<PAGE> 1
As filed with the Securities and Exchange Commission on November 16, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTEGRATED ELECTRICAL SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0542208
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
515 POST OAK BOULEVARD, SUITE 450
HOUSTON, TEXAS 77027
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
INTEGRATED ELECTRICAL SERVICES, INC.
NONEXECUTIVE INCENTIVE COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
JOHN F. WOMBWELL
515 POST OAK BOULEVARD, SUITE 450
HOUSTON, TEXAS 77027
(713) 860-1500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
- -------------------------------------------- ---------------------- ------------------ ---------------- -----------------
<S> <C> <C> <C> <C>
Common Stock $.01 Par Value Per Share 2,000,000 Shares $ 12.875 $ 25,750,000 $ 7,159
============================================ ====================== ================== ================ =================
</TABLE>
(1) The number of Shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act,
based upon the average of the high and low prices of the Registrant's
Common Stock on the New York Stock Exchange on November 11, 1999 as
reported in the Wall Street Journal on November 12, 1999.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference hereto pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Integrated Electrical Services, Inc. (the "Company") incorporates
herein by reference the following documents as of their respective dates as
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1998, and as amended on January 22, 1999 and
March 17, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998, and as amended on March 17, 1999;
(c) The Company's Current Report on Form 8-K, as filed with the
SEC on February 4, 1999, and as amended on March 17, 1999;
(d) The Company's Current Report on Form 8-K, as filed with the
SEC on April 29, 1999, and as amended on May 21, 1999;
(e) The Company's Two Reports on Form 8-K, as filed with the SEC
on May 7, 1999 and as amended on May 21, 1999;
(f) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(g) The Company's Current Report on Form 8-K, as filed with the
SEC on May 26, 1999 and as amended on May 28, 1999;
(h) The Company's Current Report on Form 8-K, as filed with the
SEC on June 29, 1999;
(i) The Company's Current Report on Form 8-K, as filed with the
SEC on July 27, 1999;
(j) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
(k) The Company's Current Report on Form 8-K, as filed with the
SEC on September 24, 1999;
(l) The Company's Current Report on Form 8-K, as filed with the
SEC on November 2, 1999; and
(m) The description of the Company's common stock, par value $0.01
per share (the "Common Stock"), contained in the Company's
Registration Statement on Form 8-A (No. 1-13783) filed with
the Commission on January 14, 1998 pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a
II-1
<PAGE> 3
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware 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, 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 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 in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 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 such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
made 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 the circumstances of the 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 on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; that indemnification provided for by Section
145 shall, unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article Eighth of the Company's Amended and Restated Certificate of
Incorporation states that:
II-2
<PAGE> 4
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article Eighth
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this Article
Eighth shall apply to, or have any effect on, the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal. If the DGCL is
amended to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the DGCL, as so amended.
In addition, Article VI of the Company's Bylaws further provides that
the Company shall indemnify its officers, directors and employees to the fullest
extent permitted by law.
The Company enters into indemnification agreements with each of its
executive officers and directors.
II-3
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of Amendment No. 1 to the Company's Form S-1
(No. 333-38715)).
4.2 Bylaws (incorporated by reference to Exhibit 3.2 of Amendment No. 1
to the Company's Form S-1 (No. 333-38715)).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares
being registered.
23.1* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2* Consent of Arthur Andersen LLP.
23.3* Consent of Hertzbach & Company, P.A.
23.4* Consent of KPMG LLP
23.5* Consent of Peck & Kopacek, P.C.
23.6* Consent of Arthur Andersen LLP
23.7* Consent of Arthur Andersen LLP
23.8* Consent of Brockman, Armour & Co. LLC
23.9* Consent of S.J. Gallina & Co., LLP
23.10* Consent of Larson, Allen, Weishair & Co., LLP
23.11* Consent of S.J. Gallina & Co., LLP
23.12* Consent of Elliott, Davis & Company, LLP
23.13* Consent of Reznick Fedder & Silverman
23.14* Consent of Reznick Fedder & Silverman
23.15* Consent of Davidson and Golden, P.C.
23.16* Consent of Cooper, Travis & Company, PLC
23.17* Consent of Mixon, Roy, Metz & Mixon
23.18* Consent of Semple & Cooper, LLP
</TABLE>
II-4
<PAGE> 6
<TABLE>
<S> <C>
24.1* Powers of Attorney (set forth on the signature page contained in Part
II of this Registration Statement).
99.1* Integrated Electrical Services, Inc. Nonexecutive Incentive
Compensation Plan
</TABLE>
- ----------------------------
*filed herewith
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(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;
II-5
<PAGE> 7
(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 paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
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 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-6
<PAGE> 8
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, Integrated
Electrical Services, Inc. certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas on November
15, 1999.
INTEGRATED ELECTRICAL SERVICES, INC.
(Registrant)
By: /s/ Jim P. Wise
----------------------------------------
Jim P. Wise
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of INTEGRATED ELECTRICAL SERVICES, INC. (the "Company") hereby
constitutes and appoints Jim P. Wise, Stanley H. Florance, John F. Wombwell , or
either of them (with full power to each of them to act alone), his true and
lawful attorney-in-fact and agent, with full power of substitution, for him and
on his behalf and in his name, place and stead, in any and all capacities, to
sign, execute and file this Registration Statement under the Securities Act of
1933, as amended, and any or all amendments (including, without limitation,
post-effective amendments), with all exhibits and any and all documents required
to be filed with respect thereto, with the Securities and Exchange Commission or
any regulatory authority, granting unto such attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he himself might or
could do, if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ C. Byron Snyder Chairman of the Board of Directors November 15, 1999
- ------------------------------------------------
C. Byron Snyder
/s/ Jon Pollock Vice Chairman of the Board of November 15, 1999
- ------------------------------------------------ Directors
Jon Pollock
/s/ Jim P. Wise President, Chief Executive Officer November 15, 1999
- ------------------------------------------------ and Director (Principal Executive
Jim P. Wise Officer)
/s/ Jerry M. Mills President and Director November 15, 1999
- ------------------------------------------------
Jerry M. Mills
/s/ Ben L. Mueller Senior Vice President, Chief November 15, 1999
- ------------------------------------------------ Operating Officer - Residential
Ben L. Mueller and Director
</TABLE>
II-7
<PAGE> 9
<TABLE>
<S> <C> <C>
/s/ Stanley H. Florance Senior Vice President, Chief November 15, 1999
- ------------------------------------------------ Financial Officer (Principal
Stanley H. Florance Financial Officer)
/s/ Richard Muth Director November 15, 1999
- ------------------------------------------------
Richard Muth
/s/ Alan R. Sielbeck Director November 15, 1999
- ------------------------------------------------
Alan R. Sielbeck
/s/ Robert Stalvey Director November 15, 1999
- ------------------------------------------------
Robert Stalvey
/s/ Richard L. Tucker Director November 15, 1999
- ------------------------------------------------
Richard L. Tucker
/s/ Bob Weik Director November 15, 1999
- ------------------------------------------------
Bob Weik
Director November 15, 1999
- ------------------------------------------------
Donald Paul Hodel
/s/ Neil J. DePascal, Jr. Vice President, Chief Accounting November 15, 1999
- ------------------------------------------------ Officer (Principal Accounting
Neil J. DePascal, Jr. Officer)
</TABLE>
II-8
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of Amendment No. 1 to the Company's Form S-1
(No. 333-38715)).
4.2 Bylaws (incorporated by reference to Exhibit 3.2 of Amendment No. 1
to the Company's Form S-1 (No. 333- 38715)).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares
being registered.
23.1* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.2* Consent of Arthur Andersen LLP.
23.3* Consent of Hertzbach & Company, P.A.
23.4* Consent of KPMG LLP
23.5* Consent of Peck & Kopacek, P.C.
23.6* Consent of Arthur Andersen LLP
23.7* Consent of Arthur Andersen LLP
23.8* Consent of Brockman, Armour & Co. LLC
23.9* Consent of S.J. Gallina & Co., LLP
23.10* Consent of Larson, Allen, Weishair & Co., LLP
23.11* Consent of S.J. Gallina & Co., LLP
23.12* Consent of Elliott, Davis & Company, LLP
23.13* Consent of Reznick Fedder & Silverman
23.14* Consent of Reznick Fedder & Silverman
23.15* Consent of Davidson and Golden, P.C.
23.16* Consent of Cooper, Travis & Company, PLC
23.17* Consent of Mixon, Roy, Metz & Mixon
23.18* Consent of Semple & Cooper, LLP
24.1* Powers of Attorney (set forth on the signature page contained in Part
II of this Registration Statement).
99.1* Integrated Electrical Services, Inc. Nonexecutive Incentive
Compensation Plan
</TABLE>
- ----------------------------
*filed herewith
II-9
<PAGE> 1
EXHIBIT 5.1
[ANDREWS & KURTH L.L.P. LETTERHEAD]
Houston, Texas 77002
November 16, 1999
Board of Directors
Integrated Electrical Services, Inc.
515 Post Oak Blvd., Suite 450
Houston, Texas 77027
Gentlemen:
We have acted as counsel to Integrated Electrical Services,
Inc., a Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement") relating to
the registration under the Securities Act of 1933, as amended, of the issuance
of up to 2,000,000 shares (the "Shares") of the Company's common stock, $0.01
par value per share, pursuant to the Company's Nonexecutive Incentive
Compensation Plan (the "Plan").
In connection herewith, we have examined copies of such
statutes, regulations, corporate records and documents, certificates of public
and corporate officials and other agreements, contracts, documents and
instruments as we have deemed necessary as a basis for the opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies. We have also relied, to the extent we deem such reliance proper, upon
information supplied by officers and employees of the Company with respect to
various factual matters material to our opinion.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized, and that such Shares will, when issued in accordance with
the terms of the Plan and when sold in accordance with the prospectus included
in the Registration Statement, be legally issued, fully paid and nonassessable.
This opinion is limited in all respects to the General
Corporation Law of the State of Delaware and the laws of the United States of
America insofar as such laws are applicable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving this consent, we do not thereby admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s ANDREWS & KURTH L.L.P.
2475/2450/2700
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated November 12, 1998
included in Integrated Electrical Services, Inc.'s Annual Report on Form 10-K
for the year ended September 30, 1998, and to all references to our Firm
included in this Form S-8 Registration Statement.
Arthur Andersen LLP
Houston, Texas
November 15, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated July
14, 1998 on the financial statements of Primo Electric Co. included in the
current report on Form 8-K of Integrated Electrical Services, Inc. dated
February 3, 1999 and to all references to our Firm included in this Registration
Statement.
HERTZBACH & COMPANY, P.A.
HS&S Professional Building
10 MUSIC FAIR ROAD
OWINGS MILLS, MD 21117
November 11, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Board of Directors
Kayton Electric, Inc.
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
28, 1998 (November 19, 1998 as to Note 8) on the financial statements of Kayton
Electric, Inc., included in the current report on Form 8-K/A of Integrated
Electrical Services, Inc. dated March 17, 1999 and to all references to our Firm
included in this Registration Statement.
KPMG LLP
Lincoln, Nebraska
November 15, 1999
<PAGE> 1
Exhibit 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report, dated
January 25, 1999, on the financial statements of Bachofner Electric, Inc.
included in the current report on Form 8-K of Integrated Electrical Services,
Inc. dated February 3, 1999 and to all references to our Firm included in this
Registration Statement.
Peck & Kopacek, P.C.
Beaverton, Oregon
November 11, 1999
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Integrated Electrical Services:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated March
17, 1998 on the balance sheet of PCX Corporation as of December 31, 1997 and the
related statements of operations, stockholders' equity and cash flows for the
year then ended included in Integrated Electrical Services, Inc.'s current
report on Form 8-K, filed with the Securities and Exchange Commission on
February 4, 1999, and to all references to our firm in this registration
statement.
Arthur Andersen LLP
Raleigh, North Carolina,
November 15, 1999
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report on the financial
statements of Mills Electrical Contractors, Inc. dated September 11, 1998
included in Integrated Electrical Services, Inc.'s Form 8-K filed on May 7, 1999
and to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Houston, Texas
November 15, 1999
<PAGE> 1
EXHIBIT 23.8
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated April
23, 1999, on the financial statements of Tesla Power and Automation, Inc.
included by reference into Integrated Electrical Services, Inc.'s current report
on Form 8-K, dated May 21, 1999, and to all references to our Firm included in
this Registration Statement.
BROCKMANN, ARMOUR & CO. LLP
Denver, Colorado
November 11, 1999
<PAGE> 1
EXHIBIT 23.9
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated April
30, 1999, on the financial statements of Rockwell Electric, Inc. (A California
Corporation), included in the current report on Form 8-K of Integrated
Electrical Services, Inc. dated May 7, 1999 and to all references to our Firm
included in this Registration Statement.
S.J. GALLINA & CO., LLP
Walnut Creek, California
November 11, 1999
<PAGE> 1
EXHIBIT 23.10
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 29, 1999 on the
financial statements of Canova Electrical Contracting, Inc. included in the
current report on Form 8-K of Integrated Electrical Services, Inc. dated May 21,
1999.
LARSON, ALLEN, WEISHAIR & CO., LLP
Minneapolis, Minnesota
November 15, 1999
<PAGE> 1
EXHIBIT 23.11
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated April
29, 1999, on the financial statements of Lineman, Inc. dba California
Communications (a C corporation), included in the current report on Form 8-K of
Integrated Electrical Services, Inc. dated May 7, 1999 and to all references to
our Firm included in this Registration Statement.
S.J. GALLINA & CO., LLP
Sacramento, California
November 11, 1999
<PAGE> 1
EXHIBIT 23.12
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report, dated December 2, 1997, on the financial statements of Davis Electrical
Constructors, Inc. included in the current report on Form 8-K of Integrated
Electrical Services, Inc. dated May 7, 1999 and to all references to our Firm
included in this Registration Statement.
Elliott, Davis & Company, L.L.P.
Greenville, South Carolina
November 15, 1999
<PAGE> 1
EXHIBIT 23.13
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report, dated May 14, 1999, on the financial statements of Delco Electric, Inc.
included in the current report on Form 8-K of Integrated Electrical Services,
Inc. dated June 29, 1999, and to all references to our Firm included in this
Registration Statement.
REZNICK FEDDER & SILVERMAN
Charlotte, North Carolina
November 12, 1999
<PAGE> 1
EXHIBIT 23.14
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report, dated May 13, 1999, on the financial statements of Valentine Electrical,
Inc. included in the current report on Form 8-K of Integrated Electrical
Services, Inc. dated June 29, 1999, and to all references to our Firm included
in this Registration Statement.
REZNICK FEDDER & SILVERMAN
Charlotte, North Carolina
November 12, 1999
<PAGE> 1
EXHIBIT 23.15
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated May 6,
1999 on the financial statements of Putzel Electrical Contractors, Inc. included
in the current report on Form 8-K of Integrated Electrical Services, Inc. dated
December 31, 1998 and to all references to our Firm included in this
Registration Statement.
Davidson and Golden, P.C.
Brentwood, Tennessee
November 15, 1999
<PAGE> 1
EXHIBIT 23.16
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated August
31, 1998 and 1997 on the financial statements of Pan American Electric, Inc.
included in the current report on Form 8-K of Integrated Electrical Services,
Inc. dated June 29, 1999 and to all references to our Firm included in this
Registration Statement.
Cooper, Travis & Company, PLC
Certified Public Accountants
Nashville, Tennessee
November 15, 1999
<PAGE> 1
EXHIBIT 23.17
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated July
14, 1999 on the financial statements of Ernest P. Breaux Electric, Inc. for the
audited period of April 30, 1999 and April 30, 1998 included in the current
report on Form 8-K of Integrated Electrical Services, Inc. dated July 27, 1999
and to all references to our Firm included in this Registration Statement.
Please provide a copy of the financial statement included in your report for our
inspection. We do not consent to the alteration of our audit report in any
material respect.
MIXON, ROY, METZ & MIXON
CERTIFIED PUBLIC ACCOUNTANTS
New Iberia, Louisiana 70560
November 15, 1999
<PAGE> 1
EXHIBIT 23.18
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report, dated August
5, 1999, on the financial statements of Federal Communications Contractors,
Inc., included in the current report on Form 8-K of Integrated Electrical
Services, Inc. dated September 24, 1999 and to all references to our Firm
included in this Registration Statement.
Semple & Cooper, LLP
Phoenix, Arizona
November 15, 1999
<PAGE> 1
EXHIBIT 99.1
INTEGRATED ELECTRICAL SERVICES, INC.
NONEXECUTIVE INCENTIVE COMPENSATION PLAN
SECTION 1. Purpose of the Plan.
The Integrated Electrical Services, Inc. Nonexecutive Incentive
Compensation Plan (the "Plan") is intended to promote the interests of
Integrated Electrical Services, Inc., a Delaware corporation (the "Company"), by
encouraging nonexecutive employees and consultants of the Company, its
subsidiaries and affiliated entities to acquire or increase their equity
interest in the Company and to provide a means whereby employees may develop a
sense of proprietorship and personal involvement in the development and
financial success of the Company, and to encourage them to remain with and
devote their best efforts to the business of the Company thereby advancing the
interests of the Company and its stockholders. The Plan is also contemplated to
enhance the ability of the Company, its subsidiaries and affiliated entities to
attract and retain the services of individuals who are essential for the growth
and profitability of the Company.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
"Affiliate" shall mean (i) any entity that, directly or through one or
more intermediaries, is controlled by the Company and (ii) any entity in which
the Company has a significant equity interest, as determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock, Performance Award, Phantom Shares, Bonus Shares, Other Stock-Based Award
or Cash Award.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Bonus Shares" shall mean an award of Shares granted pursuant to
Section 6(e) of the Plan.
"Cash Award" shall mean an award payable in cash granted pursuant to
Section 6(g) of the Plan.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations thereunder.
<PAGE> 2
"Committee" shall mean the Compensation Committee of the Board.
"Consultant" shall mean any individual who renders consulting services
or advice to the Company or an Affiliate for a fee, including any individual who
is a member of the Board or the Board of Directors of an Affiliate.
"Employee" shall mean any nonexecutive employee of the Company or an
Affiliate or any person who has been extended an offer of employment by the
Company or an Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, with respect to Shares, the closing
price of a Share quoted on the Composite Tape, or if the Shares are not listed
on the New York Stock Exchange, on the principal United States securities
exchange registered under the Exchange Act on which such stock is listed, or if
the Shares are not listed on any such stock exchange, the last sale price, or if
none is reported, the highest closing bid quotation on the National Association
of Securities Dealers, Inc., Automated Quotations System or any successor system
then in use on the Date of Grant, or if none are available on such day, on the
next preceding day for which are available, or if no such quotations are
available, the fair market value on the date of grant of a Share as determined
in good faith by the Board. In the event the Shares are not publicly traded at
the time a determination of its fair market value is required to be made
hereunder, the determination of fair market value shall be made in good faith by
the Committee.
"Non-Qualified Stock Option" or "NQO" shall mean an option granted
under the Plan that is not intended to be an Incentive Stock Option.
"Option" shall mean a Non-Qualified Stock Option.
"Other Stock-Based Award" shall mean an award granted pursuant to
Section 6(h) of the Plan that is not otherwise specifically provided for, the
value of which is based in whole or in part upon the value of a Share.
"Participant" shall mean any Employee or Consultant granted an Award
under the Plan.
"Performance Award" shall mean any right granted under Section 6(d) of
the Plan.
"Person" shall mean individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or political
subdivision thereof or other entity.
"Phantom Shares" shall mean an Award of the right to receive Shares
issued at the end of a Restricted Period which is granted pursuant to Section
6(f) of the Plan.
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<PAGE> 3
"Restricted Period" shall mean the period established by the Committee
with respect to an Award during which the Award either remains subject to
forfeiture or is not exercisable by the Participant.
"Restricted Stock" shall mean any Share, prior to the lapse of
restrictions thereon, granted under Sections 6(c) of the Plan.
"Rule 16b-3" shall mean Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in effect from time
to time.
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
"Shares" or "Common Shares" or "Common Stock" shall mean the common
stock of the Company, $0.01 par value, and such other securities or property as
may become the subject of Awards under the Plan.
"Stock Appreciation Right" or "Right" shall mean any right to receive
the appreciation of Shares granted under Section 6(b) of the Plan.
"Substitute Award" shall mean Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by (i) a company
acquired by the Company or one or more of its Affiliates, or (ii) a company with
which the Company or one or more of its Affiliates combines.
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<PAGE> 4
SECTION 3. Administration.
The Plan shall be administered by the Committee. A majority of the
Committee shall constitute a quorum, and the acts of the members of the
Committee who are present at any meeting thereof at which a quorum is present,
or acts unanimously approved by the members of the Committee in writing, shall
be the acts of the Committee. Subject to the following, the Committee, in its
sole discretion, may delegate any or all of its powers and duties under the
Plan, including the power to grant Awards under the Plan, to the Chief Executive
Officer and the President of the Company, or either of them, or the full Board,
subject to such limitations on such delegated powers and duties as the Committee
may impose. Upon any such delegation all references in the Plan to the
"Committee", other than in Section 7, shall be deemed to include the Chief
Executive Officer and the President, or either of them, or the full board.
Subject to the terms of the Plan and applicable law, and in addition to other
express powers and authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to a Participant; (iii)
determine the number of Shares to be covered by, or with respect to which
payments, rights, or other matters are to be calculated in connection with,
Awards; (iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other property, or
canceled, forfeited, or suspended and the method or methods by which Awards may
be settled, exercised canceled, forfeited, or suspended; (vi) determine whether,
to what extent, and under what circumstances cash, Shares, other securities,
other Awards, other property, and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the holder thereof
or of the Committee; (vii) interpret and administer the Plan and any instrument
or agreement relating to an Award made under the Plan; (viii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it shall
deem appropriate for the proper administration of the Plan; and (ix) make any
other determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Award shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, any
stockholder and any Employee.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section
4(c), (1) the number of Shares with respect to which Awards may be granted under
the Plan shall be 2,000,000. If any Award under either plan is forfeited or
otherwise terminates or is canceled without the delivery of Shares or other
consideration, then the Shares covered by such Award, to the extent of such
forfeiture, termination or cancellation, shall again be Shares with respect to
which Awards may be granted under such plan.
(b) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
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<PAGE> 5
(c) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan, then the Committee shall, in such manner as
it may deem equitable, adjust any or all of (i) the number and type of Shares
(or other securities or property) with respect to which Awards may be granted,
(ii) the number and type of Shares (or other securities or property) subject to
outstanding Awards, and (iii) the grant or exercise price with respect to any
Award or, if deemed appropriate, make provision for a cash payment to the holder
of an outstanding Award; provided, in each case, that with respect to Awards
intended to qualify as performance based compensation under Section 162(m)(4)(C)
of the Code, no such adjustment shall be authorized to the extent that such
authority would cause such Award to fail to so qualify under Section 162(m) of
the Code or any successor provisions thereto; and provided, further, that the
number of Shares subject to any Award denominated in Shares shall always be a
whole number.
SECTION 5. Eligibility.
Any Employee or Consultant shall be eligible to be designated a
Participant. However, no Employee or Consultant may receive Options and/or Stock
Appreciation Rights under the Plan with respect to more than [250,000] Shares
during any calendar year. The maximum amount of compensation that may be paid to
any Participant with respect to any single Award that is not an Option or Stock
Appreciation and which is intended to qualify as "performance based"
compensation under Section 162(m) of the Code in any calendar year shall not
exceed $4.0 million, determined as of the date of grant of such Award.
SECTION 6. Awards.
(a) Options. Subject to the provisions of the Plan, the Committee shall
have the authority to determine the Participants to whom Options shall be
granted, the number of Shares to be covered by each Option, the purchase price
therefor and the conditions and limitations applicable to the exercise of the
Option, including the following terms and conditions and such additional terms
and conditions, as the Committee shall determine, that are not inconsistent with
the provisions of the Plan.
(i) Exercise Price. The purchase price per Share purchasable
under an Option shall be determined by the Committee at the time the
Option is granted.
(ii) Time and Method of Exercise. The Committee shall
determine the time or times at which an Option may be exercised in
whole or in part, and the method or methods by which, and the form or
forms (which may include, without limitation, cash, check
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<PAGE> 6
acceptable to the Company, Shares already-owned for more than six
months, outstanding Awards, Shares that would otherwise be acquired
upon exercise of the Option, a "cashless-broker" exercise (through
procedures approved by the Company), other securities or other
property, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price) in which payment of
the exercise price with respect thereto may be made or deemed to have
been made.
(b) Stock Appreciation Rights. Subject to the provisions of the Plan,
the Committee shall have the authority to determine the Participants to whom
Stock Appreciation Rights shall be granted, the number of Shares to be covered
by each Stock Appreciation Right Award, the grant price thereof and the
conditions and limitations applicable to the exercise thereof. A Stock
Appreciation Right may be granted in tandem with another Award, in addition to
another Award, or freestanding and unrelated to another Award. A Stock
Appreciation Right granted in tandem with or in addition to another Award may be
granted either at the same time as such other Award or at a later time.
(i) Grant Price. The grant price of a Stock Appreciation Right
shall be determined by the Committee on the date of grant.
(ii) Other Terms and Conditions. Subject to the terms of the
Plan and any applicable Award Agreement, the Committee shall determine,
at or after the grant of a Stock Appreciation Right, the term, methods
of exercise, methods of settlement, and any other terms and conditions
of any Stock Appreciation Right. Any such determination by the
Committee may be changed by the Committee from time to time and may
govern the exercise of Stock Appreciation Rights granted or exercised
prior to such determination as well as Stock Appreciation Rights
granted or exercised thereafter. The Committee may impose such
conditions or restrictions on the exercise of any Stock Appreciation
Right as it shall deem appropriate.
(c) Restricted Stock. Subject to the provisions of the Plan, the
Committee shall have the authority to determine the Participants to whom
Restricted Stock shall be granted, the number of Shares of Restricted Stock to
be granted to each such Participant, the duration of the Restricted Period
during which, and the conditions, including performance criteria, if any, under
which, the Restricted Stock may be forfeited to the Company, and the other terms
and conditions of such Awards.
(i) Dividends. Dividends paid on Restricted Stock may be paid
directly to the Participant, may be subject to risk of forfeiture
and/or transfer restrictions during any period established by the
Committee or sequestered and held in a bookkeeping cash account (with
or without interest) or reinvested on an immediate or deferred basis in
additional shares of Common Stock, which credit or shares may be
subject to the same restrictions as the underlying Award or such other
restrictions, all as determined by the Committee in its discretion.
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<PAGE> 7
(ii) Registration. Any Restricted Stock may be evidenced in
such manner as the Committee shall deem appropriate, including, without
limitation, book-entry registration or issuance of a stock certificate
or certificates. In the event any stock certificate is issued in
respect of Restricted Stock granted under the Plan, such certificate
shall be registered in the name of the Participant and shall bear an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock.
(iii) Forfeiture and Restrictions Lapse. Except as otherwise
determined by the Committee or the terms of the Award that granted the
Restricted Stock, upon termination of a Participant's employment (as
determined under criteria established by the Committee) for any reason
during the applicable Restricted Period, all Restricted Stock shall be
forfeited by the Participant and re-acquired by the Company. The
Committee may, when it finds that a waiver would be in the best
interests of the Company and not cause such Award, if it is intended to
qualify as performance based compensation under Section 162(m) of the
Code, to fail to so qualify under Section 162(m) of the Code, waive in
whole or in part any or all remaining restrictions with respect to such
Participant's Restricted Stock. Unrestricted Shares, evidenced in such
manner as the Committee shall deem appropriate, shall be issued to the
holder of Restricted Stock promptly after the applicable restrictions
have lapsed or otherwise been satisfied.
(iv) Transfer Restrictions. During the Restricted Period,
Restricted Stock will be subject to the limitations on transfer as
provided in Section 6(j)(iii).
(d) Performance Awards. The Committee shall have the authority to
determine the Participants who shall receive a Performance Award, which shall be
denominated as a cash amount at the time of grant and confer on the Participant
the right to receive payment of such Award, in whole or in part, upon the
achievement of such performance goals during such performance periods as the
Committee shall establish with respect to the Award.
(i) Terms and Conditions. Subject to the terms of the Plan and
any applicable Award Agreement, the Committee shall determine the
performance goals to be achieved during any performance period, the
length of any performance period, the amount of any Performance Award
and the amount of any payment or transfer to be made pursuant to any
Performance Award.
(ii) Payment of Performance Awards. Performance Awards may be
paid (in cash and/or in Shares, in the sole discretion of the
Committee) in a lump sum or in installments following the close of the
performance period, in accordance with procedures established by the
Committee with respect to such Award.
(e) Bonus Shares. The Committee shall have the authority, in its
discretion, to grant Bonus Shares to Participants. Each Bonus Share shall
constitute a transfer of an unrestricted Share to the Participant, without other
payment therefor, as additional compensation for the Participant's services to
the Company.
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<PAGE> 8
(f) Phantom Shares. The Committee shall have the authority to grant
Awards of Phantom Shares to Participants upon such terms and conditions as the
Committee may determine.
(i) Terms and Conditions. Each Phantom Share Award shall
constitute an agreement by the Company to issue or transfer a specified
number of Shares or pay an amount of cash equal to a specified number
of Shares, or a combination thereof to the Participant in the future,
subject to the fulfillment during the Restricted Period of such
conditions, including performance objectives, if any, as the Committee
may specify at the date of grant. During the Restricted Period, the
Participant shall not have any right to transfer any rights under the
subject Award, shall not have any rights of ownership in the Phantom
Shares and shall not have any right to vote such shares.
(ii) Dividends. Any Phantom Share award may provide that any
or all dividends or other distributions paid on Shares during the
Restricted Period be credited in a cash bookkeeping account (without
interest) or that equivalent additional Phantom Shares be awarded,
which account or shares may be subject to the same restrictions as the
underlying Award or such other restrictions as the Committee may
determine.
(g) Cash Awards. The Committee shall have the authority to determine
the Participants to whom Cash Awards shall be granted, the amount, and the terms
or conditions, if any, as additional compensation for the Participant's services
to the Company or its Affiliates. A Cash Award may be granted (simultaneously or
subsequently) separately or in tandem with another Award and may entitle a
Participant to receive a specified amount of cash from the Company upon such
other Award becoming taxable to the Participant, which cash amount may be based
on a formula relating to the anticipated taxable income associated with such
other Award and the payment of the Cash Award.
(h) Other Stock-Based Awards. The Committee may also grant to
Participants an Other Stock-Based Award, which shall consist of a right which is
an Award denominated or payable in, valued in whole or in part by reference to,
or otherwise based on or related to, Shares as is deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms of the Plan, the
Committee shall determine the terms and conditions of any such Other Stock-Based
Award.
(i) Replacement Grants. Awards may be granted from time to time in
substitution for similar awards held by employees of other corporations who
become Participants as the result of a merger or consolidation of the employing
corporation with the Company or any subsidiary, or the acquisition by the
Company or any subsidiary of the assets of the employing corporation, or the
acquisition by the Company or any subsidiary or an affiliate of stock of the
employing corporation. The terms and conditions of substitute Awards granted may
vary from the terms and conditions set forth in the Plan, to the extent the
Committee, at the time of grant, deems it appropriate to conform, in whole or in
part, to the provisions of awards in substitution for which they are granted.
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<PAGE> 9
(j) General.
(i) Awards May Be Granted Separately or Together. Awards may,
in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for any other Award
granted under the Plan or any award granted under any other plan of the
Company or any Affiliate. Awards granted in addition to or in tandem
with other Awards or awards granted under any other plan of the Company
or any Affiliate may be granted either at the same time as or at a
different time from the grant of such other Awards or awards.
(ii) Forms of Payment by Company Under Awards. Subject to the
terms of the Plan and of any applicable Award Agreement, payments or
transfers to be made by the Company or an Affiliate upon the grant,
exercise or payment of an Award may be made in such form or forms as
the Committee shall determine, including, without limitation, cash,
Shares, other securities, other Awards or other property, or any
combination thereof, and may be made in a single payment or transfer,
in installments, or on a deferred basis, in each case in accordance
with rules and procedures established by the Committee. Such rules and
procedures may include, without limitation, provisions for the payment
or crediting of reasonable interest on installment or deferred
payments.
(iii) Limits on Transfer of Awards.
(A) Except as provided in (C) below, each Award, and
each right under any Award, shall be exercisable only by the
Participant during the Participant's lifetime, or, if
permissible under applicable law, by the Participant's
guardian or legal representative as determined by the
Committee.
(B) Except as provided in (C) below, no Award and no
right under any such Award may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered
by a Participant otherwise than by will or by the laws of
descent and distribution (or, in the case of Restricted Stock,
to the Company) and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be
void and unenforceable against the Company or any Affiliate.
(C) Notwithstanding anything in the Plan to the
contrary, to the extent specifically provided by the Committee
with respect to a grant, a Nonqualified Stock Option may be
transferred to immediate family members or related family
trusts, limited partnerships or similar entities or on such
terms and conditions as the Committee may establish.
(iv) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, that in no
event shall the term of any Award exceed a period of 10 years from the
date of its grant.
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<PAGE> 10
(v) Share Certificates. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange upon which such Shares or
other securities are then listed, and any applicable Federal or state
laws, and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such restrictions.
(vi) Consideration for Grants. Awards may be granted for no
cash consideration or for such consideration as the Committee
determines including, without limitation, such minimal cash
consideration as may be required by applicable law.
(vii) Delivery of Shares or other Securities and Payment by
Participant of Consideration. No Shares or other securities shall be
delivered pursuant to any Award until payment in full of any amount
required to be paid pursuant to the Plan or the applicable Award
Agreement (including, without limitation, any exercise price, tax
payment or tax withholding) is received by the Company. Such payment
may be made by such method or methods and in such form or forms as the
Committee shall determine, including, without limitation, cash, Shares,
other securities, other Awards or other property, withholding of
Shares, cashless exercise with simultaneous sale, or any combination
thereof; provided that the combined value, as determined by the
Committee, of all cash and cash equivalents and the Fair Market Value
of any such Shares or other property so tendered to the Company, as of
the date of such tender, is at least equal to the full amount required
to be paid pursuant to the Plan or the applicable Award Agreement to
the Company.
(viii) Performance Criteria and Payment Limits. The Committee
shall establish performance goals applicable to those Awards (other
than Options and Rights) the payment of which is intended by the
Committee to qualify as "performance-based compensation" as described
in Section 162(m)(4)(C) of the Code. Until changed by the Committee,
the performance goals shall be based upon the attainment of such target
levels of net income, cash flows, return on equity, profit margin or
sales, stock price, and/or earnings per share as may be specified by
the Committee. Which factor or factors to be used with respect to any
grant, and the weight to be accorded thereto if more than one factor is
used, shall be determined by the Committee at the time of grant. With
respect to any Restricted Stock Award, Phantom Stock Award, or Cash
Award granted in tandem with, and expressed as a percentage of, a
Share-denominated Award, which is intended to qualify as
"performance-based compensation", the maximum payment to any
Participant with respect to such Award in any calendar year shall be an
amount (in cash and/or in Shares) equal to the Fair Market Value of the
number of Shares subject to such Award.
SECTION 7. Amendment and Termination.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award Agreement or in the Plan:
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<PAGE> 11
(i) Amendments to the Plan. The Board or the Committee may
amend, alter, suspend, discontinue, or terminate the Plan without the
consent of any stockholder, Participant, other holder or beneficiary of
an Award, or other Person.
(ii) Amendments to Awards. The Committee may waive any
conditions or rights under, amend any terms of, or alter any Award
theretofore granted, provided no change, other than pursuant to Section
7(iii), in any Award shall reduce the benefit to Participant without
the consent of such Participant. Notwithstanding the foregoing, with
respect to any Award intended to qualify as performance-based
compensation under Section 162(m) of the Code, no adjustment shall be
authorized to the extent such adjustment would cause the Award to fail
to so qualify.
(iii) Adjustment of Awards Upon the Occurrence of Certain
Unusual or Nonrecurring Events. The Committee is hereby authorized to
make adjustments in the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events
(including, without limitation, the events described in Section 4(c) of
the Plan) affecting the Company, any Affiliate, or the financial
statements of the Company or any Affiliate, or of changes in applicable
laws, regulations, or accounting principles, whenever the Committee
determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan. Notwithstanding the foregoing,
with respect to any Award intended to qualify as performance-based
compensation under Section 162(m) of the Code, no adjustment shall be
authorized to the extent such adjustment would cause the Award to fail
to so qualify.
SECTION 8. Change in Control.
Notwithstanding any other provision of this Plan to the contrary, in
the event of a Change in Control of the Company all outstanding Awards
automatically shall become fully vested immediately prior to such Change in
Control (or such earlier time as set by the Committee), all restrictions, if
any, with respect to such Awards shall lapse, and all performance criteria, if
any, with respect to such Awards shall be deemed to have been met in full. For
purposes of this Plan, a "Change in Control" shall be deemed to occur:
(i) if any person, entity or group (as such terms are used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Act"), other than the Company or its subsidiaries or an
employee benefit plan of the Company or its subsidiaries, acquires,
directly or indirectly, the beneficial ownership (as defined in Section
13(d) of the Act) of any voting security of the Company and immediately
after such acquisition such person is, directly or indirectly, the
beneficial owner of voting securities representing 20% or more of the
total voting power of all of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors;
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(ii) upon the first purchase of the Company's common stock
pursuant to a tender or exchange offer (other than a tender or exchange
offer made by the Company);
(iii) if the stockholders of the Company shall approve a merger,
consolidation, recapitalization or reorganization of the Company, or a
reverse stock split of outstanding voting securities, or consummation of
any such transaction if stockholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total
voting power represented by the voting securities of the surviving
entity outstanding immediately after such transaction being beneficially
owned by the holders of all of the outstanding voting securities of the
Company immediately prior to the transactions with the voting power of
each such continuing holder relative to other such continuing holders
not substantially altered in the transaction;
(iv) if the stockholders of the Company shall approve a plan of
complete liquidation or dissolution of the Company or an agreement for
the sale or disposition by the Company of all or substantially all of
the Company's assets; or
(v) if, at any time during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof, unless
the election or nomination for the election by the Company's
stockholders of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
SECTION 9. General Provisions.
(a) No Rights to Awards. No Employee, Participant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with respect
to each recipient.
(b) Withholding. The Company or any Affiliate is authorized to withhold
from any Award, from any payment due or transfer made under any Award or under
the Plan or from any compensation or other amount owing to a Participant the
amount (in cash, Shares, other securities, Shares that would otherwise be issued
pursuant to such Award, other Awards or other property) of any applicable taxes
payable in respect of an Award, its exercise, the lapse of restrictions thereon,
or any payment or transfer under an Award or under the Plan and to take such
other action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes. In addition, the Committee may
provide, in an Award Agreement, that the Participant may direct the Company to
satisfy such Participant's tax obligation through the withholding of Shares
otherwise to be acquired upon the exercise or payment of such Award.
(c) No Right to Employment. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any
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liability or any claim under the Plan, unless otherwise expressly provided in
the Plan or in any Award Agreement.
(d) Governing Law. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware and applicable Federal law.
(e) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(f) Other Laws. The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole discretion, it
determines that the issuance of transfer or such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary.
(g) No Trust or Fund Created. Neither the Plan nor the Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any general unsecured creditor of the
Company or any Affiliate.
(h) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(j) Parachute Tax Gross-Up. To the extent that the grant, payment, or
acceleration of vesting or payment, whether in cash or stock, of any Award made
to a Participant under the Plan (a "Benefit") is subject to a golden parachute
excise tax under Section 4999(a) of the Code (a "Parachute Tax"), the Company
shall pay such person an amount of cash (the "Gross-up Amount") such that the
"net" Benefit received by the person under this Plan, after paying all
applicable Parachute Taxes (including those on the Gross-up Amount) and any
federal or state taxes on
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the Gross-up Amount, shall be equal to the Benefit that such person would have
received if such Parachute Tax had not been applicable.
SECTION 10. Effective Date of the Plan.
The Plan shall be effective as of the date of its original approval by
the Board.
SECTION 11. Term of the Plan.
No Award shall be granted under the Plan after the 10th anniversary of
the original approval date of the Plan. However, unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award granted
prior to such termination, and the authority of the Board or the Committee to
amend, alter, adjust, suspend, discontinue, or terminate any such Award or to
waive any conditions or rights under such Award, shall extend beyond such
termination date.
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