<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 2000.
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.
(FULL 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.
EMPLOYEE STOCK PURCHASE 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)
----------------------
COPY TO:
DAVID P. OELMAN
ANDREWS & KURTH, L.L.P.
600 TRAVIS STREET, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4332
(FAX) (713) 220-4285
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
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 1,000,000 Shares $6.00 $6,000,000 $1,584
===========================================================================================================
</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 February 29, 2000.
================================================================================
<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, 1999.
(b) The Company's Quarterly Report on Form 10-Q for the period ended
December 31, 1999.
(c) 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 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,
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<PAGE> 3
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 Seventh of the Company's Amended and Restated Certificate of
Incorporation states that:
The Corporation shall, to the maximum extent permitted from time to time
under the General Corporation Law of the State of Delaware, indemnify and upon
request shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
suit, proceeding or claim, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has agreed to be a
director or officer of the Corporation, or while a director or officer 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, including service with respect to employee benefit plans, against
expenses (including attorneys' fees and expenses), judgments, fines, penalties
and amounts paid in settlement or incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was or has agreed to be a director or officer of the Corporation,
or while a director or officer 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, including service with
respect to employee benefit plans, against expenses (including attorneys' fees
and expenses), judgments, fines, penalties and amounts paid in settlement or
incurred in connection with the investigation, preparation to defend or defense
of such action, suit, proceeding, claim or counterclaim initiated by or on
behalf of such person.
Such indemnification shall not be exclusive of other indemnification rights
arising under any bylaw, agreement, vote of directors or stockholders or
otherwise and shall inure to the benefit of the heirs and legal representatives
of such person. Any repeal or modification of the foregoing provisions of this
Section 7(c) shall be prospective only, and shall not adversely affect any right
or protection of a director or officer of the Corporation existing at the time
of such repeal or modification. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (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 General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. If the General Corporation
Law of the State of Delaware 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 General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification
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<PAGE> 4
of this Section by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal liability of
a director of the Corporation existing at the time of such repeal or
modification.
In addition, Article IX 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 certain of its
executive officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this Registration
Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
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 the Company's Form
10-K for the year ended September 30, 1999 filed with the SEC on
December 16, 1999).
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.
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. Employee Stock Purchase Plan
- ----------------------------
*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;
(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
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<PAGE> 5
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.
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<PAGE> 6
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 10, 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
INDICATED ON NOVEMBER 10, 1999, EXCEPT FOR MR. FLORANCE AND MR. DEPASCAL WHO
SIGNED ON MARCH 1, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ C. BYRON SNYDER
- -------------------------------- Chairman of the Board of Directors
C. Byron Snyder
/s/ JON POLLOCK
- -------------------------------- Vice Chairman of the Board of Directors
Jon Pollock
/s/ JIM P. WISE Chief Executive Officer and Director
- -------------------------------- (Principal Executive Officer)
Jim P. Wise
/s/ JERRY M. MILLS
- -------------------------------- Director
Jerry M. Mills
/s/ BEN L. MUELLER Senior Vice President, Chief Operating
- -------------------------------- Officer and Director
Ben L. Mueller
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
/s/ STANLEY H. FLORANCE
- -------------------------------- Senior Vice President, Chief Financial
Stanley H. Florance Officer (Principal Financial Officer)
/s/ RICHARD MUTH
- -------------------------------- Director
Richard Muth
/s/ ALAN R. SIELBECK
- -------------------------------- Director
Alan R. Sielbeck
/s/ ROBERT STALVEY
- -------------------------------- Director
Robert Stalvey
/s/ RICHARD L. TUCKER
- -------------------------------- Director
Richard L. Tucker
/s/ BOB WEIK
- -------------------------------- Director
Bob Weik
- -------------------------------- Director
Donald Paul Hodel
/s/ NEIL J. DEPASCAL, JR.
- -------------------------------- Vice President, Chief Accounting
Neil J. DePascal, Jr. Officer (Principal Accounting Officer)
</TABLE>
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<PAGE> 8
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 the Company's Form
10-K for the year ended September 30, 1999 filed with the SEC on
December 16, 1999).
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.
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. Employee Stock Purchase Plan
</TABLE>
- ----------------------------
*filed herewith
II-7
<PAGE> 1
[ANDREWS & KURTH L.L.P. LETTERHEAD]
EXHIBIT 5.1
March 1, 2000
Board of Directors
Integrated Electrical Services, Inc.
515 Post Oak Boulevard, Suite 450
Houston, Texas 77027
Gentlemen:
We have acted as counsel to Integrated Electrical Services, Inc. (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 1,000,000 shares (the
"Shares") of the Company's common stock, $0.01 par value, pursuant to the
Company's Employee Stock Purchase 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, be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
2475/2397/2700
<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 9, 1999
included in Integrated Electrical Services, Inc.'s Annual Report on Form 10-K
for the year ended September 30, 1999, and to all references to our Firm
included in this Form S-8 Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Houston, Texas
March 1, 2000
<PAGE> 1
EXHIBIT 99.1
INTEGRATED ELECTRICAL SERVICES, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
1 Definitions ................................... 1
2 Purpose of the Plan ........................... 3
3 Shares Reserved for the Plan .................. 3
4 Administration of the Plan .................... 3
5 Eligibility to Participate in the Plan ........ 4
6 Option Periods ................................ 4
7 Election to Participate in the Plan ........... 4
8 Payroll Deductions ............................ 4
9 Grant of Options .............................. 5
10 Exercise of Options ........................... 5
11 Withdrawal; Termination of Employment ......... 6
12 Transferability ............................... 7
13 Adjustments Upon Changes in Capitalization .... 7
14 Amendment of the Plan ......................... 7
15 Termination of the Plan ....................... 8
16 Notices ....................................... 8
17 Stockholder Approval .......................... 8
18 Conditions Upon Issuance of Shares ............ 8
</TABLE>
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INTEGRATED ELECTRICAL SERVICES, INC.
EMPLOYEE STOCK PURCHASE PLAN
Integrated Electrical Services, Inc. hereby establishes the Integrated
Electrical Services, Inc. Employee Stock Purchase Plan (the "Plan"), effective
as of April 1, 2000. The terms of the Plan are as set forth below:
1. Definitions.
As used in the Plan the following terms shall have the meanings set
forth below:
(a) "Account" means a ledger account established by the Company for a
Participant and credited with the Participant's contributions under the
Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the committee appointed by the Board to
administer the Plan.
(e) "Company" means Integrated Electrical Services, Inc., a Delaware
corporation, or any successor.
(f) "Company Stock" means the common stock, $0.01 par value, of the
Company.
(g) "Continuous Employment" means the absence of any interruption or
termination of service as an Eligible Employee. However, Continuous
Employment shall not be considered interrupted in the case of an authorized
leave of absence, provided that such leave is for a period of not more than
90 days or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(h) "Eligible Compensation" means, with respect to a Participant, the
total W-2 compensation paid to the Participant by the Participating
Companies during the Option Period, including any elective salary deferral
contributions made therefrom by the Participant pursuant to Code Sections
125, 129 or 401(k), but excluding any severance or retirement pay or
similar pay or pay received after the Participant ceases to be an employee.
<PAGE> 4
(i) "Eligible Employee" means an employee of the Participating
Companies who is customarily employed for at least 20 hours per week and
more than five months in a calendar year.
(j) "Enrollment Date" means the first day of each Option Period.
(k) "Exercise Date" means the last day of each Option Period.
(l) "Exercise Price" means the price per share of the Company Stock
offered in a given Option Period, which shall be 85% of the Fair Market
Value of a share of the Company Stock on the Enrollment Date or the
Exercise Date for such Option Period, whichever is lower.
(m) "Fair Market Value" means, with respect to shares of Company Stock,
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
applicable date, 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 applicable date 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.
(n) "Option Period" means the period April 1, 2000 through December 31,
2000 and thereafter the calendar year; provided, however, upon termination
of the Plan other than on a December 31, the final Option Period shall be
the shorter period ending on such termination date.
(o) "Participant" means an Eligible Employee who has elected to
participate in the Plan by filing an enrollment agreement with the Company
as provided in Section 7 below.
(p) "Participating Companies" means the Company and each present and
future Subsidiary which the Committee, in its sole discretion, designates
as a Participating Company and which Subsidiary has adopted the Plan.
(q) "Subsidiary" means any corporation, domestic or foreign, of which
the Company owns, directly or indirectly, not less than 50% of the total
combined voting power of all classes of stock or other equity interests and
that otherwise qualifies as a "subsidiary corporation" within the meaning
of Section 424(f) of the Code or any successor thereto, and shall include
any limited liability company or partnership which is 100% owned directly
or
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<PAGE> 5
indirectly by the Company and either is disregarded as an entity for
federal tax purposes or has elected to be taxed as a corporation.
2. Purpose of the Plan.
The purpose of the Plan is to provide an incentive for present and
future Eligible Employees of the Participating Companies to acquire a
proprietary interest (or increase an existing proprietary interest) in the
Company through the purchase of Company Stock. It is the intention of the
Company that the Plan qualify as an "employee stock purchase plan" under Section
423 of the Code. Accordingly, the provisions of the Plan shall be administered,
interpreted and construed in a manner consistent with the requirements of that
section of the Code.
3. Shares Reserved for the Plan.
There shall be reserved for issuance and purchase by Participants under
the Plan an aggregate of 1,000,000 shares of Company Stock, subject to
adjustment as provided in Section 13 below. Shares of Company Stock subject to
the Plan may be newly issued shares, treasury shares, shares purchased in the
open market or any combination of the foregoing, as determined by the Board in
its discretion. If and to the extent that any option to purchase shares of
Company Stock shall not be exercised for any reason or if such right to purchase
shares shall terminate as provided herein, the shares that have not been so
purchased hereunder shall again become available for the purposes of the Plan
unless the Plan shall have been terminated.
4. Administration of the Plan.
(a) The Plan shall be administered by a Committee appointed by, and
which shall serve at the pleasure of, the Board. The Committee shall have the
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to the administration of the Plan, to correct any defect or
rectify any omission in the Plan or to reconcile any inconsistency in the Plan
or any option, and to make all other determinations necessary or advisable for
the administration of the Plan, all of which actions and determinations shall be
final, conclusive and binding on all persons. The act or determination of a
majority of the members of the Committee shall be deemed to be the act or
determination of the Committee.
(b) The Committee may request advice or assistance or employ
such other persons as it in its discretion deems necessary or appropriate for
the proper administration of the Plan.
(c) All Eligible Employees granted options under the Plan shall have
the same rights and privileges; however, the Plan will not fail to satisfy this
requirement merely because the amount of Company Stock which may be purchased by
any Eligible Employee is determined on the basis of a uniform relationship to
the Eligible Compensation of Eligible Employees.
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<PAGE> 6
(d) All expenses of administering the Plan shall be paid by the
Participating Companies.
(e) A separate Account will be maintained for each Participant in the
Plan. Statements of Accounts will be given to Participants promptly following
each Exercise Date, which statements will set forth the amounts of payroll
deductions, the per share Exercise Price, the number of shares purchased and the
remaining cash balance in the Participant's Account, if any.
5. Eligibility to Participate in the Plan.
Each Eligible Employee who is employed by a Participating Company on an
Enrollment Date and has completed a period of Continuous Employment of at least
90 days as of such Enrollment Date shall be eligible to participate in the Plan
for the Option Period beginning on that Enrollment Date subject to the further
provisions of the Plan.
6. Option Periods.
The Plan shall consist of consecutive Option Periods beginning on the
Plan's effective date and continuing until the Plan is terminated.
7. Election to Participate in the Plan.
(a) Each Eligible Employee who satisfies the eligibility requirements
as of the Enrollment Date for the applicable Option Period may elect to
participate in the Plan for such Option Period by completing an enrollment
agreement in the form (written or electronic) provided by the Company (or its
designee) and filing such enrollment agreement with the Company (or its
designee) prior to the applicable Enrollment Date.
(b) Payroll deductions for a Participant shall commence on the first
payroll date following the Participant's Enrollment Date and shall continue
until (i) changed or terminated by the Participant as provided below, (ii) the
termination of the Plan, or (iii) the Participant ceases to be an Eligible
Employee, whichever occurs first.
(c) A Participant's election shall remain in effect for each successive
Option Period unless the Participant changes or terminates such election prior
to the beginning of the Option Period in accordance with the procedures
established by the Committee.
8. Payroll Deductions.
(a) All Participant contributions to the Plan shall be made by payroll
deductions only. At the time a Participant files the enrollment agreement with
respect to an Option Period, the Participant shall authorize payroll deductions
to be made on each payroll date during the Option Period in an amount equal to a
designated number of whole dollars per week, but not less than $5.00 per week,
in the case of a Participant who is paid weekly, $10 per bi-weekly pay period,
in the case
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of a Participant who is paid bi-weekly, or $11.00 per semi-monthly pay period,
in the case of a Participant who is paid semi-monthly; provided, however, with
respect to a Participant making a minimum contribution each pay period, the last
payroll deduction in the Option Period shall be reduced, if and to the extent as
necessary, so that the maximum aggregate amount of minimum contributions that
may be made for that Option Period is the same for all Participants, whether on
a weekly, bi-weekly or semi-monthly pay period. Subject to the limitation set
forth in Section 9(b), there shall be no maximum amount of payroll deduction
which a Participant may authorize each periodic pay period. Such authorization
shall be in writing and on such forms as provided by the Committee.
(b) All payroll deductions made for a Participant may be deposited in
the Company's general corporate account and shall be credited to the
Participant's Account under the Plan. No interest shall accrue or be credited
with respect to the payroll deductions of a Participant under the Plan. A
Participant may not make any additional payments into such Account. Pending
application of the Accounts, the Company may, but shall not be obligated to,
segregate the payroll deductions.
(c) Except as provided in Section 11, a Participant may not change his
current contribution election during an Option Period.
9. Grant of Options.
(a) Subject to the limitations set forth in Sections 3 and 9(b) hereof,
each Participant shall be granted an option on the Enrollment Date to purchase
on the Exercise Date for such Option Period (at the Exercise Price for such
Option Period) a number of whole shares of the Company Stock determined by
dividing such Participant's payroll deductions accumulated during the Option
Period by the Exercise Price for such Option Period.
(b) Notwithstanding any provision of the Plan to the contrary, no
Participant shall be granted an option under the Plan (i) if, immediately after
the grant, such Participant (or any other person whose stock would be attributed
to such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company or of any
Subsidiary of the Company, or (ii) which permits such Participant's rights to
purchase stock under all employee stock purchase plans of the Company and its
Subsidiaries to accrue at a rate which exceeds $25,000 of the Fair Market Value
of such stock (determined at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
10. Exercise of Options.
Unless a Participant withdraws or is deemed to have withdrawn from the
Plan during an Option Period as provided in Section 11, the Participant's option
for the purchase of shares for an Option Period will be exercised automatically
on the Exercise Date for such Option Period, and the maximum number of whole
shares subject to the option will be purchased for the Participant at
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the applicable Exercise Price with the accumulated payroll deductions then
credited to the Participant's Account. The certificates for such purchased
shares shall be issued by the Company as soon as reasonably practical following
the Exercise Date. Any amounts remaining credited to an Account after being
applied as provided in the preceding sentence shall continue to be credited to
the Account for the next Option Period, unless the Participant requests in
writing the return of such remainder prior to the beginning of such Option
Period.
11. Withdrawal; Termination of Employment.
(a) A Participant may withdraw all, but not less than all, of the
payroll deductions credited to the Participant's Account under the Plan at any
time prior to an Exercise Date by giving written notice to the Company. All of
the Participant's payroll deductions credited to the Participant's Account will
be paid to him promptly after receipt of the Participant's notice of withdrawal,
the Participant's participation in the Plan will be automatically terminated,
and no further payroll deductions for the purchase of shares will be made.
Payroll deductions will not resume on behalf of a Participant who has withdrawn
from the Plan unless written notice is delivered to the Company within the
enrollment period preceding the commencement of a new Option Period directing
the Company to resume payroll deductions and the former Participant is at that
time an Eligible Employee.
(b) In the event a Participant ceases to be an Eligible Employee prior
to the Exercise Date of an Option Period for any reason other than retirement on
or after reaching age 65, disability under a Company long-term disability plan,
Social Security or other determination made by the Committee on a
nondiscriminatory basis, or death, the payroll deductions credited to the
Participant's Account will be automatically returned to the Participant and the
Participant's options to purchase shares under the Plan will be automatically
terminated for such Option Period.
(c) In the event a Participant ceases to be an Eligible Employee during
an Option Period due to his retirement on or after reaching age 65, his
disability under a Company long-term disability plan, Social Security or other
determination made by the Committee on a nondiscriminatory basis, or his death,
no further contributions may be made to the Participant's Account, and the
balance of his Account at such time shall be applied to exercise his options at
the end of that Option Period as provided in Section 10.
(d) A Participant's withdrawal during an Option Period will not affect
the Participant's eligibility to participate in a succeeding Option Period.
12. Transferability.
Options to purchase Company Stock granted under the Plan are not
transferable by a Participant (other than by will or the laws of descent and
distribution) and are exercisable only by the Participant.
13. Adjustments Upon Changes in Capitalization.
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(a) If the outstanding shares of Company Stock are increased or
decreased, or are changed into or are exchanged for a different number or kind
of shares, as a result of one or more reorganizations, restructurings,
recapitalizations, reclassifications, stock splits, reverse stock splits, stock
dividends or the like, upon authorization of the Committee, appropriate
adjustments may be made in the number and/or kind of shares, and the per share
option price thereof, which may be issued in the aggregate and to any
Participant upon exercise of options granted under the Plan.
(b) In the event of the proposed dissolution or liquidation of the
Company, each Option Period will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Committee. In the
event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, each
option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the
Participant shall have the right to exercise the option as to all of the
optioned stock, including shares as to which the option would not otherwise be
exercisable. If the Committee makes an option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify the Participant that the option shall be fully
exercisable for a stated period, which shall not be less than 10 days from the
date of such notice, and the option will terminate upon the expiration of such
period.
(c) In all cases, the Committee shall have full discretion to exercise
any of the powers and authority provided under this Section 13, and the
Committee's actions hereunder shall be final and binding on all Participants. No
fractional shares of stock shall be issued under the Plan pursuant to any
adjustment authorized under the provisions of this Section 13.
14. Amendment of the Plan.
The Board or the Committee may at any time, or from time to time, amend
the Plan in any respect; provided, however, that the Plan may not be amended in
any way that will cause rights issued under the Plan to fail to meet the
requirements for employee stock purchase plans as defined in Section 423 of the
Code or any successor thereto, including, without limitation, stockholder
approval if required.
15. Termination of the Plan.
The Plan and all rights of Eligible Employees hereunder shall
terminate:
(a) on the Exercise Date that Participants become entitled to purchase
a number of shares greater than the number of reserved shares remaining
available for purchase under the Plan; or
(b) at any time, at the discretion of the Board.
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In the event that the Plan terminates under circumstances described in
Section 15(a) above, reserved shares remaining as of the termination date shall
be sold to Participants on a pro rata basis based on their Account balances and
any amounts remaining in their Accounts returned to the Participants.
16. Notices.
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
17. Stockholder Approval.
The Plan shall be subject to approval by the stockholders of the
Company within twelve months after the date the Plan is adopted by the Board. If
such stockholder approval is not obtained at the 2000 annual meeting of
stockholders of the Company, the Plan shall not become effective.
18. Conditions Upon Issuance of Shares.
(a) The Plan, the grant and exercise of options to purchase shares of
Company Stock under the Plan, and the Company's obligation to sell and deliver
shares upon the exercise of options to purchase shares shall be subject to all
applicable federal, state and foreign laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may, in the opinion of
counsel for the Company, be required. In the event the Company is required to
obtain from any commission or agency authority to issue any stock certificate,
the inability of the Company to obtain from any such commission or agency
authority that counsel for the Company deems necessary for the lawful issuance
of any such certificate will relieve the Company from liability to any
Participant, except to return to him the amount of the balance in his account.
(b) The Company may make such provisions as it deems appropriate for
withholding of amounts that the Company determines it is required to withhold
pursuant to applicable tax laws in connection with the purchase or sale by a
Participant of any Company Stock acquired pursuant to the Plan. The Company may
require a Participant to satisfy any relevant tax requirements before
authorizing any issuance of Company Stock to such Participant.
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