by Security Benefit Group, Inc. whereby it issued to such
purchasers, in exchange for $11,000,000 in gross proceeds, a package of securities that
included 333,333 shares of the Companys common stock and 5 year warrants to purchase 116,667
additional shares of common stock at $36.30 per share. The Company used $7,000,006 of the
proceeds to facilitate the Redemption and Exchange (described below). The balance of the
funds were used to pay transaction costs and for general corporate purposes. |
F-33
Lime Energy Co.
Notes to Consolidated Financial Statements
|
|
On March 22, 2004, the Company entered into a Redemption and Exchange Agreement with the holders
of its outstanding Series A Convertible Preferred Stock, Series C Convertible Preferred Stock
and Series D Convertible Preferred Stock (collectively, the Old Preferred Stock) under which
it redeemed 538,462 shares of the outstanding Old Preferred Stock which were convertible into
358,975 shares of common stock, at a redemption price equivalent to $19.50 per common share for
a total cost of $7,000,006, and exchanged 210,451 shares of its newly authorized Series E
Convertible Preferred Stock (the Series E Preferred) for the remaining 2,104,509 outstanding shares of the Old Preferred Stock (the Exchange) on a 1 for 10 basis (one share of Series E
Preferred exchanged for 10 shares of Old Preferred Stock). All of the Old Preferred Stock has
been cancelled. As part of the Exchange, all outstanding warrants to purchase shares of Series
D Convertible Preferred Stock were exchanged for similar warrants to purchase shares of Series E
Preferred and the expiration date was changed from June 30, 2004 to December 31, 2004. Such
Series E warrants issued were exercisable for an aggregate of 3,750 shares of Series E Preferred
at a price of $100 per share. They replaced warrants exercisable for 37,500 shares of Series D
Preferred at an exercise price of $10 per share. |
|
|
|
Except as with respect to dividends, the Series E Preferred had substantially the same rights as
the shares of Old Preferred Stock that it replaced, including: |
|
|
|
special approval rights with respect to certain actions by the Company; |
|
|
|
|
a conversion price of $15.00 per share; |
|
|
|
|
the right to elect up to four directors; |
|
|
|
|
the right to vote with the holders of common stock on an as converted basis on all
matters on which holders of the Companys common stock are entitled to vote, except
with respect to the election of directors or as otherwise provided by law; |
|
|
|
|
a right of first offer on the sale of equity in a private transaction; and |
|
|
|
|
anti-dilution protection that would adjust the conversion price in the event that
the Company issued equity at a price which was less than the conversion price . |
|
|
The Series E Preferred accrued dividends at a rate of 6% (versus 10% for the Old Preferred) per
annum, which at the Companys option could be paid by issuing more shares of Series E Preferred. |
|
|
|
Fees and expenses related to the transactions totaled $910,393. |
|
d) |
|
During fiscal 2004, the Company received proceeds of $485,000 in connection with the exercise
of 12,333 common stock warrants and 3,000 Series E Convertible Preferred warrants. The
proceeds from the exercise of these warrants was used for general corporate purposes. |
|
e) |
|
During fiscal 2004, the Company issued warrants to purchase 8,000 shares of its common stock
at prices between $15.00 and $23.25 per share to consultants for services received. The
warrants were valued at $72,500 using a modified Black-Sholes option pricing model utilizing
the following assumptions: risk free rate of 1.607% to 2.772%, expected volatility of 42.5 to
53.6%, expected dividend of $0 and expected life of 2 to 3 years. The value of the warrants
was charged to operations during the period. |
|
f) |
|
During fiscal 2004, Laurus Master Fund Ltd. converted $270,864 of principal and $4,736 of
accrued interest on the Companys outstanding $1,000,000 Convertible Term Note (issued in
September, 2003) into 8,667 shares of the Companys common stock. |
F-34
Lime Energy Co.
Notes to Consolidated Financial Statements
g) |
|
During fiscal 2004, the Company satisfied the accrued dividend on its preferred stock of
$1,636,780 though the issuance of 16,368 shares of its Series E Preferred stock. |
2005 Transactions
h) |
|
During 2005, two holders of the Companys Series E Convertible Preferred Stock converted
2,167 shares of Series E Convertible Preferred Stock into 14,447 shares of common stock. |
|
i) |
|
During 2005, the Company issued the following warrants: |
|
|
|
On February 10, 2005, Delano Group Securities, LLC received a five year warrant to
purchase 2,000 shares of common stock at $15.45 per share, pursuant to an agreement to
provide investment banking services. Delano Group Securities, LLC, was a company owned
by Mr. David Asplund, one of the Companys directors and effective January 23, 2006 the
Companys CEO. The warrant was valued at $13,200 using a modified Black-Sholes option
pricing model utilizing the following assumptions: risk free rate of 2.53%, expected
volatility of 45.3%, expected dividend of $0 and expected life of 5 years. The value
of the warrant was charged to operations during the period. |
|
|
|
|
M&A Railroad and Electric Supply, LLC received a three year warrant to purchase
6,667 shares of common stock at $16.95 per share to as part of a legal settlement.
This warrant was valued at $35,000 using a modified Black-Sholes option pricing model
utilizing the following assumptions: risk free rate of 2.767%, expected volatility of
45.0%, expected dividend of $0 and expected life of 3 years. Of the total warrant
value $33,000 was charged to operations during the forth quarter of 2004 and $2,000 was
charged to operations during the first quarter of 2005. |
|
|
|
|
On April 28, 2005, Laurus Master Fund, Ltd. received a warrant to purchase 26,667
shares of common stock in exchange for its consent to the Company entering into the
PIPE Transaction described under k) below and acquiring MPG, as well as waiving its
right to adjust the conversion price on the Companys convertible term note and
convertible revolving note. The warrant has an exercise price of $15.00 per share and
a term of five years. The warrant was valued at $160,000 using a modified Black-Sholes
option pricing model utilizing the following assumptions: risk free rate of 2.941%,
expected volatility of 43.7%, expected dividend of $0 and expected life of 5 years.
The value of the warrant was charged to interest expense during 2005. |
|
|
|
|
Various consultants received warrants to purchase 27,333 shares of the Companys
common stock with exercise prices between $15.00 and $15.45 per share and terms of
three to ten years. The warrants were valued collectively at $144,600 using a modified
Black-Sholes option pricing model utilizing the following assumptions (depending on the
warrant being valued): risk free rate of 2.366% to 3.029%, expected volatility of 40.7%
to 46.5%, an expected dividend of $0 and an expected life of 3 to 10 years. The values
of the warrants were charged to operations during the 2005. |
F-35
Lime Energy Co.
Notes to Consolidated Financial Statements
j) |
|
On April 28, 2005 the Company issued to five (5) institutional investors, for an aggregate
gross purchase price of $5,625,000, 416,667 shares of its common stock and 42 month warrants
to purchase 208,333 additional shares of common stock at $15.75 per share. Net proceeds from
the transaction were approximately $5,413,000, of which approximately $1,644,000 was used to
fund the acquisition of Maximum Performance Group, Inc. The balance of the proceeds were used
to pay transaction costs and for general corporate purposes. |
|
|
|
Delano Group Securities LLC and Mr. David Valentine acted as advisors on the transaction. The
Company paid Delano Group Securities LLC $16,250 and 3,333 shares of common stock and Mr.
Valentine 3,333 shares of common stock for their services. Mr. Asplund and Mr. Valentine both
were serving as directors of Lime Energy at that time. Subsequently, on January 23, 2006, Mr.
Asplund became its CEO. |
|
k) |
|
On May 3, 2005 the Company issued 166,148 shares of common stock in connection with the
acquisition of Maximum Performance Group, Inc. In addition, 166,148 shares of common stock
are being held in escrow and will be issued in the event MPG meets specific performance
criteria during the two year period following the acquisition. No escrow shares have been
released as of December 31, 2006. |
|
|
|
Delano Group Securities LLC acted as an advisor on the acquisition of MPG and was paid $82,176
and 8,366 shares of common stock for its services. These shares were valued at $15.00 per
share, which was the closing market price of the Companys common stock on April 28, 2005. In
addition, the Company may issue up to 8,366 additional shares of common stock to Delano if any
of the MPG shares held in escrow are released. Delano Group Securities LLC is owned by Mr.
David Asplund, one of Lime Energys directors and effective January 23, 2006, its CEO. |
|
l) |
|
On November 22, 2005 the Company entered into a securities purchase agreement with Laurus
Master Fund, Ltd. whereby the Company issued to Laurus a $5 million secured convertible term
note and warrants to purchase 133,333 shares of its common stock at $17.40 per share anytime
prior to November 22, 2012. The warrants were valued at $920,000 using a modified
Black-Sholes option pricing model utilizing the following assumptions: risk free rate of
4.034%, expected volatility of 67.4%, expected dividend of $0 and expected life of 7 years.
The value of the warrants was recorded as a discount to the term loan and was to be amortized
over the term of the underlying debt utilizing the effective interest method. |
|
|
|
This term loan was retired through a cash payment on June 29, 2006. No portion of the term loan
was converted to common stock while the note was outstanding. |
|
m) |
|
During the year ended December 31, 2005, the Companys Board of Directors declared dividends
payable on its Series E Convertible Preferred Stock of $1,366,900. The dividends were paid
with 13,699 additional shares of Series E Convertible Preferred Stock. |
F-36
Lime Energy Co.
Notes to Consolidated Financial Statements
2006 Transactions
n) |
|
During the first three months of 2006, two holders of the Companys Series E Convertible
Preferred Stock converted a total of 7,130 shares of Series E Convertible Preferred Stock into
47,533 shares of common stock. |
|
o) |
|
Effective March 31, 2006, the Company received 14,194 shares of its common stock as part of
the sale of its Great Lakes Controlled Energy Corporation subsidiary to Messrs. Eugene Borucki
and Denis Enberg. These shares have been returned to the status of authorized, unissued
shares of common stock. |
|
p) |
|
On June 29, 2006 the Company entered into a Securities Purchase Agreement and issued to 17
investors, including 10 existing holders of its Series E Convertible Stock, for an aggregate
purchase price of $17,875,000, 17,875,000 shares of its common stock (the PIPE Transaction).
The Company used $2.72 million of the proceeds to fund the cash consideration for the
acquisition of Parke P.A.N.D.A. Corporation, approximately $5.6 million to prepay two
convertible secured term loans and related prepayment penalties and accrued interest owed to
Laurus Master Fund Ltd., $400,000 to pay off Parkes line of credit, and $115,107 for
transaction related costs. The balance of the gross proceeds of approximately $9 million has
been and will be used for working capital and other general corporate purposes, except that
$1,250,000 was used to pay the cash portion of the acquisition price for Kapadia Consulting,
Inc. on September 27, 2006, as described under w) below. |
|
q) |
|
Concurrently with the closing of the PIPE Transaction pursuant to the Securities Purchase
Agreement described in p) above, the holders of all of the Companys outstanding Series E
Preferred Stock converted such shares into 21,648,346 shares of its common stock. Please
refer to Note 22 for additional information regarding this conversion. |
|
r) |
|
A number of the Companys common stock warrants contain antidilution provisions that
automatically adjust the exercise price on the warrants to the issuance price of any security
convertible into the Companys common stock if the price of the newly issued security is less
than the exercise price on the holders warrant. Prior to the PIPE Transaction, the exercise
price on these warrants ranged from $13.50 per share to $15.00 per share. The issuance of
common stock in the PIPE Transaction caused the exercise price on these warrants to
automatically be reduced to $1.00 per share. Utilizing a modified Black-Scholes option
pricing model, the Company determined that the increase in value of these warrants that
resulted from this adjustment was $297,868, which the Company recorded as a non-cash deemed
dividend on June 29, 2006. |
|
s) |
|
Immediately following completion of the PIPE Transaction and prepayment of the Laurus term
loans, Laurus elected to convert the entire outstanding balance on its revolving line of
credit, along with accrued interest thereon, into 950,865 shares of the Companys common
stock. In addition, in consideration of the issuance issuance of 392,596 shares of common
stock, Laurus agreed to (i) waive the payment of liquidated damages due as a result of the
Companys failure to register shares of common stock into which the November 2005 $5 million
term loan was convertible, and (ii) terminate the requirement that the Company pay it a
portion of the cash flows generated by VNPP projects for a period of 5 years following the
repayment of the November 2005 $5 million convertible term loan. |
F-37
Lime Energy Co.
Notes to Consolidated Financial Statements
t) |
|
On June 30, 2006, the Company issued 5,000,000 shares to the Parke Family Trust as part of
the consideration in the acquisition of Parke P.A.N.D.A. Corporation. |
|
u) |
|
During the first six months of 2006, the Companys Board of Directors declared dividends
payable on the Companys Series E Convertible Preferred Stock of $698,000. The dividends were
paid with 6,980 additional shares of Series E Convertible Preferred Stock. |
|
v) |
|
On July 25, 2006, the Company issued a three year warrant to purchase 60,000 shares of its
common stock at $1.00 per share to Bristol Capital, Ltd. This warrant was valued at $25,200
using a modified Black-Sholes option pricing model utilizing the following assumptions: risk
free rate of 5.108%, expected volatility of 91.4%, expected dividend of $0 and expected life
of 3 years. The value of this warrant was charged to operations during the period. |
|
w) |
|
On September 26, 2006, the Company issued 500,000 shares of its common stock to Pradeep and
Susan Kapadia as part of the consideration in the acquisition of Kapadia Consulting, Inc. |
|
x) |
|
The Company had outstanding warrants to purchase 1,102,119 and 1,078,868 shares of its common
stock as of December 31, 2006 and 2005, respectively, at an exercise price of between $1.00
per share and $98.40 per share. These warrants can be exercised at any time prior to their
expiration dates which range between June 2007 and May 2015. The following table summarizes
information about warrants outstanding as of December 31, 2006: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants Outstanding |
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
Number |
|
|
Average |
|
|
Weighted |
|
|
|
Outstanding at |
|
|
Remaining |
|
|
Average |
|
|
|
December 31, |
|
|
Contractual |
|
|
Exercise |
|
Exercise Price |
|
2006 |
|
|
Life |
|
|
Price |
|
|
$ 1.00 |
|
|
665,118 |
|
|
1.8 years |
|
$ |
1.00 |
|
$ 1.01 $14.99 |
|
|
|
|
|
|
|
|
|
|
|
|
$15.00 $19.99 |
|
|
404,335 |
|
|
3.0 years |
|
|
16.19 |
|
$20.00 $98.40 |
|
|
32,666 |
|
|
1.9 years |
|
|
42.77 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,102,119 |
|
|
2.2 years |
|
$ |
7.81 |
|
|
F-38
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 24 Dividends
The dividend expense recognized during the years ended December 31, 2006, 2005 and 2004 is
comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Accrual of dividend on Series
A Convertible Preferred |
|
$ |
|
|
|
$ |
|
|
|
$ |
540,705 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual of Series C Preferred
dividend |
|
|
|
|
|
|
|
|
|
|
53,206 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual of Series D Preferred
dividend |
|
|
|
|
|
|
|
|
|
|
35,932 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accrual of Series E Preferred
dividend |
|
|
698,000 |
|
|
|
1,366,900 |
|
|
|
1,006,937 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with change in conversion
price of the Series E
Convertible Preferred Stock |
|
|
23,085,467 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with beneficial conversion
price on shares issuable in
satisfaction preferred
dividends |
|
|
|
|
|
|
|
|
|
|
1,127,021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with the redemption and
exchange of outstanding
preferred stock |
|
|
|
|
|
|
|
|
|
|
1,860,458 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with change in the expiration
date of warrants to purchase
shares of preferred stock |
|
|
|
|
|
|
|
|
|
|
15,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with change in the exercise
price of warrants to purchase
shares of common stock |
|
|
564,258 |
|
|
|
484,445 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
24,347,725 |
|
|
$ |
1,851,345 |
|
|
$ |
4,639,259 |
|
|
F-39
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 25 Reverse Split
In June 2006, the Companys Board of Directors approved and the Company announced a 1 for 15
reverse split of the Companys common stock, effective on June 15, 2006. The common stock has been
trading on this basis since that date. On advice of its outside counsel the Company effected the
reverse split without amending its certificate of incorporation. Subsequently it learned that
under Delaware law it was required to amend its certificate of incorporation, which requires
stockholder approval. It received stockholder approval in January 2007 and filed its certificate
of amendment to effect the reverse split as required under Delaware law. All share amounts stated
herein have been retroactively restated to reflect this reverse split.
Note 26 Stock Options
On August 30, 2001, the Companys shareholders approved the adoption of the 2001 Stock
Incentive Plan (the Plan), providing that up to 53,333 shares of the Companys common stock could
be delivered under the Plan to certain employees of the Company or any of its subsidiaries and to
consultants and directors who are not employees. In addition, the Plan originally provided for an
additional number of shares of the Companys common stock to be reserved for issuance under the
plan on January 1st of each succeeding year, beginning January 1, 2002, in an amount equal to the
lesser of (i) 5% of the number of outstanding shares of Common Stock, or (ii) 33,333 shares. At the
annual meeting held on June 7, 2006, the Companys stockholders approved an amendment to the Plan
which increased the number of shares reserved for issuance under the plan by 400,000 shares and
increased the additional shares issued each January 1st to the lesser of (i) 5% of the
number of outstanding shares of Common Stock, or (ii) 133,333 shares. The awards granted under the
Plan may be incentive stock options or non-qualified stock options. The exercise price for any
incentive stock option (ISO) may not be less than 100% of the fair market value of the stock on
the date the option is granted, except that with respect to a participant who owns more than 10% of
the common stock the exercise price must be not less than 110% of fair market value. The exercise
price of any non-qualified option shall be in the sole discretion of the Compensation Committee or
the Board. To qualify as an ISO the aggregate fair market value of the shares (determined on the
grant date) under options granted to any participant may not exceed $100,000 in the first year that
they can be exercised. There is no comparable limitation with respect to non-qualified stock
options. The term of all options granted under the Plan will be determined by the Compensation
Committee or the Board in their sole discretion, provided, however, that the term of each ISO shall
not exceed 10 years from the date of grant thereof.
In addition to the ISOs and non-qualified options, the Plan permits the Compensation
Committee, consistent with the purposes of the Plan, to grant stock appreciation rights and/or
shares of Common Stock to non-employee directors and such employees (including officers and
directors who are employees) of, or consultants to, the Company or any of its Subsidiaries, as the
Committee may determine, in its sole discretion. Under applicable tax laws, however, ISOs may only
be granted to employees.
The Plan is administered by the Board, which is authorized to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan and to determine the
individuals to whom, and the time, terms and conditions under which, options and awards are
granted. The Board may also amend, suspend or terminate the Plan in any respect at any time.
However, no amendment may (i) adversely affect the rights of a participant under an award
theretofore granted without the consent of such participant, (ii) increase the number of shares
reserved under the Plan, (iii) modify the requirements for participation in the Plan, or (iv)
modify the Plan in any way that would require stockholder approval under the rules and regulations
under the
F-40
Lime Energy Co.
Notes to Consolidated Financial Statements
Exchange Act or the rules of any stock exchange or market on which the Common Stock is listed
(unless such stockholder approval is obtained).
As of December 31, 2006, there were approximately 78 employees of the Company eligible to
participate in the Plan, and 620,000 shares of common stock reserved under the Plan.
Effective April 1, 2000, the Company adopted a stock option plan for all independent
directors, which is separate and distinct from the 2001 Stock Incentive Plan described above.
The plan was amended on July 11, 2006 to provide that eligible directors receive an initial option
grant upon being appointed to the Companys Board of Directors to purchase 100,000 shares of its
common stock, and a grant of options to purchase an additional 50,000 shares on the first day of
January beginning on the second January following the date the Director became an eligible
director. These options have an exercise price equal to the closing price of the Companys common
stock on the grant date and a term of ten years. The initial options vest on the first day of
January following the initial grant date or six months following the initial grant date, whichever
is later, if the individual is still a director on the vesting date. All future grants vest in two
equal amounts, one amount on the grant date and the balance on the anniversary of the grant date,
if the individual is still a member of the Board of Directors on such anniversary date.
During 2004, certain directors, officers and key employees of the Company were granted options
to acquire 67,767 shares of common stock at exercise prices ranging from $17.25 to $35.40 per
share. These options vested over periods through January 2006.
During 2005, certain directors, officers and key employees of the Company were granted options
to acquire 69,833 shares of common stock at exercise prices ranging from $15.00 to $18.60 per
share. These options vest over periods through October 2007.
During 2006, certain directors, officers and key employees of the Company were granted options
to acquire 10,126,668 shares of common stock at exercise prices ranging from $0.96 to $15.00 per
share. These options vest over periods through December 2008.
F-41
Lime Energy Co.
Notes to Consolidated Financial Statements
The following table summarizes the options granted, exercised and outstanding as of December
31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
Exercise |
|
|
Average |
|
|
|
|
|
|
|
Price Per |
|
|
Exercise |
|
|
|
Shares |
|
|
Share |
|
|
Price |
|
|
Outstanding at December 31, 2003 |
|
|
681,479 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
51.75 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
67,767 |
|
|
$ |
17.25 - $ 35.40 |
|
|
$ |
25.68 |
|
Forfeited |
|
|
(8,111 |
) |
|
$ |
18.75 - $105.00 |
|
|
$ |
79.75 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2004 |
|
|
741,135 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
49.05 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
69,833 |
|
|
$ |
15.00 - $ 18.60 |
|
|
$ |
15.60 |
|
Forfeited |
|
|
(10,967 |
) |
|
$ |
15.00 - $120.00 |
|
|
$ |
23.40 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2005 |
|
|
800,001 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
46.50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
10,128,318 |
|
|
$ |
0.96 - $ 15.00 |
|
|
$ |
1.12 |
|
Forfeited |
|
|
(221,187 |
) |
|
$ |
1.02 - $105.00 |
|
|
$ |
19.68 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2006 |
|
|
10,707,132 |
|
|
$ |
0.96 - $194.85 |
|
|
$ |
4.13 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at
December 31, 2006 |
|
|
4,645,455 |
|
|
$ |
0.96 - $194.85 |
|
|
$ |
7.95 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at
December 31, 2005 |
|
|
723,518 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
48.30 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at
December 31, 2004 |
|
|
651,896 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
51.00 |
|
|
The weighted-average, grant-date fair value of stock options granted to employees during
the year, and the weighted-average significant assumptions used to determine those fair values,
using a modified Black-Scholes option pricing model for stock options under Statement of Financial
Accounting Standards No. 123, are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Weighted average fair value per options granted |
|
$ |
1.05 |
|
|
$ |
0.68 |
|
|
$ |
1.16 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Significant assumptions (weighted average): |
|
|
|
|
|
|
|
|
|
|
|
|
Risk-free interest rate at grant date |
|
|
5.02 |
% |
|
|
2.27 |
% |
|
|
1.04 |
% |
Expected stock price volatility |
|
|
90 |
% |
|
|
65 |
% |
|
|
72 |
% |
Expected dividend payout |
|
|
|
|
|
|
|
|
|
|
|
|
Expected option life (years) |
|
|
5.6 |
|
|
|
9.1 |
|
|
|
9.1 |
|
|
F-42
Lime Energy Co.
Notes to Consolidated Financial Statements
The risk-free interest rate is based on the U.S. Treasury Bill rates at the time of
grant. The dividend reflects the fact that the Company has never paid a dividend on its common
stock and does not expect to in the foreseeable future. The Company estimated the volatility of its
common stock at the date of grant based on the historical volatility of its stock. The expected
term of the options is based on the simplified method as described in the Staff Accounting
Bulletin.
The Company recognized $4,828,955 and $0 of share based compensation expense related to stock
options during 2006 and 2005, respectively. The Company recognizes compensation expense for stock
options on a straight-line basis over the requisite service period, which is generally equal to the
vesting period of the option. It assumed a 10% forfeiture rate in the calculation of the share
based compensation. The subject stock options expire ten years after the date of grant.
Option activity under the Companys stock option plans as of December 31, 2006 and changes
during the year then ended are presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
Exercise |
|
|
Average |
|
|
|
|
|
|
|
Price Per |
|
|
Exercise |
|
|
|
Shares |
|
|
Share |
|
|
Price |
|
|
Outstanding at December 31, 2005 |
|
|
800,001 |
|
|
$ |
12.60 - $194.85 |
|
|
$ |
46.50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
10,128,318 |
|
|
$ |
0.96 - $ 15.00 |
|
|
$ |
1.12 |
|
Forfeited |
|
|
(221,187 |
) |
|
$ |
1.02 - $105.00 |
|
|
$ |
19.68 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2006 |
|
|
10,707,132 |
|
|
$ |
0.96 - $194.85 |
|
|
$ |
1.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at December 31, 2006 |
|
|
4,645,455 |
|
|
$ |
0.96 - $194.85 |
|
|
$ |
7.95 |
|
The following table summarizes information about stock options outstanding at December
31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding |
|
|
Options Exercisable |
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
|
Number |
|
|
Average |
|
|
Weighted |
|
|
Number |
|
|
Weighted |
|
|
|
Outstanding at |
|
|
Remaining |
|
|
Average |
|
|
Exercisable at |
|
|
Average |
|
|
|
December 31, |
|
|
Contractual |
|
|
Exercise |
|
|
December 31, |
|
|
Exercise |
|
Exercise Price |
|
2006 |
|
|
Life |
|
|
Price |
|
|
2006 |
|
|
Price |
|
|
$ 0.90 - $ 1.00 |
|
|
3,440,000 |
|
|
9.5 years |
|
$ |
0.97 |
|
|
|
100,000 |
|
|
$ |
1.00 |
|
$ 1.01 - $ 1.10 |
|
|
6,455,000 |
|
|
9.6 years |
|
|
1.02 |
|
|
|
3,866,653 |
|
|
|
1.02 |
|
$ 1.11 - $ 10.00 |
|
|
100,000 |
|
|
9.1 years |
|
|
9.30 |
|
|
|
|
|
|
|
|
|
$10.01 - $194.85 |
|
|
712,132 |
|
|
3.6 years |
|
|
46.85 |
|
|
|
678,802 |
|
|
|
48.41 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,707,132 |
|
|
9.1 years |
|
$ |
4.13 |
|
|
|
4,645,455 |
|
|
$ |
7.95 |
|
|
F-43
Lime Energy Co.
Notes to Consolidated Financial Statements
The aggregate intrinsic value of the outstanding options (the difference between the
closing stock price on the last trading day of 2006 of $0.90 per share and the exercise price,
multiplied by the number of in-the-money options) that would have been received by the option
holders had all option holders exercised their options on December 31, 2006 was $0. This amount
will change based on changes in the fair market value of the Companys common stock.
As of December 31, 2006, $3,417,726 of total unrecognized compensation cost related to
outstanding stock options is expected to be recognized over a weighted-average period of 1.47
years, as follows:
|
|
|
|
|
Year ending December 31, |
|
|
|
|
|
2007 |
|
$ |
2,568,508 |
|
2008 |
|
|
843,190 |
|
2009 |
|
|
6,028 |
|
|
|
|
|
|
|
Total |
|
$ |
3,417,726 |
|
|
A summary of the nonvested options for the year ended December 31, 2006 is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
Average |
|
|
|
|
|
|
|
Number of |
|
|
Grant Date |
|
|
|
|
|
|
|
Options |
|
|
Fair Value |
|
|
Nonvested at December 31, 2005 |
|
|
|
|
|
|
76,490 |
|
|
$ |
29.64 |
|
Granted |
|
|
|
|
10,128,318 |
|
|
|
1.05 |
|
Vested |
|
|
|
|
(4,009,149 |
) |
|
|
2.01 |
|
Forfeited |
|
|
|
|
(133,982 |
) |
|
|
36.84 |
|
|
Nonvested at December 31, 2006 |
|
|
|
|
|
|
6,061,677 |
|
|
$ |
1.29 |
|
|
F-44
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 27 Related Parties
On June 29, 2006, the Company entered into the PIPE Transaction and Series E Conversion (as
described in Notes 21 and 22) with 18 persons and entities, including Messrs. Asplund, Kiphart and
Valentine, who are all directors of the Company, for an aggregate purchase price of $17,875,000,
17,875,000 shares of the Companys common stock.
A breakdown of the shares issued in these transactions to Messrs. Asplund, Kiphart and
Valentine is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares |
|
Common |
|
|
|
|
Issued |
|
Shares |
|
Aggregate |
|
|
Upon |
|
Issued |
|
Price Paid |
|
|
Conversion |
|
Pursuant to |
|
for PIPE |
|
|
of Series E |
|
PIPE |
|
Shares |
|
David R. Asplund |
|
|
354,200 |
|
|
|
1,500,000 |
|
|
$ |
1,500,000 |
|
Richard P. Kiphart |
|
|
8,903,400 |
|
|
|
5,700,000 |
|
|
|
5,700,000 |
|
David Valentine |
|
|
145,700 |
|
|
|
200,000 |
|
|
|
200,000 |
|
|
|
Total |
|
|
9,403,300 |
|
|
|
7,400,000 |
|
|
$ |
7,400,000 |
|
|
During January 2006, the Company entered into a consulting agreement with Parke
P.A.N.D.A. Corporation to provide sales and marketing consulting services. Parke P.A.N.D.A. was a
company which at the time was beneficially owned by Daniel Parke, one of the Companys directors.
Pursuant to the consulting agreement the Company agreed to pay Parke P.A.N.D.A. $10,000 per month
and to reimburse it for any expenses incurred as a result of its work. The Company paid Parke
P.A.N.D.A. a total of $61,155 during the six months ended June 30, 2006. This agreement was
terminated in May 2006.
During January 2006 and again in November 2006, the Company retained Corporate Resource
Development, a company owned by William Carey, one of the Companys directors, to provide sales
training and sales and marketing consulting services to Lime Energy. The Company paid Corporate
Resource Development a total of $62,500 for these services.
On June 29, 2006, the Company acquired Parke P.A.N.D.A. Corporation, a company owned by The
Parke Family Trust, which is controlled and beneficially owned by Daniel Parke, one of the
Companys directors, and his spouse. Please see Note 5 for additional information regarding this
transaction.
As part of the acquisition of Parke P.A.N.D.A. Corporation, the Company assumed Parke
P.A.N.D.A.s existing office lease for space in a building in Glendora California owned by a
company controlled by Daniel Parke. The Company believes that the terms of the lease are fair as
they are comparable to the terms of leases with other third party tenants located in the building.
See Note 18 for additional information.
Certain other related party transactions are disclosed in Notes 18 and 20.
F-45
Lime Energy Co.
Notes to Consolidated Financial Statements
The Company does not have a written policy concerning transactions between the Company or a
subsidiary of the Company and any director or executive officer, nominee for director, 5%
stockholder or member of the immediate family of any such person. However, the Companys practice
is that such transactions shall be reviewed by the Companys Board of Directors and found to be
fair to the Company prior to the Company (or a subsidiary) entering into any such transaction,
except for (i) executive officers participation in employee benefits which are available to all
employees generally; (ii) transactions involving routine goods or services which are purchased or
sold by the Company (or a subsidiary) on the same terms as are generally available in arms length
transactions with unrelated parties (however, such transactions are still subject to approval by an
authorized representative of the Company (or a subsidiary) in accordance with internal policies and
procedures applicable to such transactions with unrelated third parties); and (iii) compensation
decisions with respect to executive officers other than the CEO, which are made by the Compensation
Committee pursuant to recommendations of the CEO.
Note 28 Business Segment Information
The Company is organized and manages its business in two distinct segments: the Energy
Technology segment, and the Energy Services segment. In classifying its operational entities into
a particular segment, the Company segregated its businesses with similar economic characteristics,
products and services, production processes, customers, and methods of distribution into distinct
operating groups.
The Energy Technology segment designs, manufactures and markets energy saving technologies,
primarily to commercial and industrial customers. The principal products produced and marketed by
this segment are the eMAC line of HVAC and lighting controllers and the EnergySaver line of
lighting controllers. Operations of Lime Energy Co. and Maximum Performance Group, Inc. are
included in this segment. Lime Energy is headquartered, and most of its operations are located, in
Elk Grove Village, Illinois. Maximum Performance Group is headquartered in San Diego, California
and has a sales office in New York City.
The Energy Services segment includes the operations of Parke Industries, LLC and Kapadia
Energy Services, Inc. Parke, which the Company acquired effective June 30, 2006, designs,
engineers and installs energy efficient lighting upgrades for commercial and industrial users.
Kapadia, which the Company acquired effective September 27, 2006, provides energy engineering
services to assist customers in improving their energy efficiency and to better manage their energy
costs. Kapadia also designs, engineers and manages the installation of energy efficient lighting
upgrades for commercial and industrial users, but unlike Parke contracts the installation to third
party electrical contractors. Parke is headquartered in Glendora, California and has sales offices
northern California. Kapadia is headquartered in Peekskill, New York and has an office in Ventura,
California.
Prior to March 31, 2006 the Company also operated a Building Control and Automation segment,
which was comprised of its Great Lakes Controlled Energy subsidiary. This segment provided
integration of building and environmental control systems for commercial and industrial customers.
The Company sold Great Lakes effective March 31, 2006; accordingly, the operating results have been
separately reported as discontinued operations.
F-46
Lime Energy Co.
Notes to Consolidated Financial Statements
An analysis and reconciliation of the Companys business segment information to the respective
information in the consolidated financial statements is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2006 |
|
|
2005 |
|
|
2004 |
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
$ |
4,841,610 |
|
|
$ |
3,693,429 |
|
|
$ |
733,630 |
|
Energy Services |
|
|
3,306,610 |
|
|
|
|
|
|
|
|
|
Intercompany sales |
|
|
(4,596 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
8,143,624 |
|
|
|
3,693,429 |
|
|
|
733,630 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Loss: |
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
|
(6,692,648 |
) |
|
|
(4,578,753 |
) |
|
|
(2,386,678 |
) |
Energy Services |
|
|
(1,175,253 |
) |
|
|
|
|
|
|
|
|
Corporate |
|
|
(5,479,000 |
) |
|
|
(1,497,770 |
) |
|
|
(1,976,298 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
(13,346,901 |
) |
|
|
(6,076,523 |
) |
|
|
(4,362,976 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expense, net |
|
|
(3,079,188 |
) |
|
|
(544,253 |
) |
|
|
(626,049 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(16,426,089 |
) |
|
|
(6,620,776 |
) |
|
|
(4,989,025 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and Amortization: |
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
|
742,706 |
|
|
|
592,271 |
|
|
|
50,257 |
|
Energy Services |
|
|
641,870 |
|
|
|
9,598 |
|
|
|
8,621 |
|
Building Control and Automation |
|
|
2,021 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
1,386,597 |
|
|
|
601,869 |
|
|
|
58,878 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital Additions: |
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
|
68,406 |
|
|
|
530,925 |
|
|
|
149,603 |
|
Energy Services |
|
|
12,096 |
|
|
|
|
|
|
|
|
|
Building Control and Automation |
|
|
2,465 |
|
|
|
17,949 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
82,967 |
|
|
|
548,874 |
|
|
|
149,603 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
|
12,906,748 |
|
|
|
16,424,460 |
|
|
|
5,167,814 |
|
Energy Services |
|
|
12,490,117 |
|
|
|
|
|
|
|
|
|
Building Control and Automation |
|
|
|
|
|
|
674,514 |
|
|
|
1,311,506 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
25,396,865 |
|
|
$ |
17,098,974 |
|
|
$ |
6,479,320 |
|
F-47
Lime Energy Co.
Notes to Consolidated Financial Statements
Note 29 Selected Quarterly Financial Data (unaudited)
The following represents the Companys unaudited quarterly results for fiscal 2006 and fiscal
2005. These quarterly results were prepared in accordance with U.S. generally accepted accounting
principles and reflect all adjustments (consisting solely of normal recurring adjustments) which,
in the opinion of management, are necessary for a fair statement of the results.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2006 Quarters Ended |
|
|
March 31 |
|
June 30 |
|
September 30 |
|
December 31 |
|
Total |
Revenue |
|
$ |
1,146,345 |
|
|
$ |
1,334,818 |
|
|
$ |
2,130,158 |
|
|
$ |
3,532,303 |
|
|
$ |
8,143,624 |
|
Gross profit (loss) |
|
|
237,943 |
|
|
|
361,337 |
|
|
|
537,545 |
|
|
|
75,505 |
|
|
|
1,212,330 |
|
Loss from continuing operations |
|
|
(1,935,180 |
) |
|
|
(4,659,818 |
) |
|
|
(4,117,510 |
) |
|
|
(5,713,581 |
) |
|
|
(16,426,089 |
) |
Loss from discontinued operations |
|
|
(21,425 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(21,425 |
) |
Net loss |
|
|
(1,956,605 |
) |
|
|
(4,659,818 |
) |
|
|
(4,117,510 |
) |
|
|
(5,713,581 |
) |
|
|
(16,447,514 |
) |
Preferred dividends |
|
|
(615,290 |
) |
|
|
(23,732,435 |
) |
|
|
|
|
|
|
|
|
|
|
(24,347,725 |
) |
Net loss available to common shareholders |
|
|
(2,571,895 |
) |
|
|
(28,392,253 |
) |
|
|
(4,117,510 |
) |
|
|
(5,713,581 |
) |
|
|
(40,795,239 |
) |
Basic and diluted loss per common share from
continuing operations |
|
|
(0.74 |
) |
|
|
(6.49 |
) |
|
|
(0.08 |
) |
|
|
(0.12 |
) |
|
|
(1.52 |
) |
Discontinued operations |
|
|
(0.01 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.00 |
) |
Basic and Diluted Loss Per Common Share |
|
|
(0.75 |
) |
|
|
(6.49 |
) |
|
|
(0.08 |
) |
|
|
(0.12 |
) |
|
|
(1.52 |
) |
Weighted averages shares |
|
|
3,410,455 |
|
|
|
4,373,236 |
|
|
|
49,308,350 |
|
|
|
48,786,611 |
|
|
|
26,908,608 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2005 Quarters Ended |
|
|
March 31 |
|
June 30 |
|
September 30 |
|
December 31 |
|
Total |
Revenue |
|
$ |
250,713 |
|
|
$ |
1,550,089 |
|
|
$ |
1,123,360 |
|
|
$ |
769,267 |
|
|
$ |
3,693,429 |
|
Gross profit (loss) |
|
|
145,742 |
|
|
|
104,689 |
|
|
|
(74,580 |
) |
|
|
(174,276 |
) |
|
|
1,575 |
|
Loss from continuing operations |
|
|
(912,957 |
) |
|
|
(1,712,523 |
) |
|
|
(1,966,007 |
) |
|
|
(2,029,289 |
) |
|
|
(6,620,776 |
) |
Income (loss) from discontinued operations |
|
|
237,700 |
|
|
|
(112,111 |
) |
|
|
(48,088 |
) |
|
|
(329,463 |
) |
|
|
(251,962 |
) |
Net loss |
|
|
(675,257 |
) |
|
|
(1,824,634 |
) |
|
|
(2,014,095 |
) |
|
|
(2,358,752 |
) |
|
|
(6,872,738 |
) |
Preferred dividends |
|
|
(334,800 |
) |
|
|
(339,000 |
) |
|
|
(344,000 |
) |
|
|
(833,545 |
) |
|
|
(1,851,345 |
) |
Net loss available to common shareholders |
|
|
(1,010,057 |
) |
|
|
(2,163,634 |
) |
|
|
(2,358,095 |
) |
|
|
(3,192,297 |
) |
|
|
(8,724,083 |
) |
Basic and diluted loss per common share from
continuing operations |
|
|
(0.45 |
) |
|
|
(0.64 |
) |
|
|
(0.69 |
) |
|
|
(0.84 |
) |
|
|
(2.65 |
) |
Discontinued operations |
|
|
0.09 |
|
|
|
(0.04 |
) |
|
|
(0.01 |
) |
|
|
(0.10 |
) |
|
|
(0.08 |
) |
Basic and Diluted Loss Per Common Share |
|
|
(0.36 |
) |
|
|
(0.68 |
) |
|
|
(0.70 |
) |
|
|
(0.94 |
) |
|
|
(2.73 |
) |
Weighted averages shares |
|
|
2,784,438 |
|
|
|
3,195,194 |
|
|
|
3,387,567 |
|
|
|
3,386,677 |
|
|
|
3,190,664 |
|
Note 30 Subsequent Events
On February 23, 2007, the Company commenced a rights offering to stockholders in which it
distributed to each holder of record as of February 23, 2007 (other than the former Series E
Preferred stockholders and Daniel Parke, who waived their rights to participate), five
non-transferable subscription rights to purchase shares of the Companys common stock at $1.00 per
share, for a total of 38,825,160 subscription rights. Stockholders that participate in the rights
offering also are able to subscribe for any shares that were not purchased by other stockholders
pursuant to their subscription rights. The rights offering is scheduled to close on March 30,
2007.
F-48
LIME ENERGY CO.
Schedule II Valuation and Qualifying Accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions/ |
|
|
|
|
|
|
|
|
|
|
|
|
(recoveries) |
|
|
|
|
|
|
|
|
Balance at |
|
charged to |
|
Deductions |
|
|
|
|
|
|
beginning of |
|
costs and |
|
Amounts |
|
Other |
|
Balance at end |
|
|
period |
|
expenses |
|
written-off |
|
adjustments |
|
of period |
Allowance for doubtful
accounts: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2004 |
|
|
326,000 |
|
|
|
6,000 |
|
|
|
(133,000 |
) |
|
|
|
|
|
|
199,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2005 |
|
$ |
199,000 |
|
|
$ |
97,000 |
|
|
$ |
(13,000 |
) |
|
$ |
42,000 |
|
|
$ |
325,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2006 |
|
$ |
325,000 |
|
|
$ |
105,000 |
|
|
$ |
(62,000 |
) |
|
$ |
(3,000 |
) |
|
$ |
366,000 |
|
Other adjustment of $42,000 in 2005 resulted from the acquisition of Maximum Performance
Group, Inc.
Other adjustment of ($3,000) in 2006 resulted from the sale of Great Lakes Controlled Energy and
the acquisition of Parke P.A.N.D.A. Corporation and Kapadia Consulting Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions/ |
|
|
|
|
|
|
|
|
|
|
|
|
(recoveries) |
|
|
|
|
|
|
|
|
Balance at |
|
charged to |
|
Deductions |
|
|
|
|
|
|
beginning of |
|
costs and |
|
Amounts |
|
Other |
|
Balance at end |
|
|
period |
|
expenses |
|
written-off |
|
adjustments |
|
of period |
Reserve for obsolete inventory: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2005 |
|
$ |
|
|
|
$ |
35,000 |
|
|
$ |
(16,000 |
) |
|
$ |
9,000 |
|
|
$ |
28,200 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2006 |
|
$ |
28,200 |
|
|
$ |
578,400 |
|
|
$ |
(9,800 |
) |
|
$ |
|
|
|
$ |
596,800 |
|
Other adjustment of $9,000 in 2005 resulted from the acquisition of Maximum Performance Group,
Inc.
F-49
LIME ENERGY CO.
CONDENSED CONSOLIDATED BALANCE SHEET
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
|
|
|
|
2007 |
|
|
December 31, |
|
|
|
(unaudited) |
|
|
2006 (1) |
|
|
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
8,340,281 |
|
|
$ |
4,663,618 |
|
Accounts receivable, net |
|
|
3,800,146 |
|
|
|
2,825,947 |
|
Inventories |
|
|
1,114,221 |
|
|
|
614,491 |
|
Advances to suppliers |
|
|
106,583 |
|
|
|
132,083 |
|
Costs and estimated earnings in excess of billings on
uncompleted contracts |
|
|
411,795 |
|
|
|
|
|
Prepaid expenses and other |
|
|
345,904 |
|
|
|
279,017 |
|
|
|
|
|
|
|
|
|
|
|
Total Current Assets |
|
|
14,118,930 |
|
|
|
8,515,156 |
|
|
|
|
|
|
|
|
|
|
Net Property and Equipment |
|
|
1,257,726 |
|
|
|
1,201,008 |
|
|
|
|
|
|
|
|
|
|
Long Term Receivables |
|
|
92,336 |
|
|
|
102,904 |
|
Deferred Financing Costs, net |
|
|
8,322 |
|
|
|
|
|
Intangibles, net |
|
|
4,684,000 |
|
|
|
5,126,829 |
|
Cost in Excess of Assets Acquired |
|
|
10,499,519 |
|
|
|
10,450,968 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
30,660,833 |
|
|
$ |
25,396,865 |
|
|
F-50
LIME ENERGY CO.
CONDENSED CONSOLIDATED BALANCE SHEET
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
|
|
|
|
2007 |
|
|
December 31, |
|
|
|
(unaudited) |
|
|
2006 (1) |
|
|
Liabilities and Stockholders Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities |
|
|
|
|
|
|
|
|
Accounts payable |
|
$ |
1,727,779 |
|
|
$ |
1,344,725 |
|
Current maturities of long-term debt |
|
|
523,350 |
|
|
|
46,699 |
|
Accrued expenses |
|
|
919,694 |
|
|
|
1,251,777 |
|
Notes payable |
|
|
150,000 |
|
|
|
150,000 |
|
Deferred revenue |
|
|
1,209,369 |
|
|
|
967,446 |
|
Customer deposits |
|
|
1,282,834 |
|
|
|
1,148,090 |
|
|
Total Current Liabilities |
|
|
5,813,026 |
|
|
|
4,908,737 |
|
|
|
|
|
|
|
|
|
|
Deferred Revenue |
|
|
541,416 |
|
|
|
748,980 |
|
Long-Term Debt, less current maturities, net of unamortized
discount of $2,915,553 and $0 at June 30, 2007 and
December 31, 2006, respectively |
|
|
2,135,968 |
|
|
|
520,392 |
|
Deferred Tax Liability |
|
|
1,034,000 |
|
|
|
1,034,000 |
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities |
|
|
9,524,410 |
|
|
|
7,212,109 |
|
|
|
|
|
|
|
|
|
|
|
Stockholders Equity |
|
|
|
|
|
|
|
|
Common stock, $.0001 par value; 200,000,000 shares
authorized, 53,641,699 and 49,786,611 issued as of
June 30, 2007 and December 31, 2006, respectively |
|
|
5,364 |
|
|
|
4,979 |
|
Additional paid-in capital |
|
|
103,331,686 |
|
|
|
95,025,912 |
|
Accumulated deficit |
|
|
(82,200,627 |
) |
|
|
(76,846,135 |
) |
|
Total Stockholders Equity |
|
|
21,136,423 |
|
|
|
18,184,756 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
30,660,833 |
|
|
$ |
25,396,865 |
|
|
(1) |
|
Derived from audited financial statements in the Companys annual
report on Form 10-K for the year ended December 31, 2006 |
See accompanying notes to condensed consolidated financial statements
F-51
LIME ENERGY CO.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
|
|
|
|
|
|
|
|
|
Three months ended June 30 |
|
2007 |
|
|
2006 |
|
|
Revenue |
|
$ |
4,102,693 |
|
|
$ |
1,334,818 |
|
|
|
|
|
|
|
|
|
|
Cost of sales |
|
|
2,944,724 |
|
|
|
973,481 |
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
1,157,969 |
|
|
|
361,337 |
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative |
|
|
2,647,873 |
|
|
|
1,911,162 |
|
Amortization of intangibles |
|
|
482,020 |
|
|
|
146,095 |
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(1,971,924 |
) |
|
|
(1,695,920 |
) |
|
|
|
|
|
|
|
|
|
Other Expense: |
|
|
|
|
|
|
|
|
Interest income |
|
|
74,222 |
|
|
|
8,058 |
|
Interest expense |
|
|
(145,851 |
) |
|
|
(2,971,956 |
) |
|
|
|
|
|
|
|
|
|
|
Total other expense |
|
|
(71,629 |
) |
|
|
(2,963,898 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss |
|
|
(2,043,553 |
) |
|
|
(4,659,818 |
) |
|
|
|
|
|
|
|
|
|
|
Plus preferred stock dividends |
|
|
|
|
|
|
(23,732,435 |
) |
|
|
|
|
|
|
|
|
|
|
Net Loss Available to Common Shareholders |
|
$ |
(2,043,553 |
) |
|
$ |
(28,392,253 |
) |
|
|
|
|
|
|
|
|
|
|
Basic and Diluted Net Loss Per Common Share |
|
$ |
(0.04 |
) |
|
$ |
(6.49 |
) |
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding |
|
|
53,428,595 |
|
|
|
4,373,236 |
|
|
See accompanying notes to condensed consolidated financial statements
F-52
LIME ENERGY CO.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
|
|
|
|
|
|
|
|
|
Six months ended June 30 |
|
2007 |
|
|
2006 |
|
|
Revenue |
|
$ |
6,631,240 |
|
|
$ |
2,481,163 |
|
|
|
|
|
|
|
|
|
|
Cost of sales |
|
|
5,101,204 |
|
|
|
1,881,883 |
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
1,530,036 |
|
|
|
599,280 |
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative |
|
|
5,903,785 |
|
|
|
3,660,165 |
|
Amortization of intangibles |
|
|
938,829 |
|
|
|
323,007 |
|
|
|
|
|
|
|
|
|
|
|
Operating loss |
|
|
(5,312,578 |
) |
|
|
(3,383,892 |
) |
|
|
|
|
|
|
|
|
|
Other Expense: |
|
|
|
|
|
|
|
|
Interest income |
|
|
120,335 |
|
|
|
28,769 |
|
Interest expense |
|
|
(162,249 |
) |
|
|
(3,239,875 |
) |
|
|
|
|
|
|
|
|
|
|
Total other expense |
|
|
(41,914 |
) |
|
|
(3,211,106 |
) |
|
|
|
|
|
|
|
|
|
Loss from continuing operations |
|
|
(5,354,492 |
) |
|
|
(6,594,998 |
) |
|
|
|
|
|
|
|
|
|
Loss from discontinued operations |
|
|
|
|
|
|
(21,425 |
) |
|
|
|
|
|
|
|
|
|
|
Net Loss |
|
|
(5,354,492 |
) |
|
|
(6,616,423 |
) |
|
|
|
|
|
|
|
|
|
|
Plus preferred stock dividends |
|
|
|
|
|
|
(24,347,725 |
) |
|
|
|
|
|
|
|
|
|
|
Net Loss Available to Common Shareholders |
|
$ |
(5,354,492 |
) |
|
$ |
(30,964,148 |
) |
|
|
|
|
|
|
|
|
|
|
Basic and diluted loss per common share from
continuing operations |
|
$ |
(0.10 |
) |
|
$ |
(7.94 |
) |
|
|
|
|
|
|
|
|
|
Discontinued operations |
|
|
|
|
|
|
(0.01 |
) |
|
|
|
|
|
|
|
|
|
Basic and Diluted Net Loss Per Common Share |
|
$ |
(0.10 |
) |
|
$ |
(7.95 |
) |
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding |
|
|
51,826,534 |
|
|
|
3,894,505 |
|
|
See accompanying notes to condensed consolidated financial statements
F-53
LIME ENERGY CO.
STATEMENT OF CONDENSED CONSOLIDATED STOCKHOLDERS EQUITY
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
Total |
|
|
|
Common |
|
|
Common |
|
|
Paid-in |
|
|
Accumulated |
|
|
Stockholders |
|
|
|
Shares |
|
|
Stock |
|
|
Capital |
|
|
Deficit |
|
|
Equity |
|
|
Balance, December 31, 2006 |
|
|
49,786,611 |
|
|
$ |
4,979 |
|
|
$ |
95,025,912 |
|
|
$ |
(76,846,135 |
) |
|
$ |
18,184,756 |
|
Issuance of common stock (less issuance costs) |
|
|
2,999,632 |
|
|
|
300 |
|
|
|
2,796,400 |
|
|
|
|
|
|
|
2,796,700 |
|
Offering costs for 2006 issuance of
common stock |
|
|
|
|
|
|
|
|
|
|
(45,361 |
) |
|
|
|
|
|
|
(45,361 |
) |
Acquisition of Texas Energy Products, Inc. |
|
|
200,000 |
|
|
|
20 |
|
|
|
213,980 |
|
|
|
|
|
|
|
214,000 |
|
Release of escrow shares to former owners of
Maximum Performance Group, Inc. |
|
|
20,715 |
|
|
|
2 |
|
|
|
26,306 |
|
|
|
|
|
|
|
26,308 |
|
Satisfaction of liquidated damages through the
issuance of common stock |
|
|
613,708 |
|
|
|
61 |
|
|
|
613,647 |
|
|
|
|
|
|
|
613,708 |
|
Share based compensation |
|
|
|
|
|
|
|
|
|
|
1,488,116 |
|
|
|
|
|
|
|
1,488,116 |
|
Warrants issued in connection with
Subordinated Convertible Notes |
|
|
|
|
|
|
|
|
|
|
1,136,537 |
|
|
|
|
|
|
|
1,136,537 |
|
Value of beneficial conversion feature on
Subordinated Convertible Notes |
|
|
|
|
|
|
|
|
|
|
1,866,537 |
|
|
|
|
|
|
|
1,866,537 |
|
Satisfaction of interest obligation through
issuance of common stock |
|
|
10,955 |
|
|
|
1 |
|
|
|
20,814 |
|
|
|
|
|
|
|
20,815 |
|
Warrants issued for services received |
|
|
|
|
|
|
|
|
|
|
162,000 |
|
|
|
|
|
|
|
162,000 |
|
Exercise of warrants |
|
|
10,078 |
|
|
|
1 |
|
|
|
7,594 |
|
|
|
|
|
|
|
7,595 |
|
Warrant repricing |
|
|
|
|
|
|
|
|
|
|
19,204 |
|
|
|
|
|
|
|
19,204 |
|
Net loss for the six months ended
June 30, 2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,354,492 |
) |
|
|
(5,354,492 |
) |
|
Balance, June 30, 2007 |
|
|
53,641,699 |
|
|
$ |
5,364 |
|
|
$ |
103,331,686 |
|
|
$ |
(82,200,627 |
) |
|
$ |
21,136,423 |
|
|
See accompanying notes to condensed consolidated financial statements.
F-54
LIME ENERGY CO.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
|
|
|
|
|
|
|
|
|
Six months ended June 30 |
|
2007 |
|
|
2006 |
|
|
Cash Flow from Operating Activities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(5,354,492 |
) |
|
$ |
(6,616,423 |
) |
|
|
|
|
|
|
|
|
|
Adjustments to reconcile net loss to net cash used in
operating activities, net of acquisitions and dispositions |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
1,007,629 |
|
|
|
406,532 |
|
Share based compensation |
|
|
1,488,116 |
|
|
|
246,869 |
|
Warrants issued in exchange for services received |
|
|
162,000 |
|
|
|
|
|
Provision for bad debt |
|
|
3,246 |
|
|
|
|
|
Provision for inventory obsolescence |
|
|
47,781 |
|
|
|
|
|
Liquidated damages satisfied through issuance of common stock |
|
|
613,708 |
|
|
|
185,260 |
|
Amortization of deferred financing costs |
|
|
250 |
|
|
|
299,964 |
|
Amortization of original issue discount |
|
|
87,521 |
|
|
|
898,409 |
|
Accrued interest satisfied through the issuance of common stock |
|
|
20,815 |
|
|
|
|
|
Warrant repricing |
|
|
19,204 |
|
|
|
|
|
Termination of post repayment interest and interest
converted to common stock |
|
|
|
|
|
|
274,747 |
|
Beneficial value of revolver adjustment in conversion price |
|
|
|
|
|
|
950,865 |
|
Loss on disposal of fixed assets |
|
|
|
|
|
|
93,861 |
|
Changes in assets and liabilities, net of acquisitions
and dispositions |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(888,467 |
) |
|
|
(23,869 |
) |
Inventories |
|
|
(479,877 |
) |
|
|
164,418 |
|
Advances to suppliers |
|
|
25,500 |
|
|
|
115,758 |
|
Other current assets |
|
|
(473,882 |
) |
|
|
(30,197 |
) |
Accounts payable |
|
|
281,698 |
|
|
|
(178,822 |
) |
Accrued expenses |
|
|
(351,324 |
) |
|
|
(2,513 |
) |
Deferred revenue |
|
|
(1,425 |
) |
|
|
201,499 |
|
Other current liabilities |
|
|
134,744 |
|
|
|
(100,346 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(3,657,255 |
) |
|
|
(2,756,344 |
) |
|
|
|
|
|
|
|
|
|
|
Cash Flows Used In Investing Activities |
|
|
|
|
|
|
|
|
Acquisitions (including acquisition costs), net of cash acquired |
|
|
(305,706 |
) |
|
|
(2,849,762 |
) |
Sale of discontinued operations |
|
|
|
|
|
|
(83,586 |
) |
Purchase of property and equipment |
|
|
(118,518 |
) |
|
|
(12,544 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(424,224 |
) |
|
|
(2,945,892 |
) |
|
|
|
|
|
|
|
|
|
|
Cash Flows Provided by Financing Activities |
|
|
|
|
|
|
|
|
(Payments) borrowings on lines of credit |
|
|
|
|
|
|
(1,456,545 |
) |
Proceeds from long-term debt |
|
|
5,033,228 |
|
|
|
|
|
Payment on long-term debt |
|
|
(25,448 |
) |
|
|
(5,325,861 |
) |
Cash paid for deferred financing costs |
|
|
(8,572 |
) |
|
|
|
|
Proceeds from issuance of common stock |
|
|
2,999,632 |
|
|
|
17,875,000 |
|
Issuance costs related to stock issuances |
|
|
(248,293 |
) |
|
|
(90,079 |
) |
Proceeds from exercise of warrants |
|
|
7,595 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities |
|
|
7,758,142 |
|
|
|
11,002,515 |
|
|
|
|
|
|
|
|
|
|
|
Net Increase in Cash and Cash Equivalents |
|
|
3,676,663 |
|
|
|
5,300,279 |
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at beginning of period |
|
|
4,663,618 |
|
|
|
4,229,150 |
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at end of period |
|
$ |
8,340,281 |
|
|
$ |
9,529,429 |
|
|
F-55
|
|
|
|
|
|
|
|
|
Six months ended June 30 |
|
2007 |
|
|
2006 |
|
|
Supplemental Disclosure of Cash Flow Information |
|
|
|
|
|
|
|
|
Cash paid during the periods for interest continuing operations |
|
$ |
12,219 |
|
|
$ |
370,927 |
|
Cash paid during the periods for interest discontinued operations |
|
|
|
|
|
|
42 |
|
Value of warrants issued in exchange for services received |
|
$ |
162,000 |
|
|
$ |
|
|
Supplemental Disclosures of Noncash Investing and Financing Activities:
On June 6, 2007, effective retroactive to May 31, 2007, the Company purchased the assets and assumed
certain liabilities of Texas Energy Products for $305,706 in cash (net of cash acquired of $17,899 and
including transaction costs of $10,818), and 200,000 shares of Lime Energy common stock. The related
assets and liabilities at the date of acquisition were as follows:
|
|
|
|
|
Cash |
|
$ |
17,899 |
|
Accounts receivable |
|
|
78,410 |
|
Inventory |
|
|
67,634 |
|
Other current assets |
|
|
4,800 |
|
Property and equipment |
|
|
7,000 |
|
Identifiable intangible assets |
|
|
496,000 |
|
Cost in excess of assets acquired |
|
|
22,243 |
|
|
|
|
|
Total assets acquired |
|
|
693,986 |
|
|
|
|
|
|
Accounts payable |
|
|
(101,356 |
) |
Accrued expenses |
|
|
(19,241 |
) |
Other current liabilities |
|
|
(35,784 |
) |
|
|
|
|
Total liabilities assumed |
|
|
(156,381 |
) |
|
|
|
|
|
Net assets acquired |
|
|
537,605 |
|
|
|
|
|
|
Less valuation of shares issued for acquisition |
|
|
(214,000 |
) |
Acquisition costs |
|
|
(10,818 |
) |
|
|
|
|
Total cash paid |
|
$ |
312,787 |
|
See accompanying notes to condensed consolidated financial statements
F-56
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
Note 1 Basis of Presentation
The financial information included herein is unaudited; however, such information reflects all
adjustments (consisting solely of normal recurring adjustments), which, in the opinion of
management, are necessary for a fair statement of results for the interim periods.
The results of operations for the three and six months ended June 30, 2007 and 2006 are not
necessarily indicative of the results to be expected for the full year.
For further information, refer to the audited financial statements and the related footnotes
included in the Lime Energy Co. Annual Report on Form 10-K for the year ended December 31, 2006.
Note 2 Stock-based Compensation
The Company accounts for employee stock options in accordance with Statement of Financial
Accounting Standards No. 123(R). This pronouncement requires companies to measure the cost of
employee service received in exchange for a share based award (typically stock options) based on
the fair value of the award, with expense recognized over the requisite service period, which is
generally equal to the vesting period of the option. The Company recognized $1,488,116 and
$246,869 of share based compensation expense related to stock options during the six month period
ended June 30, 2007 and 2006, respectively, and $707,351 and $102,259 during the three month
period ended June 30, 2007 and 2006, respectively.
The weighted-average, grant-date fair value of stock options granted to employees and the
weighted-average significant assumptions used to determine those fair values, using a modified
Black-Scholes option pricing model for stock options under Statement of Financial Accounting
Standards No. 123, are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30 |
|
June 30 |
|
|
2007 |
|
2006 |
|
2007 |
|
2006 |
|
Weighted average fair value
per option granted |
|
$ |
0.75 |
|
|
$ |
0.77 |
|
|
$ |
0.73 |
|
|
$ |
1.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Significant assumptions
(weighted average): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Risk-free rate |
|
|
4.90 |
% |
|
|
5.06 |
% |
|
|
5.01 |
% |
|
|
5.03 |
% |
Dividend yield |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
|
|
0.00 |
% |
Expected volatility |
|
|
88.2 |
% |
|
|
92.1 |
% |
|
|
89.0 |
% |
|
|
91.3 |
% |
Expected life (years) |
|
|
5.8 |
|
|
|
5.7 |
|
|
|
5.5 |
|
|
|
5.6 |
|
|
The risk-free interest rate is based on the U.S. Treasury Bill rates at the time of grant. The
dividend reflects the fact that the Company has never paid a dividend on its common stock and does
not expect to in the foreseeable future. The Company estimated the volatility of its common stock
at the date of grant based on the historical volatility of its stock. The expected term of the
options is based on the simplified method as described in the Staff Accounting Bulletin No. 107,
which is the average of the vesting term and the original contract term.
F-57
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
Option activity under the Companys stock option plans as of June 30, 2007 and changes during the
three months then ended are presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
Exercise |
|
|
Average |
|
|
|
|
|
|
|
Price Per |
|
|
Exercise |
|
|
|
Shares |
|
|
Share |
|
|
Price |
|
|
Outstanding at March 31, 2007 |
|
|
11,022,466 |
|
|
$ |
0.90 - $194.85 |
|
|
$ |
4.01 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
335,000 |
|
|
$ |
0.90 - $ 1.80 |
|
|
$ |
1.10 |
|
Forfeited |
|
|
(61,833 |
) |
|
$ |
0.90 - $ 35.40 |
|
|
$ |
5.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at June 30, 2007 |
|
|
11,295,633 |
|
|
$ |
0.90 - $194.85 |
|
|
$ |
3.92 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at June 30, 2007 |
|
|
5,002,679 |
|
|
$ |
0.90 - $194.85 |
|
|
$ |
7.56 |
|
|
Option activity under the Companys stock option plans as of June 30, 2007 and changes during
the six months then ended are presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
Exercise |
|
|
Average |
|
|
|
|
|
|
|
Price Per |
|
|
Exercise |
|
|
|
Shares |
|
|
Share |
|
|
Price |
|
|
Outstanding at December 31, 2006 |
|
|
10,707,132 |
|
|
$ |
0.96 - $194.85 |
|
|
$ |
4.13 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
685,000 |
|
|
$ |
0.90 - $ 1.80 |
|
|
$ |
1.02 |
|
Forfeited |
|
|
(96,499 |
) |
|
$ |
1.02 - $ 30.75 |
|
|
$ |
6.33 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at June 30, 2007 |
|
|
11,295,633 |
|
|
$ |
0.90 - $194.85 |
|
|
$ |
3.92 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options exercisable at June 30, 2007 |
|
|
5,002,679 |
|
|
$ |
0.90 - $194.85 |
|
|
$ |
7.56 |
|
|
The following table summarizes information about stock options outstanding at June 30, 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Outstanding |
|
|
Options Exercisable |
|
|
|
|
|
|
|
Weighted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average |
|
|
Weighted |
|
|
|
|
|
|
Weighted |
|
|
|
Number |
|
|
Remaining |
|
|
Average |
|
|
Number |
|
|
Average |
|
|
|
Outstanding at |
|
|
Contractual |
|
|
Exercise |
|
|
Exercisable at |
|
|
Exercise |
|
Exercise Price |
|
June 30, 2007 |
|
|
Life |
|
|
Price |
|
|
June 30, 2007 |
|
|
Price |
|
|
$ 0.90 - $ 1.00 |
|
|
3,865,000 |
|
|
9.1 years |
|
$ |
0.96 |
|
|
|
319,000 |
|
|
$ |
0.96 |
|
$ 1.01 - $ 1.10 |
|
|
6,507,500 |
|
|
9.1 years |
|
|
1.02 |
|
|
|
3,912,209 |
|
|
|
1.02 |
|
$ 1.11 - $ 10.00 |
|
|
235,000 |
|
|
9.4 years |
|
|
4.67 |
|
|
|
100,000 |
|
|
|
9.30 |
|
$10.01 - $194.85 |
|
|
688,133 |
|
|
2.9 years |
|
|
47.70 |
|
|
|
671,470 |
|
|
|
48.51 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,295,633 |
|
|
8.7 years |
|
$ |
3.92 |
|
|
|
5,002,679 |
|
|
$ |
7.56 |
|
|
F-58
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
The aggregate intrinsic value of the outstanding options (the difference between the closing
stock price on the last trading day of the second quarter of 2007 of $1.90 per share and the
exercise price, multiplied by the number of vested in-the-money options) that would have been
received by the option holders had all option holders exercised their options on June 30, 2007 was
$3,733,605. This amount will change based on changes in the fair market value of the Companys
common stock and as additional options vest in the future.
As of June 30, 2007, $2,378,952 of total unrecognized compensation cost related to stock options is
expected to be recognized over a weighted-average period of 1.11 years.
Note 3 Acquisition of Texas Energy Products
On June 6, 2007, effective retroactive to May 31, 2007, the Company entered into an Asset Purchase
Agreement with George Bradley Boyett dba Texas Energy Products. Pursuant to the agreement, Texas
Energy Products, Inc., a newly formed wholly owned subsidiary of the Lime Energy, acquired all of
the business assets and assumed certain liabilities held by Mr. Boyett for $300,000 in cash and
200,000 shares of Lime Energy common stock. For accounting purposes the common stock was valued at
$1.07 per share, the average closing price of the stock for the 20 trading days immediately prior
to the closing. The acquisition was recorded using the purchase method of accounting.
Texas Energy Products is an energy services company that specializes in energy efficient lighting
upgrades, window film and energy efficient roofing. Texas Energy Products has four employees and
is headquartered in Austin, Texas.
The results of Texas Energy Products have been included in the consolidated statement of operations
since June 1, 2007. The pro forma operating results as if the Company had completed the
acquisition as of the beginning of the periods presented are not significant to the Companys
financial statements and are not presented.
The assets acquired and liabilities assumed in the acquisition are based on a preliminary
allocation as follows:
|
|
|
|
Cash |
|
$ |
17,899 |
Accounts receivable |
|
|
78,410 |
Inventory |
|
|
67,634 |
Other current assets |
|
|
4,800 |
Property and equipment |
|
|
7,000 |
Identifiable intangible assets |
|
|
496,000 |
Goodwill |
|
$ |
22,243 |
|
|
|
|
Accounts payable |
|
$ |
101,356 |
Accrued expenses |
|
|
19,241 |
Other current liabilities |
|
$ |
35,784 |
Utilizing an independent third party valuation firm, the Company has assessed the fair values
of assets and liabilities of Texas Energy Products and allocated the purchase price accordingly.
For purposes of the allocation, it has allocated $496,000 of the Texas Energy Products purchase
price to identifiable intangible assets with definitive lives such as sales backlog and the sales
pipeline. This amount has been
F-59
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
capitalized and will be amortized over the estimated useful life of the related identifiable
intangible assets. Amortization of intangibles such as these are generally not deductible for tax
purposes. The amounts capitalized and the estimated useful life of the identifiable intangible
assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
Estimated |
Asset Class |
|
Value |
|
Useful Life |
|
Sales backlog |
|
$ |
223,000 |
|
|
3 Months |
Sales pipeline |
|
|
273,000 |
|
|
6 Months |
|
Goodwill at the date of acquisition of Texas Energy Products is based on a preliminary
internal valuation study. Therefore, reported amounts may change based on finalization, which is
expected to occur during the fourth quarter of 2007.
Note 4 Recent Accounting Pronouncements
In July 2006, the FASB issued Interpretation No. 48, Accounting for Uncertainty in Income Taxes,
an interpretation of FASB Statement No. 109 (FIN 48). FIN 48 provides guidance on the financial
statement recognition and measurement of a tax position taken or expected to be taken in a return.
FIN 48 requires that companies recognize in their financial statements the impact of a tax position
if that position more likely than not will be sustained on an audit, based on the technical merits
of the position. FIN 48 also provides guidance on derecognition, classification, interest and
penalties, accounting in interim periods, disclosures and transition provisions. The Company
adopted FIN 48 on January 1, 2007. As a result of the implementation of FIN 48, no adjustment to
retained earnings was made.
The Companys subsidiaries file income tax returns in various tax jurisdictions, including the
United States and certain U.S. states. The Company has substantially concluded all US Federal and
State income tax matters for years up to and including 2001.
The Company has recorded a valuation allowance equaling the deferred tax asset due to the
uncertainty of its realization in the future. At December 31, 2006, the Company had US federal net
operating loss carryforwards available to offset future taxable income of approximately $64
million, which expire in the years 2018 through 2026. Under section 382 of the Internal Revenue
Code of 1986, as amended, the utilization of US net operating loss carryforwards may be limited
under the change in stock ownership rules of the IRC. As a result of ownership changes as defined
by Section 382, which have occurred at various points in the Companys history, utilization of its
net operating loss carryforwards will likely be significantly limited under certain circumstances.
The Companys policy is to recognize interest and penalties related to income tax matters in
interest and income tax expense respectively. There were no interest and penalties related to
income taxes recorded at January 1, 2007, the date of adoption of FIN 48.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and
Financial LiabilitiesIncluding an Amendment of FASB Statement No. 115, which permits entities to
choose to measure many financial instruments and certain other items at fair value. The objective
is to improve financial reporting by providing entities with the opportunity to mitigate volatility
in reported earnings caused by measuring related assets and liabilities differently without having
to apply complex hedge accounting provisions. This Statement is expected to expand the use of fair
value measurement, which is consistent with the FASBs long-term measurement objectives for
accounting for financial
F-60
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
instruments. This Statement is effective as of the beginning of an entitys first fiscal year that
begins after November 15, 2007. The Company will adopt this Statement effective January 1, 2008.
The Company is currently evaluating the impact that the adoption of SFAS No. 159 will have on its
consolidated results of operations and financial position.
In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements, which defines fair value,
establishes a framework for measuring fair value and expands disclosures about fair value
measurements. The statement is effective for fiscal years beginning after November 15, 2007. The
Company is currently evaluating the impact of adopting SFAS No. 157 on its condensed consolidated
financial statements.
Note 5 Cost in Excess of Assets Acquired
Changes in goodwill during 2007 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy |
|
Energy |
|
|
|
|
Technology |
|
Services |
|
Total |
|
Balance at December 31, 2006 |
|
$ |
4,155,661 |
|
|
$ |
6,295,307 |
|
|
$ |
10,450,968 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Release of escrow shares |
|
|
26,308 |
|
|
|
|
|
|
|
26,308 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of Texas Energy
Products |
|
|
|
|
|
|
22,243 |
|
|
|
22,243 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at June 30, 2007 |
|
$ |
4,181,969 |
|
|
$ |
6,317,550 |
|
|
$ |
10,499,519 |
|
|
Goodwill represents the purchase price in excess of the fair value of assets acquired in
business combinations. Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and
Other Intangible Assets, requires the Company to assess goodwill for impairment at least annually
in the absence of an indicator of possible impairment and immediately upon an indicator of possible
impairment.
Note 6 Net Loss Per Share
The Company computes loss per share under Statement of Financial Accounting Standards (SFAS) No.
128 Earnings Per Share, which requires presentation of two amounts: basic and diluted loss per
common share. Basic loss per common share is computed by dividing loss available to common
stockholders by the number of weighted average common shares outstanding, and includes all common
stock issued. Diluted earnings would include all common stock equivalents. The Company has not
included the outstanding options, warrants or shares issuable upon conversion of the preferred
stock and convertible debt as common stock equivalents in the computation of diluted loss per share
for the three months or six months ended June 30, 2007 and 2006 because the effect would be
antidilutive.
F-61
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
The following table sets forth the weighted average shares issuable upon exercise of outstanding
options and warrants and conversion of preferred stock and convertible debt that are not included
in the basic and diluted loss per share available to common stockholders because to doing would be
antidilutive:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six months Ended |
|
|
June 30 |
|
June 30 |
|
|
2007 |
|
2006 |
|
2007 |
|
2006 |
|
Weighted average shares
issuable upon exercise of
outstanding options |
|
|
11,148,255 |
|
|
|
867,618 |
|
|
|
11,078,283 |
|
|
|
853,003 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares
issuable upon exercise of
outstanding warrants |
|
|
1,997,618 |
|
|
|
1,073,869 |
|
|
|
1,705,160 |
|
|
|
1,075,968 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares
issuable upon conversion
of preferred stock
(1) |
|
|
|
|
|
|
1,516,671 |
|
|
|
|
|
|
|
1,533,889 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares
issuable upon conversion of
convertible debt |
|
|
1,662,088 |
|
|
|
338,860 |
|
|
|
835,635 |
|
|
|
356,740 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
14,807,961 |
|
|
|
3,797,018 |
|
|
|
13,619,078 |
|
|
|
3,819,600 |
|
|
(1) |
|
All of the outstanding shares of convertible preferred stock were converted to common
stock on June 29, 2006. |
As discussed in Note 5 to the Companys annual report on Form 10-K for the year ended December
31, 2006, in connection with the acquisition of MPG, 166,148 shares of common stock were deposited
in escrow for the benefit of the selling shareholders to be released over the two year period
following the April 30, 2005 purchase of MPG if MPG achieved certain revenue targets during the
period. In May 2007 the Company determined that 19,729 shares were owed to the former MPG
stockholders and issued them accordingly. The remaining 146,419 shares were returned to the
Company and canceled. While these shares were being held in escrow they were not included in the
calculation of the weighted average common shares outstanding since their release was uncertain.
Note 7 Warranty Obligations
The Company warrants to the purchasers of the products that it produces that the products will be
free of defects in material and workmanship for one year from the date of installation. In
addition, some customers have purchased extended warranties for the Companys products that extend
the base warranty for up to ten years. The Company records the estimated cost that may be incurred
under its warranties at the time revenue is recognized based upon the relationship between
historical and anticipated warranty costs and sales volumes. The Company periodically assesses the
adequacy of its recorded warranty liability and adjusts the amounts as necessary. While the
Company believes that its estimated warranty
F-62
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
liability is adequate and that the judgment applied is appropriate, the estimated liability for
warranties could differ materially from actual future warranty costs. Changes in the Companys
warranty liability are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30 |
|
June 30 |
|
|
2007 |
|
2006 |
|
2007 |
|
2006 |
|
Balance, beginning of period |
|
$ |
199,075 |
|
|
$ |
188,254 |
|
|
$ |
196,783 |
|
|
$ |
208,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warranties issued |
|
|
9,674 |
|
|
|
15,750 |
|
|
|
21,823 |
|
|
|
29,250 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Settlements |
|
|
|
|
|
|
(11,423 |
) |
|
|
(9,857 |
) |
|
|
(44,969 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, as of June 30 |
|
$ |
208,749 |
|
|
$ |
192,581 |
|
|
$ |
208,749 |
|
|
$ |
192,581 |
|
|
Note 8 Inventories
Inventories consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
December 31, |
|
|
2007 |
|
2006 |
|
Raw materials |
|
$ |
1,563,507 |
|
|
$ |
1,010,995 |
|
|
|
|
|
|
|
|
|
|
Work in process |
|
|
|
|
|
|
3,700 |
|
|
|
|
|
|
|
|
|
|
Finished goods |
|
|
167,162 |
|
|
|
196,586 |
|
|
|
|
|
|
|
|
|
|
Reserve for obsolescence (1) |
|
|
(616,448 |
) |
|
|
(596,790 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,114,221 |
|
|
$ |
614,491 |
|
|
(1) |
|
Includes $553,909 reserve for obsolete EnergySaver inventory |
F-63
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
Note 9 Dividends
Dividends are comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30 |
|
June 30 |
|
|
2007 |
|
2006 |
|
2007 |
|
2006 |
|
Accrual of dividend on Series
E Convertible Preferred |
|
$ |
|
|
|
$ |
349,100 |
|
|
$ |
|
|
|
$ |
698,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with change in conversion
price of the Series E
Convertible Preferred
Stock (1) |
|
|
|
|
|
|
23,085,467 |
|
|
|
|
|
|
|
23,085,467 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend associated
with change in exercise
price of warrants issued to
the preferred investors |
|
|
|
|
|
|
297,868 |
|
|
|
|
|
|
|
564,258 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
|
|
|
$ |
23,732,435 |
|
|
$ |
|
|
|
$ |
24,347,725 |
|
|
(1) |
|
The holders of the Companys Series E convertible preferred stock converted all of
their shares of preferred stock into common stock on June 29, 2006. |
Note 10 Subordinated Convertible Term Note
During the second quarter of 2007, eight investors, including Richard Kiphart, the Companys
chairman and largest individual stockholder (collectively the Investors), and the Company entered
into a loan agreement under which the Investors lent the Company $5 million in the form of
subordinated convertible term notes (the Term Notes). The term loan matures on May 31, 2010,
although it may be prepaid at anytime after May 31, 2008 at the Companys option without penalty,
and accrues interest at the rate of 10% per year. Interest is payable quarterly, 50% in cash and
50% in shares of the Companys common stock valued at the market price of the Companys common
stock on the interest due date. The term notes are convertible at any time at the Investors
election at $1.00 per share and will automatically convert to shares of common stock at $1.00 per
share, if, at any time after May 31, 2008 the closing price of the common stock exceeds $1.50 per
share for 20 days in any consecutive 30-day period. The loan is secured by all of the Companys
assets, but is subordinated to all of the Companys current or future senior lenders, including its
current mortgage lender. The loan agreement provides for acceleration upon the occurrence of
typical events of default, including nonpayment, nonperformance, bankruptcy and collateral
impairment.
As part of the transaction, the Company issued the Investors four-year warrants to purchase
1,442,306 shares of its common stock at $1.04 per share. These warrants were valued at $1,136,537
utilizing a modified-Black Scholes option pricing model.
F-64
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
The shares issued as part of the quarterly interest payments and issuable upon conversion of the
term loan or exercise of the warrants will not be registered for resale, though the Company has
given the Investors the right to demand the Company use its best efforts to file as soon as
practicable a registration statement to register a minimum of 1 million issued shares.
In recording the transaction, the Company allocated the value of the proceeds to the Term Notes and
warrants based on their relative fair values. In doing so, it determined that the Term Notes
contained a beneficial conversion feature since the fair market value of the common stock issuable
upon conversion of the Term Notes (determined on the Term Note issuance date) exceeded the value
allocated to the Term Notes of $3,863,563. The Term Notes are convertible into 5 million shares of
common stock, which at the market price of $1.15 per share on the Term Note issuance date was worth
$5,730,000. The difference between the market value of the shares issuable upon conversion and the
value allocated to the Term Notes of $1,866,537 is considered to be the value of the beneficial
conversion feature. This calculation is summarized as follows:
|
|
|
|
|
Value Allocated to Term Notes: |
|
|
|
|
Proceeds from issuance |
|
$ |
5,000,000 |
|
Less value allocated to warrants |
|
|
(1,136,537 |
) |
|
|
|
|
|
|
|
|
|
Value allocated to Term Notes |
|
$ |
3,863,463 |
|
|
|
|
|
|
|
|
|
|
Market Value of Shares Issuable Upon Conversion: |
|
|
|
|
Shares issuable upon conversion of the Term Notes |
|
|
5,000,000 |
|
Closing market value of stock on term note issuance date |
|
$ |
1.15 |
|
|
|
|
|
|
|
|
|
|
Market value of shares issuable upon conversion |
|
|
5,730,000 |
|
|
|
|
|
|
Beneficial Conversion Value: |
|
|
|
|
Market value of shares issuable upon conversion |
|
$ |
5,730,000 |
|
Less value allocated to Term Notes |
|
|
(3,863,463 |
) |
|
|
|
|
|
|
|
|
|
Value of beneficial conversion feature |
|
$ |
1,866,537 |
|
|
|
|
|
The value of the beneficial conversion feature has been recorded as a discount to the Term
Notes and is being amortized over the term of the Term Notes using the effective interest method.
Amortization of the discount of $87,521 was included in interest expense during the three month
period ended June 30, 2007.
In addition, the Company incurred expenses of $8,572 relative to the Term Note offering. These
expenses have been capitalized and are also being amortized over the term of the Term Notes using
the effective interest method. Amortization of the deferred issuance costs of $250 was included in
interest expense during the three month period ended June 30, 2007.
F-65
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
Note 11 Business Segment Information
The Company is organized and manages its business in two distinct segments: the Energy Technology
segment and the Energy Services segment. In classifying its operational entities into a particular
segment, the Company segregated its businesses with similar economic characteristics, products and
services, production processes, customers, and methods of distribution into distinct operating
groups.
The Energy Technology segment designs, manufactures and markets energy saving technologies,
primarily to commercial and industrial customers. The principal products produced and marketed by
this segment are the eMAC line of HVAC and lighting controllers and the EnergySaver line of
lighting controllers (which the Company ceased actively marketing in late 2006). Operations of
Lime Energy Co. (formerly known as Electric City Corp.) and Maximum Performance Group, Inc. are
included in this segment. Lime Energy is headquartered and its operations are located in Elk Grove
Village, Illinois. Maximum Performance Group is headquartered in San Diego, California and has a
sales office in New York City.
The Energy Services segment includes the operations of Parke Industries, LLC, Kapadia Energy
Services, Inc., Lime Midwest, Inc. and Texas Energy Products, Inc. Parke, which the Company
acquired effective June 30, 2006, and Texas Energy Products, Inc., which was acquired effective May
31, 2007, designs, engineers and installs energy efficient lighting upgrades for commercial and
industrial users. Lime Midwest is a subsidiary that was created in January 2007 and is based in
Elk Grove Village, Illinois. Kapadia, which the Company acquired effective September 27, 2006,
provides energy engineering services to assist customers in improving their energy efficiency and
to better manage their energy costs. Kapadia also designs, engineers and manages the installation
of energy efficient lighting upgrades for commercial and industrial users, but unlike Parke,
contracts the installation to third party electrical contractors. Parke is headquartered in
Glendora, California and has offices in Danville and Carmel, California and Salt Lake City, Utah.
Kapadia is headquartered in Peekskill, New York and has an office in Ventura, California. Texas
Energy is located in Austin, Texas.
In June 2007, the Company created a new subsidiary, Lime Finance Inc. to provide liquidity for
extended receivables created by Limes other subsidiaries. As of June 30, 2007 there were no
assets held by Lime Finance and it had no operating activity.
Prior to March 31, 2006, the Company also operated a Building Control and Automation segment, which
was comprised of its Great Lakes Controlled Energy subsidiary. This segment provided integration
of building and environmental control systems for commercial and industrial customers. The Company
sold Great Lakes effective March 31, 2006, and its results are included in discontinued operations
for the six-month period ended June 30, 2006.
F-66
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
The following is the Companys business segment information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended |
|
Six Months Ended |
|
|
June 30 |
|
June 30 |
|
|
2007 |
|
2006 |
|
2007 |
|
2006 |
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
$ |
1,019,304 |
|
|
$ |
1,334,818 |
|
|
$ |
1,865,804 |
|
|
$ |
2,481,163 |
|
Energy Services |
|
|
3,083,389 |
|
|
|
|
|
|
|
4,788,232 |
|
|
|
|
|
Intercompany sales |
|
|
|
|
|
|
|
|
|
|
(22,796 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
4,102,693 |
|
|
|
1,334,818 |
|
|
|
6,631,240 |
|
|
|
2,481,163 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Loss: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Energy Technology |
|
|
(578,993 |
) |
|
|
(889,603 |
) |
|
|
(1,394,932 |
) |
|
|
(1,882,344 |
) |
Energy Services |
|
|
(226,494 |
) |
|
|
|
|
|
|
(933,471 |
) |
|
|
|
|
Corporate overhead |
|
|
(1,166,437 |
) |
|
|
(806,317 |
) |
|
|
(2,984,175 |
) |
|
|
(1,501,548 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
(1,971,924 |
) |
|
|
(1,695,920 |
) |
|
|
(5,312,578 |
) |
|
|
(3,383,892 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expense, net |
|
|
(71,629 |
) |
|
|
(2,963,898 |
) |
|
|
(41,914 |
) |
|
|
(3,211,106 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss From
Continuing Operations |
|
$ |
(2,043,553 |
) |
|
$ |
(4,659,818 |
) |
|
$ |
(5,354,492 |
) |
|
$ |
(6,594,998 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
June 30, |
|
|
December |
|
|
|
2007 |
|
|
31, 2006 |
|
|
Total Assets: |
|
|
|
|
|
|
|
|
Energy Technology |
|
$ |
7,261,199 |
|
|
$ |
7,409,969 |
|
Energy Services |
|
|
13,916,497 |
|
|
|
12,490,617 |
|
Corporate overhead |
|
|
9,483,137 |
|
|
|
5,496,279 |
|
|
|
|
|
|
|
|
|
|
|
Total |
|
$ |
30,660,833 |
|
|
$ |
25,396,865 |
|
|
Note 12 Acquisition of Parke P.A.N.D.A. Corporation
On June 30, 2006, Electric City entered into an agreement by and among the Company, Parke
Acquisition, LLC, a wholly-owned subsidiary of Electric City (Merger Subsidiary), Parke
P.A.N.D.A. Corporation (Parke), Daniel Parke and Daniel W. Parke and Michelle A. Parke as
Trustees under The Parke Family Trust, in which it acquired Parke pursuant to the merger of Parke
with and into Merger Subsidiary, with Merger Subsidiary continuing as the surviving corporation
under the name Parke Industries, LLC.
The merger consideration consisted of $2,720,000 in cash and 5,000,000 shares of Electric City
common stock, all of which was paid to The Parke Family Trust, the sole stockholder of Parke, which
is beneficially owned by Daniel Parke and his spouse, Michelle A. Parke, who are also the trustees
of such Trust. As a result of the merger, Merger Subsidiary became responsible for the liabilities
of Parke, including $400,000 due on its line of credit and approximately $46,000 in various vehicle
loans. The acquisition will be recorded using the purchase method of accounting.
F-67
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
Parke is an energy services provider specializing in the design, engineering and installation of
energy efficient lighting upgrades for commercial and industrial users. Parke has 30 employees and
is headquartered in Glendora, California with offices in Danville and Carmel, California.
Dan Parke, the president and founder of Parke continues to serve as the President of Parke and as
of June 30, 2006 also assumed the position of President and Chief Operating Officer of Electric
City. Mr. Parke also continues to serve as a director of Electric City.
The assets acquired and liabilities assumed in the acquisition are as follows:
|
|
|
|
Accounts receivable |
|
$ |
710,465 |
Inventory |
|
|
142,789 |
Other current assets |
|
|
7,088 |
Net property and equipment |
|
|
79,917 |
Identifiable intangible assets |
|
|
3,250,000 |
Goodwill |
|
|
4,533,741 |
|
|
|
|
Line of credit |
|
|
400,000 |
Accounts payable |
|
|
338,536 |
Accrued expenses |
|
|
89,571 |
Notes payable |
|
|
45,763 |
Other current liabilities |
|
|
368 |
Utilizing an independent third party valuation firm, the Company has assessed the fair values
of assets and liabilities of Parke and allocated the purchase price accordingly. For purposes of
the allocation, it has allocated $620,000 of the Parke purchase price to identifiable intangible
assets with definitive lives such as customer contracts, sales pipeline and the non-compete
agreement with Dan Parke. This amount has been capitalized and will be amortized over the estimated
useful life of the related identifiable intangible assets. It also allocated $2,630,000 to the
Parke trade name, which will not be amortized. Amortization of intangibles such as these are
generally not deductible for tax purposes. The amounts capitalized and the estimated useful life
of the identifiable intangible assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
Estimated |
|
Estimated |
Asset Class |
|
Value |
|
Useful Life |
Non-compete agreement |
|
$ |
362,000 |
|
|
2 Years |
Customer contracts |
|
|
206,000 |
|
|
1 month |
Sales pipeline |
|
|
52,000 |
|
|
5 months |
Trade name |
|
|
2,630,000 |
|
|
Indefinite |
F-68
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
The acquisition was recorded using the purchase method of accounting, accordingly, none of the
results of the Parkes operations have been included in the consolidated statement of operations.
Unaudited pro forma results of operations for the three and six months ended June 30, 2006 for the
Company and Parke, assuming the acquisition took place on January 1, 2006, are as follows:
|
|
|
|
|
|
|
|
|
|
|
Three Months |
|
Six Months |
|
|
Ended |
|
Ended |
|
|
June 30, 2006 |
|
June 30, 2006 |
Revenue: |
|
|
|
|
|
|
|
|
As Reported |
|
$ |
1,334,818 |
|
|
$ |
2,481,163 |
|
Proforma |
|
|
2,211,728 |
|
|
|
4,364,993 |
|
|
|
|
|
|
|
|
|
|
Net Loss From Continuing Operations: |
|
|
|
|
|
|
|
|
As Reported |
|
|
(4,659,818 |
) |
|
|
(6,594,998 |
) |
Pro-forma |
|
|
(5,056,402 |
) |
|
|
(6,773,211 |
) |
|
|
|
|
|
|
|
|
|
Basic and Diluted Loss per Share From
Continuing Operations: |
|
|
|
|
|
|
|
|
As Reported |
|
|
(6.49 |
) |
|
|
(7.94 |
) |
Pro-forma |
|
|
(2.38 |
) |
|
|
(2.68 |
) |
Note 13 Equity Issuances
a) |
|
During January 2007, the Company issued consultants warrants with terms of two to three years
to purchase 420,000 shares of its common stock at prices of $1.00 to $1.08 per share as
partial consideration for services provided the Company. These warrants were initially valued
at $250,500 using a modified Black-Scholes option pricing model utilizing the following
assumptions: risk free rate of 5.129%, expected volatility of 88.9%, expected dividend of $0
and expected life of two to three years. One of these warrants was exercisable only if
certain objectives were achieved by the consultant prior to August 1, 2007. The value of
theses warrants were charged to operations during the first quarter of 2007. During second
quarter of 2007 the Company determined the consultant was unlikely to meet the objective
necessary for the warrant to vest, therefore it reversed $88,500 of expense it had previously
recorded in connection with this warrant. |
F-69
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
b) |
|
A provision of the June 2006 PIPE transaction required the Company to file and have declared
effective by no later than November 3, 2006, a registration statement registering the shares
issued as part of the transaction. To the extent that it failed to have the registration
statement declared effective by this date, it was required to pay penalties to the PIPE
investors at the rate of 1% of the purchase price paid by the investors per month. Largely as
a result of the questions regarding the need to amend its Certificate of Incorporation to
effect the reverse split of its stock, the Company was not able to have the registration
statement declared effective until February 14, 2007. All of the investors in the PIPE
transaction agreed to accept shares of the Companys common stock as payment of this
registration penalty. As of December 31, 2006, the Company had accrued $345,583 in penalties
related to its failure to register these shares. These accrued penalties, along with $268,125
of penalties for the period from January 1, 2007 through February 14, 2007, were satisfied
through the issuance of 613,708 shares of common stock in January and February 2007. |
c) |
|
On February 23, 2007, the Company commenced a rights offering to stockholders in which it
distributed to each holder of record as of February 23, 2007 (other than the former Series E
Preferred stockholders and Daniel Parke, who waived their rights to participate), five
non-transferable subscription rights to purchase shares of the Companys common stock at $1.00
per share. Stockholders that participated in the rights offering were also able to subscribe
for any shares that were not purchased by other stockholders pursuant to their subscription
rights. The rights offering closed on March 30, 2007 and raised a total of $2,999,632 through
the issuance of 2,999,632 shares of common stock to 260 of the Companys existing
stockholders. The Company received the proceeds from the offering and issued the common stock
to the participants during the first week of April 2007. |
d) |
|
In connection with the placement of the subordinated convertible term notes during the second
quarter of 2007 (see Note 10) the Company issued four-year warrants to eight investors,
including Richard Kiphart, the Companys chairman and largest individual stockholder, to
purchase 1,442,306 shares of its common stock at $1.04 per share. These warrants were valued
at $1,136,537 using a modified-Black Scholes option pricing model utilizing the following
assumptions: risk free rate of 4.846%, expected volatility of 93.3%, expected dividend of $0
and expected life of four years. The value of the warrants was recorded as a discount to the
subordinated convertible term notes and will be amortized over the life of the notes using the
effective interest method. |
e) |
|
During the second quarter of 2007 five investors exercised their warrants to purchase 10,078
shares of the Companys common stock at $0.90 per share. |
f) |
|
As discussed in Note 5 to the Companys annual report on Form 10-K for the year ended
December 31, 2006, as part of the MPG acquisition, 166,148 shares of common stock were
deposited in escrow for the benefit of the selling stockholders of MPG to be released over the
two year period following the April 30, 2005 purchase of MPG if it achieved certain revenue
targets during the period. During May 2007 the Company issued 19,729 shares to the former
MPG stockholders which it determined it owed them pursuant to the MPG merger agreement. These
shares were valued at $1.27 per share, the market value on the date of their release, and
recorded as an increase in the goodwill associated with the MPG acquisition. The remaining
146,419 shares that were in escrow were returned to the Company and canceled. |
F-70
Lime Energy Co.
Notes to Condensed Consolidated Financial Statements
g) |
|
Delano Group Securities LLC acted as an advisor on the acquisition of MPG in 2005. Part of
Delanos compensation for its services was tied to the purchase price paid for MPG. Mr. David
Asplund owned and operated Delano prior to joining Lime Energy as its CEO in January 2006.
Since the release of the escrow shares was considered a payment of additional consideration to
the former stockholders of MPG, the Company issued Mr. Asplund 986 shares of its common stock
in May 2007 in satisfaction of the commission owed Delano. |
h) |
|
On June 6, 2007, retroactive to May 31, 2007, the Company acquired the assets and assumed
certain liabilities of George Bradley Boyett dba Texas Energy Products. The purchase
consideration consisted of 200,000 shares of Lime Energy common stock and cash of $312,787.
Please refer to Note 3 for additional information regarding this transaction. |
i) |
|
On June 30, 2007, the Company issued 10,955 shares of its common stock to the holders of its
subordinated convertible term notes in satisfaction of 50% of the interest owed on the note.
Please refer to Note 10 for additional information regarding this note. |
Note 14 Related Party Transactions
During the second quarter of 2007, the Company entered into a loan agreement with eight investors,
including Richard Kiphart, its chairman and largest individual stockholder, under which the
investors lent the company $5 million in the form of convertible subordinated term notes. Mr.
Kiphart invested a total of $3.1 million in the notes. For additional information regarding the
subordinated convertible term notes please refer to Note 10.
Delano Group Securities LLC acted as an advisor on the acquisition of MPG in 2005. Part of
Delanos compensation for its services was tied to the purchase price paid for MPG. Mr. David
Asplund owned and operated Delano prior to joining Lime Energy as its CEO in January 2006. In May
2007, the Company released to the former stockholders of MPG, 19,729 shares of its stock that had
been held in escrow pending the achievement of certain revenue targets by MPG during the 2 year
period following the acquisition of the company. Daniel Parke, the Companys President and COO was
a stockholder in MPG prior to joining the Company in June 2006. Mr. Parke received 1,701 of the
shares released from escrow in May 2007. Since the release of the escrow shares was considered a
payment of additional consideration to the former stockholders of MPG, the Company issued Mr.
Asplund 986 shares of its common stock in May 2007 in satisfaction of the commission owed Delano.
Note 15 Subsequent Event
On August 6, 2007, the Company, through its newly formed wholly owned subsidiary, PLI Acquisition
Corp., acquired the assets and assumed certain liabilities of Preferred Lighting, Inc. for
$300,000 in cash, 105,485 shares of the Companys common stock, warrants exercisable for the
purchase of up to 150,000 shares of the Companys common stock (the vesting of such warrants to be
contingent on the financial performance of PLI Acquisition from the closing through December 31,
2007), and an earnout payment contingent on the financial performance of PLI Acquisition from the
closing date through December 31, 2007. Preferred Lighting is an energy services company
specializing in the sale of energy efficient lighting upgrades. Preferred Lighting is located in
Seattle, Washington and has four employees.
F-71
Report of Independent Registered Public Accounting Firm
Parke P.A.N.D.A. Corporation
Glendora, California
We have audited the accompanying balance sheets of Parke P.A.N.D.A. Corporation as of December 31,
2005 and 2004, and the related statements of income, stockholders equity and cash flows for the
two year period ended December 31, 2005. These financial statements are the responsibility of the
Companys management. Our responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. The
Company is not required to have, nor were we engaged to perform, an audit of its internal control
over financial reporting. Our audits included consideration of internal control over financial
reporting as a basis for designing audit procedures that are appropriate in the circumstances, but
not for the purpose of expressing an opinion on the effectiveness of the Companys internal control
over financial reporting. Accordingly, we express no such opinion. An audit also includes
examining, on a test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates made by management,
as well as evaluating the overall presentation of the financial statements. We believe that our
audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material
respects, the financial position of Parke P.A.N.D.A. Corporation at December 31, 2005 and 2004, and
the results of its operations and its cash flows for the two year period ended December 31, 2005,
in conformity with accounting principles generally accepted in the United States of America.
|
|
|
Chicago, Illinois
|
|
/s/ BDO SEIDMAN, LLP |
August 11, 2006 |
|
|
F-72
Parke P.A.N.D.A. Corporation
Balance Sheets
|
|
|
|
|
|
|
|
|
December 31, |
|
2005 |
|
|
2004 |
|
|
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets |
|
|
|
|
|
|
|
|
Cash |
|
$ |
152,412 |
|
|
$ |
5,579 |
|
Accounts receivable, net of allowance of $10,000 at
December 31, 2005 and 2004 |
|
|
329,316 |
|
|
|
332,682 |
|
Inventories |
|
|
158,796 |
|
|
|
57,312 |
|
Other |
|
|
|
|
|
|
614 |
|
|
|
|
|
|
|
|
|
|
|
Total Current Assets |
|
|
640,524 |
|
|
|
396,187 |
|
|
|
|
|
|
|
|
|
|
Net Property and Equipment (Note 3) |
|
|
54,299 |
|
|
|
39,611 |
|
|
|
|
|
|
|
|
|
|
Intangibles, net of amortization of $2,059 and $1,602 at
December 31, 2005 and 2004, respectively |
|
|
229 |
|
|
|
686 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
695,052 |
|
|
$ |
436,484 |
|
|
F-73
Parke P.A.N.D.A. Corporation
Balance Sheets
|
|
|
|
|
|
|
|
|
December 31, |
|
2005 |
|
|
2004 |
|
|
Liabilities and Stockholders Equity |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities |
|
|
|
|
|
|
|
|
Line of credit (Note 4) |
|
$ |
|
|
|
$ |
38,646 |
|
Current maturities of long-term debt (Note 5) |
|
|
5,564 |
|
|
|
9,821 |
|
Accounts payable |
|
|
235,355 |
|
|
|
111,005 |
|
Accrued expenses |
|
|
56,698 |
|
|
|
30,187 |
|
Due to stockholder |
|
|
|
|
|
|
32,332 |
|
|
|
|
|
|
|
|
|
|
|
Total Current Liabilities |
|
|
297,617 |
|
|
|
221,991 |
|
|
|
|
|
|
|
|
|
|
Long-Term Debt, less current maturities (Note 5) |
|
|
8,170 |
|
|
|
13,734 |
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities |
|
|
305,787 |
|
|
|
235,725 |
|
|
|
|
|
|
|
|
|
|
Commitments (Note 6) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders Equity |
|
|
|
|
|
|
|
|
Common stock, no par value; 1,000,000 shares authorized,
1,000 issued and outstanding at December 31, 2005
and 2004 |
|
|
10,000 |
|
|
|
10,000 |
|
Accumulated earnings |
|
|
379,265 |
|
|
|
190,759 |
|
|
|
|
|
|
|
|
|
|
|
Total Stockholders Equity |
|
|
389,265 |
|
|
|
200,759 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
695,052 |
|
|
$ |
436,484 |
|
|
F-74
Parke P.A.N.D.A. Corporation
Statements of Income
|
|
|
|
|
|
|
|
|
|
|
Year ended |
|
|
Year ended |
|
|
|
December 31, |
|
|
December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
Revenue |
|
$ |
3,342,731 |
|
|
$ |
2,012,638 |
|
|
|
|
|
|
|
|
|
|
Expenses |
|
|
|
|
|
|
|
|
Cost of sales |
|
|
2,120,765 |
|
|
|
1,307,047 |
|
Selling, general and administrative |
|
|
838,092 |
|
|
|
568,956 |
|
|
|
|
|
2,958,857 |
|
|
|
1,876,003 |
|
|
|
|
|
|
|
|
|
|
|
Operating Income |
|
|
383,874 |
|
|
|
136,635 |
|
|
|
|
|
|
|
|
|
|
Other Expense |
|
|
|
|
|
|
|
|
Interest expense |
|
|
8,300 |
|
|
|
8,940 |
|
|
|
|
|
|
|
|
|
|
|
Net Income |
|
$ |
375,574 |
|
|
$ |
127,695 |
|
|
F-75
Parke P.A.N.D.A. Corporation
Statements of Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
Common |
|
|
Common |
|
|
Accumulated |
|
|
Stockholders |
|
|
|
Shares |
|
|
Stock |
|
|
Earnings |
|
|
Equity |
|
|
Balance, January 1, 2004 |
|
|
1,000 |
|
|
$ |
10,000 |
|
|
$ |
63,064 |
|
|
$ |
73,064 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income for the year
ended December 31, 2004 |
|
|
|
|
|
|
|
|
|
|
127,695 |
|
|
|
127,695 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2004 |
|
|
1,000 |
|
|
$ |
10,000 |
|
|
$ |
190,759 |
|
|
$ |
200,759 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholder distribution |
|
|
|
|
|
|
|
|
|
|
(187,068 |
) |
|
|
(187,068 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income for the year
ended December 31, 2005 |
|
|
|
|
|
|
|
|
|
|
375,574 |
|
|
|
375,574 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2005 |
|
|
1,000 |
|
|
$ |
10,000 |
|
|
$ |
379,265 |
|
|
$ |
389,265 |
|
|
F-76
Parke P.A.N.D.A. Corporation
Statements of Cash Flows
|
|
|
|
|
|
|
|
|
|
|
Year ended |
|
|
Year ended |
|
|
|
December 31, |
|
|
December 31, |
|
|
|
2005 |
|
|
2004 |
|
|
Cash Flows From Operating Activities |
|
|
|
|
|
|
|
|
Net income |
|
$ |
375,574 |
|
|
$ |
127,695 |
|
Adjustments to reconcile net income to net cash
provided by operating activities: |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
20,194 |
|
|
|
12,821 |
|
Changes in assets and liabilities |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
3,366 |
|
|
|
(62,751 |
) |
Inventories |
|
|
(101,484 |
) |
|
|
(32,472 |
) |
Other current assets |
|
|
614 |
|
|
|
24,509 |
|
Accounts payable |
|
|
124,350 |
|
|
|
55,678 |
|
Accrued expenses |
|
|
26,511 |
|
|
|
8,146 |
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities |
|
|
449,125 |
|
|
|
133,626 |
|
|
|
|
|
|
|
|
|
|
|
Cash Flows Used in Investing Activities |
|
|
|
|
|
|
|
|
Purchase of property and equipment |
|
|
(34,425 |
) |
|
|
(8,746 |
) |
|
|
|
|
|
|
|
|
|
|
Cash Flows Used in Financing Activities |
|
|
|
|
|
|
|
|
Payments on line of credit |
|
|
(38,646 |
) |
|
|
(91,370 |
) |
Payments on long-term debt |
|
|
(9,821 |
) |
|
|
(9,512 |
) |
Shareholder advance |
|
|
|
|
|
|
1,830 |
|
Payments on stockholder loan |
|
|
(32,332 |
) |
|
|
|
|
Distribution to stockholder |
|
|
(187,068 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities |
|
|
(267,867 |
) |
|
|
(99,052 |
) |
|
|
|
|
|
|
|
|
|
Net Increase in Cash |
|
|
146,833 |
|
|
|
25,828 |
|
|
|
|
|
|
|
|
|
|
Cash, at beginning of year |
|
|
5,579 |
|
|
|
(20,249 |
) |
|
|
|
|
|
|
|
|
|
|
Cash, at end of year |
|
$ |
152,412 |
|
|
$ |
5,579 |
|
|
|
|
|
|
|
|
|
|
|
Supplemental Disclosure of Cash Flow Information |
|
|
|
|
|
|
|
|
Interest paid during the year |
|
$ |
8,300 |
|
|
$ |
8,940 |
|
F-77
Parke P.A.N.D.A. Corporation
Notes to Financial Statements
Note 1 Description of Business
Parke P.A.N.D.A. Corporation (the Company), a California S corporation headquartered in
Glendora, California, is an energy services provider specializing in the design, engineering and
installation of energy efficient lighting upgrades for commercial and industrial users. The
Companys principal customers are located in California.
Note 2 Summary of Significant Accounting Policies
Inventories
Inventories are stated at the lower of cost or market. Cost is determined utilizing the
first-in, first-out (FIFO) method.
Property and equipment
Property and equipment are recorded at cost. Depreciation is calculated on the straight-line
basis in amounts sufficient to amortize the cost of the assets over their estimated useful lives
(generally three to five years) beginning when the asset is placed into service. Expenditures for
maintenance and repairs are charged to operations as incurred.
Impairment of Long-Lived Assets
The Company records impairment losses on long-lived assets used in operations when events and
circumstances indicate that the assets might be impaired and the undiscounted cash flows estimated
to be generated by those assets are less than the carrying amount of those items. Our cash flow
estimates are based on historical results adjusted to reflect our best estimate of future market
and operating conditions. The net carrying value of assets not recoverable is reduced to fair
value. Our estimates of fair value represent our best estimate based on industry trends and
reference to market rates and transactions.
Revenue Recognition
The Companys contracts are of relatively short duration; therefore revenue is recognized on
the completed contract basis. Based on the completed-contract method, revenue is recognized when
delivery of the product has occurred and installation is complete, title has passed to the customer
and collectability is reasonably assured.
Allowance for Doubtful Accounts
We maintain an allowance for doubtful accounts for estimated losses resulting from the
inability of our customers to make required payments. The allowance is largely based upon specific
knowledge of customers from whom collection is determined to be doubtful and our historical
collection experience with such customers. If the financial condition of our customers or the
economic environment in which they operate were to deteriorate, resulting in an inability to make
payments, or if our estimates of certain customers ability to pay are incorrect, additional
allowances may be required. At December 31, 2005 and 2004, the Company had a $10,000 allowance for
doubtful accounts.
Income Taxes
The Company has elected S corporation status and, accordingly, is not a tax-paying entity
for federal income tax purposes. Its stockholder has consented to include the losses or income of
the Company on his individual federal tax returns. However, the Company is a tax-paying entity for
California Franchise tax purposes.
F-78
Parke P.A.N.D.A. Corporation
Notes to Financial Statements
Concentration of Risk
Certain financial instruments potentially subject the Company to concentrations of credit
risk. These financial instruments consist primarily of cash and accounts receivable. The Company
places its cash with a high-credit quality financial institution to limit its credit exposure.
During 2005 one customer accounted for approximately 20% of the Companys revenue. There were no
outstanding accounts receivable from this customer at December 31, 2005. No customer accounted for
more than 10% of the Companys revenue during 2004. The Company maintains ongoing credit
evaluations of its customers.
The Company has relationships with multiple suppliers and seeks competing bids for its
material purchases. During 2005, the Company purchased approximately 39% and 38% of its materials
from two suppliers of which approximately $27,000 and $86,000, respectively, was included in
accounts payable at December 31, 2005. During 2004, the Company purchased approximately 73% of its
materials from four suppliers, of which approximately $73,000 was included in accounts payable at
December 31, 2004.
Use of Estimates
The preparation of financial statements in conformity with generally accepted accounting
principles requires management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Advertising, Marketing and Promotional Costs
Expenditures on advertising, marketing and promotions are charged to operations in the period
incurred and totaled approximately $11,000 and $18,000 for the periods ended December 31, 2005 and
2004, respectively.
Note 3 Property and Equipment
Major classes of property and equipment consist of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2005 |
|
|
2004 |
|
|
Furniture |
|
$ |
530 |
|
|
$ |
530 |
|
Office equipment |
|
|
25,850 |
|
|
|
10,915 |
|
Transportation equipment |
|
|
69,886 |
|
|
|
50,396 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
96,266 |
|
|
|
61,841 |
|
Less accumulated depreciation |
|
|
41,967 |
|
|
|
22,230 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
54,299 |
|
|
$ |
39,611 |
|
|
Note 4 Line of Credit
The Company has a line of credit with a bank that provides for borrowings of the lesser of (1)
$400,000, or 80% of the aggregate of eligible accounts receivable. The line of credit accrues
interest on outstanding balances at the lenders prime rate (7.25% as of December 31, 2005) plus
1.09% and matures on July 25, 2006. Borrowings under this line of credit are secured by
substantially all of the Companys assets and are guaranteed by the Companys stockholder.
F-79
Parke P.A.N.D.A. Corporation
Notes to Financial Statements
There were borrowings of $0 and $38,646 under the line of credit at December 31, 2005 and 2004,
respectively.
Note 5 Long-Term Debt
Long-term debt at December 31, 2005 and 2004 consisted of the following:
|
|
|
|
|
|
|
|
|
December 31, |
|
2005 |
|
|
2004 |
|
|
Vehicle note due in forty-eight (48) monthly
installments of $405, including principal and
interest at 6.9% per annum, through January 2006 |
|
$ |
403 |
|
|
$ |
5,064 |
|
|
|
|
|
|
|
|
|
|
Vehicle note due in sixty (60) monthly installments
of $430 through July 2008 |
|
|
13,331 |
|
|
|
18,491 |
|
|
|
|
|
|
|
|
|
|
|
Total debt |
|
|
13,734 |
|
|
|
23,555 |
|
|
|
|
|
|
|
|
|
|
Less current portion |
|
|
5,564 |
|
|
|
9,821 |
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt |
|
$ |
8,170 |
|
|
$ |
13,734 |
|
|
The aggregate amounts of long-term debt maturing in each of the next five years as of
December 31, 2005, are as follows:
|
|
|
|
|
2006 |
|
$ |
5,564 |
|
2007 |
|
|
5,160 |
|
2008 |
|
|
3,010 |
|
|
|
|
|
|
|
|
|
$ |
13,734 |
|
|
Note 6 Lease Commitments
The Company leases office space in Glendora, California from an entity owned by the Companys
stockholder which expires on January 1, 2007. Total rent expense for this office space was $26,400
during 2005.
Future minimum rentals payments under this lease as of December 31, 2005 are as follows:
|
|
|
|
|
Year ending December 31, |
|
Total |
|
|
2006 |
|
$ |
42,000 |
|
|
|
|
|
|
|
Total |
|
$ |
42,000 |
|
|
F-80
Parke P.A.N.D.A. Corporation
Notes to Financial Statements
Note 7 Related Party Transactions
As discuss in Note 6, the Company leases office space in a building owned by the Companys
stockholder.
During the year ended December 31, 2005, the Company recognized revenue of $39,350 for the
sale of products and services to a company which is majority owned by the Companys stockholder.
There were no accounts receivable from this customer as of December 31, 2005.
Note 8 Subsequent Event
On June 30, 2006, all of the capital stock of the Company was acquired by Lime Energy Co.
(formerly known as Electric City Corp.) for $2.72 million in cash and Lime Energy Co. stock valued
at $5 million.
F-81
PARKE P.A.N.D.A. CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
|
|
|
|
|
|
|
June 30 |
|
|
|
2006 |
|
|
|
(unaudited) |
|
|
Assets |
|
|
|
|
|
|
|
|
|
Current Assets |
|
|
|
|
Cash and cash equivalents |
|
$ |
1,710 |
|
Accounts receivable, net |
|
|
711,598 |
|
Inventories |
|
|
142,789 |
|
Prepaid expenses and other |
|
|
7,088 |
|
|
|
Total Current Assets |
|
|
863,185 |
|
|
|
|
|
|
Net Property and Equipment |
|
|
79,917 |
|
|
|
|
|
|
Other Assets |
|
|
115 |
|
|
|
|
|
|
|
|
|
$ |
943,217 |
|
|
See accompanying notes to condensed consolidated financial statements
F-82
PARKE P.A.N.D.A. CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
|
|
|
|
|
|
|
June 30, |
|
|
|
2006 |
|
|
|
(unaudited) |
|
|
Liabilities and Stockholders Equity |
|
|
|
|
|
|
|
|
|
Current Liabilities |
|
|
|
|
Line of credit |
|
$ |
400,000 |
|
Current maturities of long-term debt |
|
|
10,172 |
|
Accounts payable |
|
|
338,536 |
|
Accrued expenses |
|
|
73,575 |
|
Customer advances |
|
|
367 |
|
|
Total Current Liabilities |
|
|
822,650 |
|
|
|
|
|
|
Long-Term Debt, less current maturities |
|
|
35,591 |
|
|
|
|
|
|
|
Total Liabilities |
|
|
858,241 |
|
|
|
|
|
|
|
Stockholders Equity |
|
|
|
|
Common stock, no par value; 10,000 shares authorized; 10,000
issued and outstanding |
|
|
10,000 |
|
Accumulated earnings |
|
|
74,976 |
|
|
Total Stockholders Equity |
|
|
84,976 |
|
|
|
|
|
|
|
|
|
$ |
943,217 |
|
|
See accompanying notes to condensed consolidated financial statements
F-83
PARKE P.A.N.D.A. CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
|
|
|
|
|
|
|
|
|
Six Months ended, June 30 |
|
2006 |
|
|
2005 |
|
|
Revenue |
|
$ |
1,883,830 |
|
|
$ |
1,747,569 |
|
|
|
|
|
|
|
|
|
|
Expense |
|
|
|
|
|
|
|
|
Cost of Sales |
|
|
1,169,365 |
|
|
|
1,118,120 |
|
Selling, general and administrative |
|
|
520,263 |
|
|
|
359,533 |
|
|
|
|
|
1,689,628 |
|
|
|
1,477,653 |
|
|
|
|
|
|
|
|
|
|
|
Operating income |
|
|
194,202 |
|
|
|
269,916 |
|
|
|
|
|
|
|
|
|
|
Other Expense |
|
|
|
|
|
|
|
|
Interest expense |
|
|
2,491 |
|
|
|
2,483 |
|
|
|
|
|
|
|
|
|
|
|
Net Income |
|
$ |
191,711 |
|
|
$ |
267,433 |
|
|
See accompanying notes to condensed consolidated financial statements
F-84
PARKE P.A.N.D.A. CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
|
|
|
|
|
|
|
|
|
Six Months ended June 30 |
|
2006 |
|
|
2005 |
|
|
Cash Flow from Operating Activities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
191,711 |
|
|
$ |
267,433 |
|
|
|
|
|
|
|
|
|
|
Adjustments to reconcile net income to net cash used in
operating activities |
|
|
|
|
|
|
|
|
Depreciation and amortization |
|
|
11,984 |
|
|
|
8,102 |
|
Changes in assets and liabilities |
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(382,282 |
) |
|
|
(666,904 |
) |
Inventories |
|
|
16,007 |
|
|
|
9,096 |
|
Costs and estimated profits in excess of billings on
uncompleted contracts |
|
|
|
|
|
|
(81,380 |
) |
Prepaid expenses and other current assets |
|
|
(7,088 |
) |
|
|
(186 |
) |
Accounts payable |
|
|
103,181 |
|
|
|
259,067 |
|
Accrued expenses |
|
|
16,877 |
|
|
|
57,251 |
|
Customer advances |
|
|
367 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in operating activities |
|
|
(49,243 |
) |
|
|
(147,521 |
) |
|
|
|
|
|
|
|
|
|
|
Cash Flows Used In Investing Activities |
|
|
|
|
|
|
|
|
Purchase of property and equipment |
|
|
(2,476 |
) |
|
|
(32,115 |
) |
|
|
|
|
|
|
|
|
|
Cash Flows (Used in) Provided by Financing Activities |
|
|
|
|
|
|
|
|
Borrowings on line of credit, net of repayments |
|
|
400,000 |
|
|
|
200,989 |
|
Payment on loans from stockholders |
|
|
|
|
|
|
(15,000 |
) |
Payment on long-term debt |
|
|
(2,983 |
) |
|
|
(4,871 |
) |
Stockholder distribution |
|
|
(496,000 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by financing activities |
|
|
(98,983 |
) |
|
|
181,118 |
|
|
|
|
|
|
|
|
|
|
|
Net (Decrease) Increase in Cash and Cash Equivalents |
|
|
(150,702 |
) |
|
|
1,482 |
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at beginning of period |
|
|
152,412 |
|
|
|
5,579 |
|
|
|
|
|
|
|
|
|
|
|
Cash and Cash Equivalents, at end of period |
|
$ |
1,710 |
|
|
$ |
7,061 |
|
|
|
|
|
|
|
|
|
|
|
Supplemental Disclosure of Cash Flow Information |
|
|
|
|
|
|
|
|
Cash paid during the periods for interest |
|
$ |
1,637 |
|
|
$ |
2,483 |
|
Non-cash investing activity: |
|
|
|
|
|
|
|
|
Financed capital purchase |
|
$ |
35,012 |
|
|
$ |
|
|
See accompanying notes to condensed consolidated financial statements
F-85
Parke P.A.N.D.A. Corporation
Notes to Financial Statements
Note 1 Basis of Presentation
The accompanying unaudited financial statements have been prepared in accordance with generally
accepted accounting principles for interim financial information. Accordingly, they do not include
all of the information and footnotes required by accounting principles generally accepted in the
United States for complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair presentation have been
included. Operating results for the six months ended June 30, 2006 and 2005 are not necessarily
indicative of the results that may be expected for the fiscal year ended December 31, 2006. For
further information, refer to the Companys annual December 31, 2005 and 2004 financial statements
and footnotes included as exhibit 99.1 in this Form 8-K/A.
Note 2 Inventories
Inventories consisted of the following:
|
|
|
|
|
|
|
June 30, |
|
|
|
2006 |
|
Raw materials |
|
$ |
142,789 |
|
|
|
|
|
|
Work in process |
|
|
|
|
|
|
|
|
|
Finished goods |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
142,789 |
|
|
|
|
|
Note 3 Customer Concentration
One customer accounted for 15% of Companys revenue during the six month period ended June 30,
2006. Accounts receivable from this customer at June 30, 2006 totaled approximately $245,000. Two
customers accounted for 21% and 11% of the Companys revenue during the six month period ended June
30, 2005, respectively. Accounts receivable from these customers at June 30, 2005 were
approximately $259,000 and $50,000, respectively.
Note 4 Line of Credit
The Company has a line of credit with a bank that provides for borrowings of the lesser of
$400,000, or 80% of the aggregate of eligible accounts receivable. The line of credit accrues
interest on outstanding balances at the lenders prime rate (8.25% as of June 30, 2006) plus 1.09%
and matures on July 25, 2006. Borrowings under this line of credit are secured by substantially
all of the Companys assets and are guaranteed by the Companys stockholder. There were borrowings
of $400,000 and $239,635 under the line of credit at June 30, 2006 and 2005, respectively.
F-86
Note 5 Related Party Transactions
The Company leases office space in Glendora, California from an entity owned by the Companys
stockholder. The lease expires on January 1, 2007. Total rent expense for this office space was
$20,500 and $13,200 for the six months ended June 30, 2006 and 2005, respectively.
During the six months ended June 30, 2006, the Company recognized revenue of $30,895 for the sale
of products and services to a company which is majority owned by the Companys stockholder. There
were no accounts receivable from this customer as of June 30, 2006.
Note 6 Subsequent Event
Pursuant to an Agreement and Plan of Merger (the Merger Agreement) dated as of June 30, 2006, by
and among Lime Energy Co. (formerly known as Electric City Corp.), (Lime Energy) MPG Acquisition
Corporation, a wholly-owned subsidiary of Lime Energy (Merger Subsidiary), and Parke P.A.N.D.A.
Corporation (Parke), Lime Energy acquired Parke pursuant to the merger of Parke with and into
Merger Subsidiary, with Merger Subsidiary continuing as the surviving corporation under the name
Parke Industries, LLC.
The merger consideration consisted of $2,720,000 in cash and 5,000,000 shares of Lime Energy common
stock. As a result of the merger, Merger Subsidiary became responsible for the liabilities of
Parke. The acquisition will be recorded using the purchase method of accounting.
F-87
|
UNAUDITED PRO FORMA
CONDENSED COMBINED FINANCIAL STATEMENTS
The following unaudited pro forma condensed combined financial statements with respect to Lime
Energy Co. (formerly known as Electric City Corp.) are based on our historical consolidated
financial statements. Set forth below are the following unaudited pro forma condensed combined
financial statements:
|
|
|
The unaudited pro forma condensed combined statement of operations for the year ended
December 31, 2006, assuming the business combination between Lime Energy Co., and Parke
P.A.N.D.A. Corporation occurred as of January 1, 2006 and combining the December 31, 2006
historical statement of operations for Lime Energy Co., and the interim historical
statement of operations for Parke P.A.N.D.A. Corporation for the six month period ended
June 30, 2006. |
The unaudited pro forma condensed combined financial statements are presented for informational
purposes only, are based on certain assumptions that we believe are reasonable and do not purport
to represent our financial condition or our results of operations had the business combination
occurred on or as of the dates noted above or to project the results for any future date or period.
In the opinion of management, all adjustments have been made that are necessary to present fairly
the unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial statements do not reflect any benefits from
potential cost savings or revenue synergies resulting from this business combination.
The merger will be treated as a purchase business combination for accounting purposes, and Parke
P.A.N.D.A. Corporations assets acquired and liabilities assumed will be recorded at their fair
value.
In connection with the business combination, Parke merged with and into the wholly owned subsidiary
of Lime Energy (Parke Acquisition LLC). In connection with the merger, all membership interests
of Parke Acquisition as of the merger date shall remain membership interests of the surviving
corporation. In total Parkes stockholder received $2,720,000 in cash and 5,000,000 shares of Lime
Energy Co. common stock.
|
F-88
|
UNAUDITED PRO FORMA
CONDENSED COMBINED STATEMENT OF OPERATIONS
FOR THE TWELVE MONTH PERIOD ENDED DECEMBER 31, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Historical |
|
|
|
|
|
|
|
|
|
|
Historical |
|
|
Parke |
|
|
|
|
|
|
Pro Forma |
|
|
|
Lime Energy |
|
|
P.A.N.D.A. |
|
|
Pro Forma |
|
|
Lime Energy |
|
|
|
Co. |
|
|
Corporation |
|
|
Adjustments |
|
|
Co. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
8,143,624 |
|
|
$ |
1,883,830 |
|
|
$ |
|
|
|
$ |
10,027,454 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expenses |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of sales |
|
|
6,931,294 |
|
|
|
1,169,365 |
|
|
|
|
|
|
|
8,100,659 |
|
Selling, general and administrative |
|
|
12,165,700 |
|
|
|
520,263 |
|
|
|
|
|
|
|
12,685,963 |
|
Amortization of intangibles |
|
|
1,210,006 |
|
|
|
|
|
|
|
84,000 |
a |
|
|
1,294,006 |
|
Impairment loss |
|
|
1,183,525 |
|
|
|
|
|
|
|
|
|
|
|
1,183,525 |
|
|
|
|
|
21,490,525 |
|
|
|
1,689,628 |
|
|
|
84,000 |
|
|
|
23,264,153 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
|
|
(13,346,901 |
) |
|
|
194,202 |
|
|
|
(84,000 |
) |
|
|
(13,236,699 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Income (Expense) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
194,182 |
|
|
|
|
|
|
|
|
|
|
|
194,182 |
|
Interest expense |
|
|
(3,273,370 |
) |
|
|
(2,491 |
) |
|
|
|
|
|
|
(3,275,861 |
) |
|
Total other expense |
|
|
(3,079,188 |
) |
|
|
(2,491 |
) |
|
|
|
|
|
|
(3,081,679 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations |
|
|
(16,426,089 |
) |
|
|
191,711 |
|
|
|
(84,000 |
) |
|
|
(3,081,679 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from discontinued operations |
|
|
(21,425 |
) |
|
|
|
|
|
|
|
|
|
|
(21,425 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Income (Loss) |
|
|
(16,447,514 |
) |
|
|
191,711 |
|
|
|
(84,000 |
) |
|
|
(16,339,803 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plus Preferred Stock Dividends |
|
|
(24,347,725 |
) |
|
|
|
|
|
|
|
|
|
|
(24,347,725 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Loss Available to Common Shareholder |
|
$ |
(40,795,239 |
) |
|
$ |
191,711 |
|
|
$ |
(84,000 |
) |
|
$ |
(40,687,528 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted net loss per
common share from: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations |
|
|
(1.52 |
) |
|
|
|
|
|
|
|
|
|
|
(1.17 |
) |
Discontinued operations |
|
|
(0.00 |
) |
|
|
|
|
|
|
|
|
|
|
(0.00 |
) |
Basic and Diluted Net Loss Per Common
Share |
|
$ |
(1.52 |
) |
|
|
|
|
|
|
|
|
|
$ |
(1.17 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average Common Shares
Outstanding |
|
|
26,908,608 |
|
|
|
|
|
|
|
5,000,000 |
b |
|
|
34,628,608 |
|
|
|
|
|
|
|
|
|
|
|
|
2,720,000 |
c |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-89
|
NOTES TO UNAUDITED PRO FORMA
CONDENSED COMBINED STATEMENTS OF OPERATIONS
(a) To record twelve months of amortization expense related to the Parkes identifiable
intangible assets assuming the business combination occurred as of January 1, 2006.
(b) Represents the shares of Lime Energy common stock issued as consideration to Parkes
stockholder.
(c) Represents that portion of the shares issued as part of the Private Placement to generate
the cash used to acquire Parke.
|
F-90
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses Of Issuance And Distribution
The following table sets forth the costs and expenses payable by the registrant in connection
with the sale of the common stock being registered. All of the amounts shown are estimates except
the Securities and Exchange Commission (the Commission) registration fee.
|
|
|
|
|
SEC Registration Fee |
|
$ |
4,579 |
|
Legal Fees and Expenses |
|
|
60,000 |
|
Accounting Fees and Expenses |
|
|
70,000 |
|
Costs of Printing |
|
|
0 |
|
Miscellaneous Expenses |
|
|
40,000 |
|
|
|
|
|
Total |
|
$ |
174,579 |
|
|
|
|
|
We will pay all of the expenses incident to the registration, offering and sale of the shares
of our common stock offered by this registration statement other than commissions, fees and
discounts of underwriters, brokers, dealers and agents. Those commissions, fees and discounts, if
any, will be borne by the selling stockholders.
Item 14. Indemnification Of Directors And Officers
Subsection (a) of Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees)
actually and reasonably incurred by him or her in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all of the circumstances of the
II-1
case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has
been successful in the defense of any action, suit or proceeding referred to in subsection (a) and
(b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him or her in connection
therewith; that the indemnification provided by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the scope of indemnification
extends to directors, officers, employees, or agents of a constituent corporation absorbed in a
consolidation or merger and persons serving in that capacity at the request of the constituent
corporation for another. Section 145 also empowers a corporation to purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability asserted against him or
her or incurred by him or her in any such capacity or arising out of his or her status as such
whether or not the corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article VIII of Lime Energys Amended and Restated By-laws (the By-laws) specifies that Lime
Energy shall indemnify its directors, officers, employees and agents to the full extent that such
right of indemnity is permitted by law. This provision of the By-laws is deemed to be a contract
between Lime Energy and each director and officer who serves in such capacity at any time while
such provision and the relevant provisions of the Delaware General Corporation Law are in effect,
and any repeal or modification thereof shall not offset any right to indemnification in respect of
action, suit or proceeding theretofor or thereafter brought or threatened based in whole or in part
upon any such state of facts. The amendment or repeal of such provision of the By-laws may be
effected by the affirmative vote of the holders of a majority in interest of all outstanding
capital stock of Lime Energy entitled to vote, in person or by proxy, at any annual or special
meeting in which a quorum is present. The By-laws may also be amended, adopted or repealed in
whole or in part by actions of the majority of the whole board of directors.
Section 102(b)(7) of the Delaware General Corporation Law enables a corporation in its
certificate of incorporation to limit the personal liability of members of its board of directors
for violation of a directors fiduciary duty of care. This section does not, however, limit the
liability of a director for breaching his or her duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating a law, authorizing unlawful payments of
dividends or unlawful redemptions or stock purchases as contemplated by Section 174 of Delaware
General Corporation Law, or from any transaction in which the director derived an improper personal
benefit. This section also will have no effect on claims arising under the federal securities laws.
Lime Energys Certificate of Incorporation, as amended, limits the liability of its directors
as authorized by Section 102(b)(7). To amend such provisions the Company would require the
affirmative vote of the holders of a majority of the voting power of all outstanding shares of the
capital stock of Lime Energy.
Lime Energy has obtained liability insurance for the benefit of its directors and officers
which provides coverage for losses of directors and officers for liabilities arising out of claims
against such persons acting as directors or officers of Lime Energy (or any subsidiary thereof) due
to any breach of duty, neglect, error, misstatement, misleading statement, omission or act done by
such directors and officers, except as prohibited by law.
II-2
Item 15. Recent Sales Of Unregistered Securities
Set forth below is information regarding shares of common stock and preferred stock issued,
and options granted, by the Registrant within the past three years. Also included is the
consideration, if any, received by the Registrant for such shares, and upon exercise of options and
warrants and information relating to the section of the Securities Act, or rule of the SEC under
which exemption from registration was claimed.
2004 Transactions
a) |
|
During fiscal 2004, holders of our Series A Convertible Preferred Stock converted 145,000
shares of Series A into 96,667 shares of common stock. All shares of our Series A Convertible
Preferred Stock were originally issued in private placements to accredited investors pursuant
to Regulation D which took place in 2001, or were subsequently issued as dividends on
outstanding shares of Series A Preferred. |
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b) |
|
Also during 2004, holders of our Series E Convertible Preferred Stock converted 5,067 shares
of Series E Convertible Preferred Stock into 33,780 shares of common stock. All shares of our
Series E Convertible Preferred Stock were originally issued in a private transactions
described under d) below not involving a public offering, or were subsequently issued as
dividends on outstanding shares of Series E Preferred. |
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c) |
|
On March 19, 2004, we entered into a securities purchase agreement with a group of four
mutual funds managed by Security Benefit Group, Inc. whereby we issued to such purchasers, in
exchange for $11,000,000 in gross proceeds, a package of securities that included 333,333
shares of our common stock and 5 year warrants to purchase 116,667 additional shares of common
stock at $36.30 per share. We used $7,000,006 of the proceeds to facility the Redemption and
Exchange (described below). The balance of the funds were used to pay transaction costs and
for general corporate purposes. |
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|
|
On March 22, 2004, we entered into a Redemption and Exchange Agreement with the holders of our
outstanding Series A Convertible Preferred Stock, Series C Convertible Preferred Stock and
Series D Convertible Preferred Stock (collectively, the Old Preferred Stock) under which we
redeemed 538,462 shares of the outstanding Old Preferred Stock which were convertible into
358,975 shares of common stock, at a redemption price equivalent to $19.50 per common share for
a total cost of $7,000,006, and exchanged 210,451 shares of our newly authorized Series E
Convertible Preferred Stock (the Series E Preferred) for the remaining 2,104,509 outstanding
shares of the Old Preferred Stock (the Exchange) on a 1 for 10 basis (one share of Series E
Preferred exchanged for 10 shares of Old Preferred Stock). All of the Old Preferred Stock has
been cancelled. As part of the Exchange, all outstanding warrants to purchase shares of Series
D Convertible Preferred Stock were exchanged for similar warrants to purchase shares of Series
E Preferred and the expiration date was changed from June 30, 2004 to October 31, 2004 (and
subsequently extended to December 31, 2004). Such Series E warrants issued were exercisable
for an aggregate of 3,750 shares of Series E Preferred at a price of $100 per share. They
replaced warrants exercisable for 37,500 shares of Series D Preferred at an exercise price of
$10 per share. |
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Except as with respect to dividends, the Series E Preferred had substantially the same rights
as the shares of Old Preferred Stock that it replaced, including: |
II-3
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special approval rights with respect to certain actions by us, including any
issuance of shares of capital stock by us that would have the right to receive
dividends or the right to participate in any distribution upon liquidation which was
senior to or equal to the rights of the Series E Preferred (other than issuances to
pay dividends on the preferred and under certain other limited exceptions such as
conversion of outstanding convertible securities) and any acquisition, sale, merger,
joint venture, consolidation or reorganization involving us or any of our
subsidiaries; |
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a conversion price of $15.00 per share; |
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the right to elect up to four directors; |
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the right to vote with the holders of common stock on an as converted basis on
all matters on which holders of our common stock are entitled to vote, except with
respect to the election of directors or as otherwise provided by law; |
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a right of first offer on the sale of equity by us in a private transaction; and |
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anti-dilution protection that would adjust the conversion price in the event that
we issued equity at a price which was less than the conversion price . |
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The Series E Preferred accrued dividends at a rate of 6% (versus 10% for the Old Preferred) per
annum, which at our option could be paid by issuing more shares of Series E Preferred. |
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|
Morgan Keegan & Company, Inc. acted as placement agent for us with respect to the transaction
and was paid a placement agent fee of $660,000. The Stockpage.com was also paid a finders fee
of $55,000 related to the transaction. Other issuance costs related to the transaction totaled
$195,393. |
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d) |
|
During fiscal 2004, we received proceeds of $485,000 in connection with the exercise of
12,333 common stock warrants and 3,000 Series E Convertible Preferred warrants. The proceeds
from the exercise of these warrants was used for general corporate purposes. |
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e) |
|
During fiscal 2004, we issued warrants to purchase 8,000 shares of our common stock at prices
between $15.00 and $23.25 per share to consultants for services received. The warrants were
valued at $42,600 using a modified Black-Sholes option pricing model utilizing the following
assumptions: risk free rate of 1.607% to 2.772%, expected volatility of 42.5 to 53.6%,
expected dividend of $0 and expected life of 2 to 3 years. The value of the warrants was
charged to operations during the period. |
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f) |
|
During fiscal 2004, Laurus Master Fund Ltd. converted $270,864 of principal and $4,736 of
accrued interest on our outstanding $1,000,000 Convertible Term Note (issued in September,
2003) into 8,667 shares of our common stock. |
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g) |
|
During fiscal 2004, we satisfied the accrued dividend on our preferred stock of $1,636,780
though the issuance of 16,368 shares of our Series E Preferred stock. |
2005 Transactions
h) |
|
During 2005, two holders of our Series E Convertible Preferred Stock converted 2,167 shares
of Series E Convertible Preferred Stock into 14,447 shares of common stock. |
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i) |
|
During 2005, we issued the following warrants: |
II-4
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On February 10, 2005, Delano Group Securities, LLC received a five year warrant to
purchase 2,000 shares at $15.45 per share, pursuant to an agreement to provide
investment banking services. Delano Group Securities, LLC, is a company owned by Mr.
David Asplund, one of our directors and effective January 23, 2006 our CEO. The
warrant was valued at $13,200 using a modified Black-Sholes option pricing model
utilizing the following assumptions: risk free rate of 2.53%, expected volatility of
45.3%, expected dividend of $0 and expected life of 5 years. The value of the warrant
was charged to operations during the period. |
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M&A Railroad and Electric Supply, LLC received a three year warrant to purchase
6,667 options at $16.95 per share to as part of a legal settlement. This warrant was
valued at $35,000 using a modified Black-Sholes option pricing model utilizing the
following assumptions: risk free rate of 2.767%, expected volatility of 45.0%,
expected dividend of $0 and expected life of 3 years. Of the total warrant value
$33,000 was charged to operations during the forth quarter of 2004 and $2,000 was
charged to operations during the first quarter of 2005. |
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On April 28, 2005, Laurus Master Fund, Ltd. received a warrant to purchase 26,667
shares of our common stock in exchange for our consent to our entering into the PIPE
Transaction described under j) below and acquiring MPG, as well as waiving our right
to adjust the conversion price on our convertible term note and convertible revolving
note. The warrant has an exercise price of $15.00 per share and a term of five years.
The warrant was valued at $160,000 using a modified Black-Sholes option pricing model
utilizing the following assumptions: risk free rate of 2.941%, expected volatility of
43.7%, expected dividend of $0 and expected life of 5 years. The value of the warrant
was charged to interest expense during 2005. |
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Various consultants received warrants to purchase 27,333 shares of our common stock
with exercise prices between $15.00 and $15.45 per share and terms of three to ten
years. The warrants were valued collectively at $144,600 using a modified
Black-Sholes option pricing model utilizing the following assumptions (depending on
the warrant being valued): risk free rate of 2.366% to 3.029%, expected volatility of
40.7% to 46.5%, an expected dividend of $0 and an expected life of 3 to 10 years. The
values of the warrants were charged to operations during the 2005. |
j) |
|
On April 28, 2005, we issued to five (5) institutional investors, for an aggregate gross
purchase price of $5,625,000, 416,667 shares of our common stock and 42 month warrants to
purchase 208,333 additional shares of common stock at $15.75 per share (collectively the PIPE
Transaction or the PIPE). Warrants to purchase 140,000 shares of common stock were
immediately exercisable and the remaining warrants became exercisable six months after closing
on October 28, 2005. Net proceeds from the transaction were approximately $5,413,000, of
which approximately $1,644,000 was used to fund the acquisition of Maximum Performance Group,
Inc. The balance were used to pay transaction costs and for general corporate purposes. |
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Delano Group Securities LLC and Mr. David Valentine acted as advisors on the PIPE Transaction.
We paid Delano Group Securities LLC $16,250 and 3,333 shares of common stock and Mr. Valentine
3,333 shares of common stock for their services. Mr. Asplund and Mr. Valentine both were
serving as directors of Lime Energy and effective January 23, 2006, Mr. Asplund became our CEO. |
II-5
k) |
|
On May 3, 2005, we issued 166,149 shares of common stock in connection with the acquisition
of Maximum Performance Group, Inc. (MPG). In addition, 166,149 shares of common stock are
being held in escrow and will be issued in the event MPG meets specific performance criteria
during the two year period following the acquisition. No escrow shares have been released as
of February 2, 2007. |
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Delano Group Securities LLC acted as an advisor on the acquisition of MPG and was paid $82,176
and 8,366 shares of common stock for our services. These shares were valued at $15.00 per
share, which was the closing market price of our common stock on April 28th. In addition, we
will issue up to 8,366 additional shares of common stock to Delano as the MPG shares held in
escrow are released. Delano Group Securities LLC is owned by Mr. David Asplund, one of Lime
Energys directors and effective January 23, 2006, our CEO. |
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l) |
|
On November 22, 2005, we entered into a securities purchase agreement with Laurus Master
Fund, Ltd. (Laurus) whereby we issued to Laurus a $5 million secured convertible term note
and a warrant to purchase 133,333 shares of our common stock at $17.40 per share anytime prior
to November 22, 2012. The warrants were valued at $920,000 using a modified Black-Sholes
option pricing model utilizing the following assumptions: risk free rate of 4.034%, expected
volatility of 67.4%, expected dividend of $0 and expected life of 7 years. The value of the
warrants was recorded as a discount to the term loan and will be amortized over the term of
the underlying debt utilizing the effective interest method. |
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This term loan was retired through a cash payment on June 29, 2006 before the shares issuable
upon conversion of the term loan were registered for resale. No portion of the term loan was
converted to common stock while the note was outstanding. |
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m) |
|
During the year ended December 31, 2005, our Board of Directors declared dividends payable on
our Series E Convertible Preferred Stock of $1,366,900. The dividends were paid with 13,699
additional shares of Series E Convertible Preferred Stock. |
2006 Transactions
n) |
|
During the first three months of 2006, two holders of our Series E Convertible Preferred
Stock converted a total of 7,130 shares of Series E Convertible Preferred Stock into 47,533
shares of common stock. |
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o) |
|
Effective March 31, 2006, we received 14,194 shares of our common stock as part of the sale
of our Great Lakes Controlled Energy Corporation subsidiary to Messrs. Eugene Borucki and
Denis Enberg. These shares have been returned to the status of authorized, unissued shares of
common stock. |
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p) |
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On June 29, 2006, we entered into a Securities Purchase Agreement and issued to 17 investors,
including 10 existing holders of our Series E Convertible Stock, for an aggregate purchase
price of $17,875,000, 17,875,000 shares of our common stock (the PIPE Transaction). We used
$2.72 million of the proceeds to fund the cash consideration for the acquisition of Parke
P.A.N.D.A. Corporation; approximately $5.6 million to prepay two convertible secured term
loans and related prepayment penalties and accrued interest owed to Laurus Master Fund Ltd.;
$400,000 to pay off Parkes line of credit and $90,079 for transaction related costs. The
balance of the gross proceeds of approximately $9 million has been and will be used for
working capital and other general corporate purposes, except that |
II-6
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$1,250,000 was used to pay the cash portion of the acquisition price for Kapadia Consulting,
Inc. on September 26, 2006, as described under v) below. |
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q) |
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Concurrently with the closing of the PIPE Transaction pursuant to the Securities Purchase
Agreement described above, the holders of all of our outstanding Series E Preferred Stock
converted such shares into 21,648,346 shares of our common stock. The Series E Preferred
Stock as originally issued was convertible at $15.00 per share but this had been adjusted
pursuant to private placements we made in 2005. Prior to the PIPE Transaction, the conversion
price was $6.67 per share and the outstanding Series E shares were convertible into 1,574,027
shares of our common stock (adjusted for the reverse stock split), however, the Series E
contained antidilution provisions which automatically reduced the conversion price of the
Series E to the $1.00 per share issuance price of common stock in the PIPE Transaction. This
adjustment in the conversion price resulted in 20,074,319 additional shares being issued upon
conversion of the Series E. |
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r) |
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A number of our common stock warrants, all but one of which are held by former holders of our
Series E Convertible Preferred Stock (the exception is a warrant held by an affiliate of a
former holder of Series E Preferred), contain antidilution provisions that automatically
adjust the exercise price on the warrants to the issuance price of any security convertible
into our common stock if the price is less than the exercise price on the holders warrant.
Prior to the PIPE Transaction, the exercise price on these warrants ranged from $13.50 per
share to $15.00 per share (adjusted for the reverse split). The issuance of common stock in
the PIPE Transaction caused the exercise price on these warrants to automatically be reduced
to $1.00 per share. |
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s) |
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Immediately following completion of the PIPE Transaction and prepayment of the Laurus term
loans, Laurus elected to convert the entire outstanding balance on its revolving line of
credit, along with accrued interest thereon, into 950,865 shares of our common stock. In
addition, in consideration of our issuance of 392,596 shares of common stock, Laurus agreed to
(i) waive the payment of liquidated damages due as a result of our failure to register shares
of common stock into which the November 2005 $5 million term loan was convertible, and (ii)
terminate the requirement that we pay it a portion of the cash flows generated by VNPP
projects for a period of 5 years following the repayment of the November 2005 $5 million
convertible term loan. |
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t) |
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On June 30, 2006, we issued 5,000,000 shares to the Parke Family Trust as part of the
consideration in the acquisition of Parke P.A.N.D.A. Corporation. |
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u) |
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During the first six months of 2006, our Board of Directors declared dividends payable on our
Series E Convertible Preferred Stock of $698,000. The dividends were paid with 6,980
additional shares of Series E Convertible Preferred Stock. |
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v) |
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On July 25, 2006, we issued a three year warrant to purchase 60,000 shares of our common
stock at $1.00 per share to Bristol Capital, Ltd.. |
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w) |
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On September 26, 2006, we issued 500,000 shares of our common stock to Pradeep and Susan
Kapadia as part of the consideration in the acquisition of Kapadia Consulting, Inc. |
II-7
2007 Transactions
x) |
|
On January 24, 2007, we issued 345,583 shares of our common stock to the 17 investors who
purchased shares of our common stock as part of the June 29, 2006 PIPE Transaction. The
shares were issued in satisfaction of a penalties resulting from our inability to have the
registration statement to register the shares issued as part of the transaction declared
effective by the close of business on November 4, 2006, as required under the PIPE Transaction
agreements. The 345,583 shares satisfied penalties accrued through December 31, 2006. |
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y) |
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On February 2, 2007, we issued an additional 184,708 shares of our common stock in
satisfaction of the registration penalties described in (x) above for the period from January
1, 2007 through January 31, 2007. |
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z) |
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On February 15, 2007, we issued an additional 83,417 shares of our common stock in
satisfaction of the registration penalties described in (x) above for the period from February
1, 2007 through February 14, 2007, the date that the registration statement was declared
effective. |
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aa) |
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On February 23, 2007, we commenced a rights offering to stockholders
in which we distributed to each holder of record as of February 23,
2007 (other than the former Series E Preferred stockholders and Daniel
Parke, who waived their rights to participate), five non-transferable
subscription rights to purchase shares of our common stock at $1.00
per share. Stockholders that participated in the rights offering were
also able to subscribe for any shares that were not purchased by other
stockholders pursuant to their subscription rights. The rights
offering closed on March 30, 2007 and raised a total of $2,999,632
through the issuance of 2,999,632 shares of common stock to 260 of our
existing stockholders. We received the proceeds from the offering and
issued the common stock to the participants during the first week of
April 2007. The proceeds from the offering will be used for general
purposes and to fund acquisitions. |
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bb) |
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During the second quarter of 2007 in connection with the placement of
the subordinated convertible term notes (see Note 10 to our condensed
consolidated financial statements) we issued four-year warrants to
eight investors, including Richard Kiphart, our chairman and largest
individual stockholder, to purchase 1,442,306 shares of our common
stock at $1.04 per share. These warrants were valued at $1,136,537
using a modified-Black Scholes option pricing model utilizing the
following assumptions: risk free rate of 4.846%, expected volatility
of 93.3%, expected dividend of $0 and expected life of four years.
The value of the warrants was recorded as a discount to the
subordinated convertible term notes and will be amortized over the
life of the notes using the effective interest method. If these
warrants are exercised for cash, the proceeds will be used for general
corporate purposes. |
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cc) |
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During the second quarter of 2007 five investors exercised their
warrants to purchase an aggregate of 10,078 shares of our common stock
at $0.90 per share. The proceeds of $7,595 will be used for general
corporate purposes. |
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dd) |
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As discussed in Note 5 to our annual report on Form 10-K for the year
ended December 31, 2006, as part of the acquisition of MPG, 166,148
shares of common stock were deposited in escrow for the benefit of the
selling stockholders of MPG to be released over the two year period
following the April 30, 2005 purchase of MPG if MPG achieved certain
revenue targets during the period. During May 2007 we issued 19,729
shares to the former MPG stockholders which we determined we owed them
pursuant to the MPG merger agreement. These shares were valued at
$1.27 per share, the market value on the date of their release, and |
II-8
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recorded as an increase in the goodwill associated with the MPG acquisition. The remaining
146,419 shares that were in escrow were returned to us and canceled. |
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ee) |
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Delano Group Securities LLC acted as an advisor on the acquisition of
MPG in 2005 and part of the compensation for its services was tied to
the purchase price paid for MPG. Delano was formerly owned by David
Asplund. Mr. Asplund left Delano and became the CEO of Lime Energy on
January 23, 2006. In connection with the release of the escrow shares
to the former stockholders of MPG we issued Mr. Asplund 986 shares of
our common stock in May 2007 in satisfaction of the commission owed
Delano. |
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ff) |
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On June 6, 2007, we acquired, retroactive to May 31, 2007, the assets
and assumed certain liabilities of George Bradley Boyett dba Texas
Energy Products. The purchase consideration consisted of 200,000
shares of our common stock and cash of $312,787. |
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gg) |
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On June 30, 2007, we issued 10,955 shares of our common stock to the
holders of our subordinated convertible term notes in satisfaction of
50% of the interest owed on the note. |
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hh) |
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On August 6, 2007, we acquired the assets and assumed certain
liabilities retroactive to July 31, 2007 of Preferred Lighting Inc.
The purchase consideration consisted of 105,485 shares of our common
stock and cash of $300,000. |
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No underwriters were involved in any of the transactions described above. All of the
securities issued in the foregoing transactions were issued by us in reliance upon the exemption
from registration available under Section 4(2) of the Securities Act, including Regulation D
promulgated thereunder, in that the transactions involved the issuance and sale of our securities
to financially sophisticated individuals or entities that were aware of our activities and business
and financial condition and took the securities for investment purposes and understood the
ramifications of their actions. Certain of the purchasers also represented that they were
accredited investors as defined in Regulation D and were acquiring such securities for investment
for their own account and not for distribution. All certificates representing the common stock so
issued have a legend imprinted on them stating that the shares have not been registered under the
Securities Act and cannot be transferred until properly registered under the Securities Act or an
exemption applies.
II-9
Item 16. Exhibits
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Exhibit |
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Number |
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Description of Exhibit |
2.1
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Agreement and Plan of Merger, dated as of April
29, 2005, by and among the Company, MPG
Acquisition Corporation, and Maximum Performance
Group, Inc. (Incorporated herein by reference to
Exhibit 10.2 of the Companys Current Report on
Form 8-K dated April 28, 2005 and filed on May
4, 2005) |
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2.2.1
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Agreement and Plan of Merger, dated as of May
19, 2006, by and among the Company, Parke
Acquisition LLC, and Parke P.A.N.D.A.
Corporation (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated May 19, 2006 and filed on May 22,
2006) |
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2.2.2
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Joinder and Amendment to Agreement and Plan of
Merger by and among the Company, Parke
Acquisition LLC, and Parke P.A.N.D.A.
Corporation (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated June 29, 2006 and filed with the
SEC on July 6, 2006) |
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2.3
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Agreement and Plan of Merger dated September 26,
2006 by and among the Company, Kapadia
Acquisition, Inc., Kapadia Consulting, Inc., and
Pradeep Kapadia (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated September 26,
2006 filed with the SEC on September 29, 2006) |
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3.1.1
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Certificate of Incorporation (Incorporated
herein by reference to Exhibit 3.01 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
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3.1.2
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Certificate of Amendment to Certificate of
Incorporation dated August 30, 2001
(Incorporated herein by reference to Exhibit
3.02 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
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3.1.3
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Certificate of Amendment to Certificate of
Incorporation dated July 31, 2002 (Incorporated
herein by reference to Exhibit 3.03 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
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3.1.4
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Certificate of Amendment to Certificate of
Incorporation dated May 4, 2005 (Incorporated
herein by reference to Exhibit 3.04 of the
Companys Amendment No. 4 to Form S-1 on
February 14, 2007 (File No. 333-136992)) |
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3.1.5
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Certificate of Amendment to Certificate of
Incorporation dated January 23, 2007
(Incorporated herein by reference to Exhibit
3.05 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
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3.1.6
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Certificate of Ownership and Merger Merging Lime
Energy Subsidiary Company into Electric City
Corp. (Incorporated herein by reference to
Exhibit 3.06 of the Companys Amendment No. 4 to
Form S-1 filed on February 14, 2007 (File No.
333-136992)) |
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3.1.7
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Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series A Convertible Preferred Stock
of the Company dated August 30, 2001
(Incorporated herein by reference to Exhibit
3.07 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
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3.1.8
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Certificate of Designations of the Relative
Rights and Preferences of the Series B
Convertible Preferred Stock of the Company dated
October 13, 2000 (Incorporated herein by
reference to Exhibit 3.08 of the Companys
Amendment No. 4 to Form S-1 filed on February
14, 2007 (File No. 333-136992)) |
II-10
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
3.1.9
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series C Convertible Preferred Stock
of the Company dated June 3, 2002 (Incorporated
herein by reference to Exhibit 3.09 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.10
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series D Convertible Preferred Stock
of the Company dated June 26, 2003 (Incorporated
herein by reference to Exhibit 3.10 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.11
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series E Convertible Preferred Stock
of the Company dated March 18, 2004
(Incorporated herein by reference to Exhibit
3.11 of the Companys Amendment No. 4 to Form
S-1 filed with the SEC on February 14, 2007
(File No. 333-136992)) |
|
|
|
|
3.2
|
|
Amended and Restated Bylaws, as amended
(Incorporated herein by reference to Exhibit 3.1
of the Companys Current Report on Form 8-K
dated June 8, 2007, filed June 11, 2007. |
|
|
|
|
4.1
|
|
Specimen Stock Certificate (Incorporated herein
by reference to Exhibit 4.1 of the Companys
Annual Report on Form 10-K for the year ended
December 31, 2006 and filed April 2, 2007) |
|
|
|
4.2.1
|
|
2001 Stock Incentive Plan (Incorporated herein
by reference to Annex B of the Companys Proxy
Statement on Form 14A filed with the SEC on
April 28, 2006) |
|
|
|
4.2.2
|
|
Amendment to Stock Incentive Plan (Incorporated
herein by reference to Annex A of the Companys
Proxy Statement on Form 14A filed with the SEC
on April 28, 2006) |
|
|
|
4.3
|
|
Amended and Restated Investor Rights Agreement,
dated as of March 19, 2004 made by and among the
Company and Newcourt Capital USA Inc., CIT
Capital Securities, Inc., Morgan Stanley Dean
Witter Equity Funding, Inc., Originators
Investment Plan, L.P., Cinergy Ventures II, LLC,
Leaf Mountain Company, LLC, SF Capital Partners,
Ltd., Richard Kiphart, David P. Asplund, John
Thomas Hurvis Revocable Trust, John Donohue,
Augustine Fund, LP, And Technology
Transformation Venture Fund, LP (Incorporated
herein by reference to Exhibit 4.6 of the
Companys Current Report on Form 8-K dated March
19, 2004 filed with the SEC on March 23, 2004) |
|
|
|
4.4
|
|
Amended and Restated Directors Stock Option
Plan (Incorporated herein by reference to
Exhibit 4.63 of the Companys Quarterly Report
on Form 10-Q for the period ended March 31,
2004, filed on May 13, 2004) |
|
|
|
4.5
|
|
Form of Common Stock Warrant Used to Pay Certain
Vendors (Incorporated herein by reference to
Exhibit 4.44 of the Companys Annual Report on
Form 10-K/A for the year ended December 31, 2004
and filed on April 14, 2005) |
|
|
|
4.6
|
|
Form of Common Stock Warrant (with Cashless
Exercise Provision) Used to Pay Certain Vendors
(Incorporated herein by reference to Exhibit
4.45 of the Companys Annual Report on Form
10-K/A for the year ended December 31, 2004 and
filed on April 14, 2005) |
|
|
|
4.7
|
|
Form of Common Stock Warrant, With Vesting
Period issued April 28, 2005 Incorporated herein
by reference to Exhibit 4.1 of the Companys
Current Report on Form 8-K dated April 28, 2005
filed on May 4, 2005) |
II-11
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
4.8
|
|
Form of Common Stock Warrant, Without Vesting
Period issued April 28, 2005 Incorporated herein
by reference to Exhibit 4.2 of the Companys
Current Report on Form 8-K dated April 28, 2005
filed on May 4, 2005) |
|
|
|
4.9
|
|
Stock Trading Agreement dated as of April 29,
2005 Incorporated herein by reference to Exhibit
4.3 of the Companys Current Report on Form 8-K
dated April 28, 2005 filed on May 4, 2005) |
|
|
|
4.10
|
|
Warrant Certificate dated November 22, 2005 to
Purchase 2,000,000 shares of common stock Par
Value $0.0001 Per Share, of the Company issued
to Laurus Master Fund, Ltd. (Incorporated herein
by reference to Exhibit 4.1 of the Companys
Current Report on Form 8-K/A dated November 22,
2005 and filed on February 9, 2006) |
|
|
|
4.11
|
|
Registration Rights Agreement dated November 22,
2005 by and between the Company and Laurus
Master Fund, Ltd. (Incorporated herein by
reference to Exhibit 4.2 of the Companys
Current Report on Form 8-K/A dated November 22,
2005 and filed on February 9, 2006) |
|
|
|
4.12
|
|
Employee Stock Option Agreement dated June 30,
2006 between the Company and Daniel Parke
(Incorporated herein by reference to Exhibit
10.5 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
4.13
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and David Asplund
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.14
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Daniel Parke
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.15
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.16
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Leonard Pisano
(Incorporated herein by reference to Exhibit
10.4 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.17
|
|
Employee Option Agreement dated August 15, 2006
between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated August 15, 2006 filed on August 18, 2006) |
|
|
|
|
4.18
|
|
Warrant Certificate dated May 29, 2007 to
purchase shares of common stock, par value
$0.0001 per share, of the Company issued Richard
P. Kiphart (Incorporated herein by reference to
Exhibit 4.1 of the Companys Current Report on
Form 8-K dated May 29, 2007 filed on May 30,
2007) |
|
|
|
|
5.1
|
|
Opinion of Schwartz Cooper Chartered with
respect to the legality of the common stock
being registered (Incorporated herein by
reference to Exhibit 5.01 of the Companys
Amendment No. 4 to Form S-1 filed on February
14, 2007 (File No. 333-136992)) |
|
|
|
10.1
|
|
Sales, Distribution and Patent License
Agreement, dated January 1, 1998, by and between
Giorgio Reverberi and Joseph C. Marino
(Incorporated herein by reference to Exhibit
10.1 of the Companys registration statement on
Form 10-SB filed on September 9, 1999 (No.
000-27291)) |
|
|
|
10.2
|
|
Sublicense Agreement, dated June 24, 1998, by
and between the Company and Joseph C. Marino
(Incorporated herein by reference to Exhibit
10.2 of the Companys registration statement on
Form 10-SB filed on September 9, 1999 (No.
000-27291)) |
II-12
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
10.3
|
|
Common Stock Purchase Warrant dated September
11, 2003 issued by the Company in favor of
Laurus Master Fund, Ltd. (Incorporated herein by
reference to Exhibit 10.5 of the Companys
Current Report on Form 8-K dated September 11,
2003 filed on September 16, 2003) |
|
|
|
10.4
|
|
Form of Secured Convertible Revolving Note dated
September 11, 2003, made by the Company in favor
of Laurus Master Fund, Ltd. (Incorporated herein
by reference to Exhibit 10.9 of the Companys
Current Report on Form 8-K dated September 11,
2003 and filed on September 16, 2003) |
|
|
|
10.5
|
|
Securities Purchase Agreement dated March 19,
2004, among the Company and Security Equity
Fund, Mid Cap Value Series, SBL Fund, Series V,
Security Mid Cap Growth and SBL Fund Series J
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated March 19, 2004 and filed on March 23,
2004) |
|
|
|
10.6
|
|
Redemption and Exchange Agreement dated March
19, 2004, by and among the Company and Newcourt
Capital USA Inc., Morgan Stanley Dean Witter
Equity Funding, Inc., Originators Investment
Plan, L.P., Cinergy Ventures II, LLC, Leaf
Mountain Company, LLC, SF Capital Partners,
Ltd., Richard Kiphart, David P. Asplund, John
Thomas Hurvis Revocable Trust, John Donohue,
Augustine Fund, LP, and Technology
Transformation Venture Fund, LP (Incorporated
herein by reference to Exhibit 10.2 of the
Companys Current Report on Form 8-K dated March
19, 2004 and filed on March 23, 2004) |
|
|
|
10.7.1
|
|
Third Amended and Restated Mortgage, Assignment
of Rents and Security Agreement dated December
13, 2005 by the Company and American Chartered
Bank (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated December 13, 2005 and filed on
December 15, 2005) |
|
|
|
10.7.2
|
|
Fourth Modification to Mortgage, Assignment of
Rents and Security Agreement dated December 28,
2006 by the Company and American Chartered Bank
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated December 28, 2006 and filed on December
29, 2006) |
|
|
|
10.8
|
|
Second Amended and Restated Mortgage Note dated
December 28, 2006, by and among American
Chartered Bank and the Company, and Great Lakes
Controlled Energy Corporation
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated December 28, 2006 and filed on December
29, 2006) |
|
|
|
10.9
|
|
Employment Agreement, dated as of May 3, 2005,
between the Company and Leonard Pisano
(Incorporated herein by reference to Exhibit
10.31 of the Companys Annual Report on Form
10-K for the year ended December 31, 2005 and
filed March 21, 2006) |
|
|
|
10.10
|
|
Consulting Agreement with John Mitola dated
January 21, 2006 (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated January 22,
2006 filed with the SEC on January 26, 2006) |
|
|
|
10.11
|
|
Employment Agreement, dated as of January 23,
2006, between the Company and David Asplund
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated January 22, 2006 and filed on February 22,
2006) |
|
|
|
10.12
|
|
Stock Purchase Agreement dated as of April 3,
2006 between the Company, Eugene Borucki and
Denis Enberg (Incorporated herein by reference
to Exhibit 10.1 of the Companys Current Report
on Form 8-K dated April 3, 2006 and filed on
April 7, 2006) |
II-13
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
10.13
|
|
Non-Competition, Non-Disclosure And
Non-Solicitation Agreement Dated as of March 31,
2006 between the Company and Eugene Borucki
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated April 3, 2006 and filed on April 7, 2006) |
|
|
|
10.14
|
|
Non-Competition, Non-Disclosure And
Non-Solicitation Agreement Dated as of March 31,
2006 between the Company and Denis Enberg
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated April 3, 2006 and filed on April 7, 2006) |
|
|
|
10.15
|
|
Securities Purchase Agreement dated June 29,
2006 by and among the Company and the investors
named therein (Incorporated herein by reference
to Exhibit 10.2 of the Companys Current Report
on Form 8-K dated June 29, 2006 and filed on
July 6, 2006) |
|
|
|
10.16
|
|
Employment Agreement dated as of June 30, 2006
between Parke Acquisition, LLC and Daniel Parke
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
10.17
|
|
Non-Competition Agreement dated as of June 30,
2006 by and among the Company, Parke
Acquisition, LLC and Daniel Parke (Incorporated
herein by reference to Exhibit 10.4 of the
Companys Current Report on Form 8-K dated June
29, 2006 filed on July 6, 2006) |
|
|
|
10.18
|
|
First Amendment to Commercial Lease Agreement
dated June 30, 2006 by and between M&D
Investments and Parke Industries, LLC
(Incorporated herein by reference to Exhibit
10.6 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
10.19
|
|
Employment Agreement, dated as of August 9,
2006, between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated August 15, 2006 and filed on August 18,
2006) |
|
|
|
10.20
|
|
Agreement with The Parke Family Trust dated
February 1, 2007 (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated January 24,
2007 and filed on February 21, 2007) |
|
|
|
10.21
|
|
Agreement with the PIPE Transaction investors
dated February 1, 2007 (Incorporated herein by
reference to Exhibit 10.2 of the Companys
Current Report on Form 8-K dated January 24,
2007 and filed on February 21, 2007) |
|
|
|
10.22
|
|
Agreement with David Asplund dated November 3,
2006 (Incorporated herein by reference to
Exhibit 10.3 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
10.23
|
|
Agreement with Richard Kiphart dated November 2,
2006 (Incorporated herein by reference to
Exhibit 10.4 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
10.24
|
|
Agreement with David Valentine dated November 2,
2006 (Incorporated herein by reference to
Exhibit 10.5 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
|
10.25
|
|
Loan Agreement between the Company and various
lenders, including Richard P. Kiphart, dated May
29, 2007 (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated May 29, 2007 filed on May 30,
2007) |
|
|
|
10.26
|
|
Investor Rights Agreement between the Company
and various investors, including Richard P.
Kiphart, dated May 29, 2007 (Incorporated herein
by reference to Exhibit 10.2 of the Companys
Current Report on Form 8-K dated May 29, 2007
filed on May 30, 2007) |
II-14
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
14.1
|
|
Code of Ethics For Chief Executive Officer and
Chief Financial Officer of the Company
(Incorporated herein by reference to Exhibit 14
of the Companys Annual Report on Form 10-KSB
for the year ended December 31, 2003 and filed
on March 29, 2004) |
|
|
|
14.2
|
|
Code of Business Conduct and Ethics (All
Officers, Directors and Employees) (Incorporated
herein by reference to Exhibit 14.2 of the
Companys Annual Report on Form 10-K for the
year ended December 31, 2005 and filed March 21,
2006) |
|
|
|
21
|
|
List of subsidiaries (Incorporated herein by
reference to Exhibit 21 of the Companys Annual
Report on Form 10-K for the year ended December
31, 2006 and filed on April 2, 2007) |
|
|
|
23.1*
|
|
Consent of BDO Seidman LLP |
|
|
|
23.2**
|
|
Consent of Schwartz Cooper Chartered |
|
|
|
|
23.3**
|
|
Consent of Rittenhouse Capital Partners, LLC |
|
|
|
23.4*
|
|
Consent of BDO Seidman LLP |
|
|
|
|
24**
|
|
Power of Attorney |
*Filed herewith
**Previously filed
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
|
(1) |
|
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: |
|
(i) |
|
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, |
|
|
(ii) |
|
To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth
in the Calculation of Registration Fee table in the effective registration
statement, |
|
|
(iii) |
|
To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement; |
provided, however, that:
II-15
|
(A) |
|
paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-8, and the information required to be
included in a post-effective amendment by such clauses is contained in reports
filed with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement;
and |
|
|
(B) |
|
Paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Securities and Exchange Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement, or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of the Registration Statement. |
|
|
(C) |
|
Provided further, however, that paragraphs
(1)(i) and (1)(ii) do not apply if the registration statement is for an
offering of asset backed securities on Form S-1 or Form S-3, and the
information required to be included in a post-effective amendment is provided
pursuant to Item 1100(c) of Regulation AB. |
|
(2) |
|
That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
|
|
(3) |
|
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering
thereof. |
|
|
(4) |
|
That, for purposes of determining liability under the Securities Act of 1933
to any purchaser: |
|
(i) |
|
If the registrant is relying on Rule 430B: |
|
(A) |
|
Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and |
|
|
(B) |
|
Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an |
II-16
|
|
|
underwriter, such date shall be deemed to be a new effective date of
the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such
effective date; or |
|
(ii) |
|
If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration statement relating to
an offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be part
of and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
date of first use. |
|
(5) |
|
That, for the purpose of determining liability of the Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
|
|
|
|
The undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser: |
|
(i) |
|
Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule 424; |
|
|
(ii) |
|
Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant; |
|
|
(iii) |
|
The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
|
II-17
|
(iv) |
|
Any other communication that is an offer in the offering made
by the undersigned Registrant to the purchaser. |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than for the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused
this Post-Effective Amendment No. 2 to the Registration Statement on Form S-1 to be signed on its
behalf by the undersigned, in the City of Elk Grove Village, State of Illinois, on the 14th day of
September 2007.
|
|
|
|
|
LIME ENERGY CO.
|
|
By: |
/s/ David Asplund
|
|
|
|
David Asplund |
|
|
|
Chief Executive Officer |
|
|
II-19
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities below.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
Chief Executive Officer |
|
|
/s/ David Asplund
|
|
(principal executive officer)
|
|
September 14, 2007 |
|
|
|
|
|
David Asplund |
|
|
|
|
|
|
|
|
|
|
|
Chief Financial Officer,
Treasurer and Corporate
Secretary (principal financial
officer and principal accounting officer) |
|
|
/s/ Jeffrey Mistarz
|
|
|
|
September 14, 2007 |
|
|
|
|
|
Jeffrey Mistarz |
|
|
|
|
|
|
|
|
|
*
|
|
Chairman of the Board
|
|
September 14, 2007 |
|
|
|
|
|
Richard Kiphart |
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 14, 2007 |
|
|
|
|
|
Gregory Barnum |
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 14, 2007 |
|
|
|
|
|
William Carey |
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 14, 2007 |
|
|
|
|
|
Joseph Desmond |
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 14, 2007 |
|
|
|
|
|
Daniel Parke |
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
September 14, 2007 |
|
|
|
|
|
David Valentine |
|
|
|
|
|
|
|
|
|
|
|
|
|
*By: |
/s/ Jeffrey Mistarz
|
|
|
|
Jeffrey Mistarz |
|
|
|
Attorney-in-Fact |
|
|
II-20
INDEX TO EXHIBITS
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
2.1
|
|
Agreement and Plan of Merger, dated as of April
29, 2005, by and among the Company, MPG
Acquisition Corporation, and Maximum Performance
Group, Inc. (Incorporated herein by reference to
Exhibit 10.2 of the Companys Current Report on
Form 8-K dated April 28, 2005 and filed on May
4, 2005) |
|
|
|
2.2.1
|
|
Agreement and Plan of Merger, dated as of May
19, 2006, by and among the Company, Parke
Acquisition LLC, and Parke P.A.N.D.A.
Corporation (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated May 19, 2006 and filed on May 22,
2006) |
|
|
|
2.2.2
|
|
Joinder and Amendment to Agreement and Plan of
Merger by and among the Company, Parke
Acquisition LLC, and Parke P.A.N.D.A.
Corporation (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated June 29, 2006 and filed with the
SEC on July 6, 2006) |
|
|
|
2.3
|
|
Agreement and Plan of Merger dated September 26,
2006 by and among the Company, Kapadia
Acquisition, Inc., Kapadia Consulting, Inc., and
Pradeep Kapadia (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated September 26,
2006 filed with the SEC on September 29, 2006) |
|
|
|
3.1.1
|
|
Certificate of Incorporation (Incorporated
herein by reference to Exhibit 3.01 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.2
|
|
Certificate of Amendment to Certificate of
Incorporation dated August 30, 2001
(Incorporated herein by reference to Exhibit
3.02 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
|
|
|
3.1.3
|
|
Certificate of Amendment to Certificate of
Incorporation dated July 31, 2002 (Incorporated
herein by reference to Exhibit 3.03 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.4
|
|
Certificate of Amendment to Certificate of
Incorporation dated May 4, 2005 (Incorporated
herein by reference to Exhibit 3.04 of the
Companys Amendment No. 4 to Form S-1 on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.5
|
|
Certificate of Amendment to Certificate of
Incorporation dated January 23, 2007
(Incorporated herein by reference to Exhibit
3.05 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
|
|
|
3.1.6
|
|
Certificate of Ownership and Merger Merging Lime
Energy Subsidiary Company into Electric City
Corp. (Incorporated herein by reference to
Exhibit 3.06 of the Companys Amendment No. 4 to
Form S-1 filed on February 14, 2007 (File No.
333-136992)) |
|
|
|
3.1.7
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series A Convertible Preferred Stock
of the Company dated August 30, 2001
(Incorporated herein by reference to Exhibit
3.07 of the Companys Amendment No. 4 to Form
S-1 filed on February 14, 2007 (File No.
333-136992)) |
|
|
|
3.1.8
|
|
Certificate of Designations of the Relative
Rights and Preferences of the Series B
Convertible Preferred Stock of the Company dated
October 13, 2000 (Incorporated herein by
reference to Exhibit 3.08 of the Companys
Amendment No. 4 to Form S-1 filed on February
14, 2007 (File No. 333-136992)) |
II-21
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
3.1.9
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series C Convertible Preferred Stock
of the Company dated June 3, 2002 (Incorporated
herein by reference to Exhibit 3.09 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.10
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series D Convertible Preferred Stock
of the Company dated June 26, 2003 (Incorporated
herein by reference to Exhibit 3.10 of the
Companys Amendment No. 4 to Form S-1 filed on
February 14, 2007 (File No. 333-136992)) |
|
|
|
3.1.11
|
|
Certificate of Designations, Preferences and
Relative, Participating, Optional and Other
Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions
Thereof of Series E Convertible Preferred Stock
of the Company dated March 18, 2004
(Incorporated herein by reference to Exhibit
3.11 of the Companys Amendment No. 4 to Form
S-1 filed with the SEC on February 14, 2007
(File No. 333-136992)) |
|
|
|
|
3.2
|
|
Amended and Restated Bylaws, as amended
(Incorporated herein by reference to Exhibit 3.1
of the Companys Report on Form 8-K filed June
11, 2007) |
|
|
|
|
4.1
|
|
Specimen Stock Certificate (Incorporated herein
by reference to Exhibit 4.1 of the Companys
Annual Report on Form 10-K for the year ended
December 31, 2006 and filed April 2, 2007) |
|
|
|
4.2.1
|
|
2001 Stock Incentive Plan (Incorporated herein
by reference to Annex B of the Companys Proxy
Statement on Form 14A filed with the SEC on
April 28, 2006) |
|
|
|
4.2.2
|
|
Amendment to Stock Incentive Plan (Incorporated
herein by reference to Annex A of the Companys
Proxy Statement on Form 14A filed with the SEC
on April 28, 2006) |
|
|
|
4.3
|
|
Amended and Restated Investor Rights Agreement,
dated as of March 19, 2004 made by and among the
Company and Newcourt Capital USA Inc., CIT
Capital Securities, Inc., Morgan Stanley Dean
Witter Equity Funding, Inc., Originators
Investment Plan, L.P., Cinergy Ventures II, LLC,
Leaf Mountain Company, LLC, SF Capital Partners,
Ltd., Richard Kiphart, David P. Asplund, John
Thomas Hurvis Revocable Trust, John Donohue,
Augustine Fund, LP, And Technology
Transformation Venture Fund, LP (Incorporated
herein by reference to Exhibit 4.6 of the
Companys Current Report on Form 8-K dated March
19, 2004 filed with the SEC on March 23, 2004) |
|
|
|
4.4
|
|
Amended and Restated Directors Stock Option
Plan (Incorporated herein by reference to
Exhibit 4.63 of the Companys Quarterly Report
on Form 10-Q for the period ended March 31,
2004, filed on May 13, 2004) |
|
|
|
4.5
|
|
Form of Common Stock Warrant Used to Pay Certain
Vendors (Incorporated herein by reference to
Exhibit 4.44 of the Companys Annual Report on
Form 10-K/A for the year ended December 31, 2004
and filed on April 14, 2005) |
|
|
|
4.6
|
|
Form of Common Stock Warrant (with Cashless
Exercise Provision) Used to Pay Certain Vendors
(Incorporated herein by reference to Exhibit
4.45 of the Companys Annual Report on Form
10-K/A for the year ended December 31, 2004 and
filed on April 14, 2005) |
|
|
|
4.7
|
|
Form of Common Stock Warrant, With Vesting
Period issued April 28, 2005 Incorporated herein
by reference to Exhibit 4.1 of the Companys
Current Report on Form 8-K dated April 28, 2005
filed on May 4, 2005) |
II-22
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
4.8
|
|
Form of Common Stock Warrant, Without Vesting
Period issued April 28, 2005 Incorporated herein
by reference to Exhibit 4.2 of the Companys
Current Report on Form 8-K dated April 28, 2005
filed on May 4, 2005) |
|
|
|
4.9
|
|
Stock Trading Agreement dated as of April 29,
2005 Incorporated herein by reference to Exhibit
4.3 of the Companys Current Report on Form 8-K
dated April 28, 2005 filed on May 4, 2005) |
|
|
|
4.10
|
|
Warrant Certificate dated November 22, 2005 to
Purchase 2,000,000 shares of common stock Par
Value $0.0001 Per Share, of the Company issued
to Laurus Master Fund, Ltd. (Incorporated herein
by reference to Exhibit 4.1 of the Companys
Current Report on Form 8-K/A dated November 22,
2005 and filed on February 9, 2006) |
|
|
|
4.11
|
|
Registration Rights Agreement dated November 22,
2005 by and between the Company and Laurus
Master Fund, Ltd. (Incorporated herein by
reference to Exhibit 4.2 of the Companys
Current Report on Form 8-K/A dated November 22,
2005 and filed on February 9, 2006) |
|
|
|
4.12
|
|
Employee Stock Option Agreement dated June 30,
2006 between the Company and Daniel Parke
(Incorporated herein by reference to Exhibit
10.5 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
4.13
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and David Asplund
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.14
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Daniel Parke
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.15
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.16
|
|
Employee Stock Option Agreement dated July 11,
2006 between the Company and Leonard Pisano
(Incorporated herein by reference to Exhibit
10.4 of the Companys Current Report on Form 8-K
dated July 11, 2006 filed on July 17, 2006) |
|
|
|
4.17
|
|
Employee Option Agreement dated August 15, 2006
between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated August 15, 2006 filed on August 18, 2006) |
|
|
|
|
4.18
|
|
Warrant Certificate dated May 29, 2007 to
purchase shares of common stock, par value
$0.0001 per share, of the Company issued Richard
P. Kiphart (Incorporated herein by reference to
Exhibit 4.1 of the Companys Current Report on
Form 8-K dated May 29, 2007 filed on May 30,
2007) |
|
|
|
|
5.1
|
|
Opinion of Schwartz Cooper Chartered with
respect to the legality of the common stock
being registered (Incorporated herein by
reference to Exhibit 5.01 of the Companys
Amendment No. 4 to Form S-1 filed on February
14, 2007 (File No. 333-136992)) |
|
|
|
10.1
|
|
Sales, Distribution and Patent License
Agreement, dated January 1, 1998, by and between
Giorgio Reverberi and Joseph C. Marino
(Incorporated herein by reference to Exhibit
10.1 of the Companys registration statement on
Form 10-SB filed on September 9, 1999 (No.
000-27291)) |
|
|
|
10.2
|
|
Sublicense Agreement, dated June 24, 1998, by
and between the Company and Joseph C. Marino
(Incorporated herein by reference to Exhibit
10.2 of the Companys registration statement on
Form 10-SB filed on September 9, 1999 (No.
000-27291)) |
II-23
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
10.3
|
|
Common Stock Purchase Warrant dated September
11, 2003 issued by the Company in favor of
Laurus Master Fund, Ltd. (Incorporated herein by
reference to Exhibit 10.5 of the Companys
Current Report on Form 8-K dated September 11,
2003 filed on September 16, 2003) |
|
|
|
10.4
|
|
Form of Secured Convertible Revolving Note dated
September 11, 2003, made by the Company in favor
of Laurus Master Fund, Ltd. (Incorporated herein
by reference to Exhibit 10.9 of the Companys
Current Report on Form 8-K dated September 11,
2003 and filed on September 16, 2003) |
|
|
|
10.5
|
|
Securities Purchase Agreement dated March 19,
2004, among the Company and Security Equity
Fund, Mid Cap Value Series, SBL Fund, Series V,
Security Mid Cap Growth and SBL Fund Series J
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated March 19, 2004 and filed on March 23,
2004) |
|
|
|
10.6
|
|
Redemption and Exchange Agreement dated March
19, 2004, by and among the Company and Newcourt
Capital USA Inc., Morgan Stanley Dean Witter
Equity Funding, Inc., Originators Investment
Plan, L.P., Cinergy Ventures II, LLC, Leaf
Mountain Company, LLC, SF Capital Partners,
Ltd., Richard Kiphart, David P. Asplund, John
Thomas Hurvis Revocable Trust, John Donohue,
Augustine Fund, LP, and Technology
Transformation Venture Fund, LP (Incorporated
herein by reference to Exhibit 10.2 of the
Companys Current Report on Form 8-K dated March
19, 2004 and filed on March 23, 2004) |
|
|
|
10.7.1
|
|
Third Amended and Restated Mortgage, Assignment
of Rents and Security Agreement dated December
13, 2005 by the Company and American Chartered
Bank (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated December 13, 2005 and filed on
December 15, 2005) |
|
|
|
10.7.2
|
|
Fourth Modification to Mortgage, Assignment of
Rents and Security Agreement dated December 28,
2006 by the Company and American Chartered Bank
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated December 28, 2006 and filed on December
29, 2006) |
|
|
|
10.8
|
|
Second Amended and Restated Mortgage Note dated
December 28, 2006, by and among American
Chartered Bank and the Company, and Great Lakes
Controlled Energy Corporation
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated December 28, 2006 and filed on December
29, 2006) |
|
|
|
10.9
|
|
Employment Agreement, dated as of May 3, 2005,
between the Company and Leonard Pisano
(Incorporated herein by reference to Exhibit
10.31 of the Companys Annual Report on Form
10-K for the year ended December 31, 2005 and
filed March 21, 2006) |
|
|
|
10.10
|
|
Consulting Agreement with John Mitola dated
January 21, 2006 (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated January 22,
2006 filed with the SEC on January 26, 2006) |
|
|
|
10.11
|
|
Employment Agreement, dated as of January 23,
2006, between the Company and David Asplund
(Incorporated herein by reference to Exhibit
10.1 of the Companys Current Report on Form 8-K
dated January 22, 2006 and filed on February 22,
2006) |
|
|
|
10.12
|
|
Stock Purchase Agreement dated as of April 3,
2006 between the Company, Eugene Borucki and
Denis Enberg (Incorporated herein by reference
to Exhibit 10.1 of the Companys Current Report
on Form 8-K dated April 3, 2006 and filed on
April 7, 2006) |
II-24
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
10.13
|
|
Non-Competition, Non-Disclosure And
Non-Solicitation Agreement Dated as of March 31,
2006 between the Company and Eugene Borucki
(Incorporated herein by reference to Exhibit
10.2 of the Companys Current Report on Form 8-K
dated April 3, 2006 and filed on April 7, 2006) |
|
|
|
10.14
|
|
Non-Competition, Non-Disclosure And
Non-Solicitation Agreement Dated as of March 31,
2006 between the Company and Denis Enberg
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated April 3, 2006 and filed on April 7, 2006) |
|
|
|
10.15
|
|
Securities Purchase Agreement dated June 29,
2006 by and among the Company and the investors
named therein (Incorporated herein by reference
to Exhibit 10.2 of the Companys Current Report
on Form 8-K dated June 29, 2006 and filed on
July 6, 2006) |
|
|
|
10.16
|
|
Employment Agreement dated as of June 30, 2006
between Parke Acquisition, LLC and Daniel Parke
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
10.17
|
|
Non-Competition Agreement dated as of June 30,
2006 by and among the Company, Parke
Acquisition, LLC and Daniel Parke (Incorporated
herein by reference to Exhibit 10.4 of the
Companys Current Report on Form 8-K dated June
29, 2006 filed on July 6, 2006) |
|
|
|
10.18
|
|
First Amendment to Commercial Lease Agreement
dated June 30, 2006 by and between M&D
Investments and Parke Industries, LLC
(Incorporated herein by reference to Exhibit
10.6 of the Companys Current Report on Form 8-K
dated June 29, 2006 filed on July 6, 2006) |
|
|
|
10.19
|
|
Employment Agreement, dated as of August 9,
2006, between the Company and Jeffrey Mistarz
(Incorporated herein by reference to Exhibit
10.3 of the Companys Current Report on Form 8-K
dated August 15, 2006 and filed on August 18,
2006) |
|
|
|
10.20
|
|
Agreement with The Parke Family Trust dated
February 1, 2007 (Incorporated herein by
reference to Exhibit 10.1 of the Companys
Current Report on Form 8-K dated January 24,
2007 and filed on February 21, 2007)
|
|
|
|
10.21
|
|
Agreement with the PIPE Transaction investors
dated February 1, 2007 (Incorporated herein by
reference to Exhibit 10.2 of the Companys
Current Report on Form 8-K dated January 24,
2007 and filed on February 21, 2007) |
|
|
|
10.22
|
|
Agreement with David Asplund dated November 3,
2006 (Incorporated herein by reference to
Exhibit 10.3 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
10.23
|
|
Agreement with Richard Kiphart dated November 2,
2006 (Incorporated herein by reference to
Exhibit 10.4 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
10.24
|
|
Agreement with David Valentine dated November 2,
2006 (Incorporated herein by reference to
Exhibit 10.5 of the Companys Current Report on
Form 8-K dated January 24, 2007 and filed on
February 21, 2007) |
|
|
|
|
10.25
|
|
Loan Agreement between the Company and various
lenders, including Richard P. Kiphart, dated May
29, 2007 (Incorporated herein by reference to
Exhibit 10.1 of the Companys Current Report on
Form 8-K dated May 29, 2007 filed on May 30,
2007) |
|
|
|
10.26
|
|
Investor Rights Agreement between the Company
and various investors, including Richard P.
Kiphart, dated May 29, 2007 (Incorporated herein
by reference to Exhibit 10.2 of the Companys
Current Report on Form 8-K dated May 29, 2007
filed on May 30, 2007) |
|
II-25
|
|
|
Exhibit |
|
|
Number |
|
Description of Exhibit |
14.1
|
|
Code of Ethics For Chief Executive Officer and
Chief Financial Officer of the Company
(Incorporated herein by reference to Exhibit 14
of the Companys Annual Report on Form 10-KSB
for the year ended December 31, 2003 and filed
on March 29, 2004) |
|
|
|
14.2
|
|
Code of Business Conduct and Ethics (All
Officers, Directors and Employees) (Incorporated
herein by reference to Exhibit 14.2 of the
Companys Annual Report on Form 10-K for the
year ended December 31, 2005 and filed March 21,
2006) |
|
|
|
21
|
|
List of subsidiaries (Incorporated herein by
reference to Exhibit 21 of the Companys Annual
Report on Form 10-K for the year ended December
31, 2006 and filed on April 2, 2007) |
|
|
|
23.1*
|
|
Consent of BDO Seidman LLP |
|
|
|
23.2**
|
|
Consent of Schwartz Cooper Chartered |
|
|
|
23.3**
|
|
Consent of Rittenhouse Capital Partners, LLC |
|
|
|
|
23.4*
|
|
Consent of BDO Seidman LLP |
|
|
24**
|
|
Power of Attorney |
*Filed herewith
**Previously filed
II-26