<PAGE>
As filed with the Securities and Exchange Commission on November 10, 1998
Registration No. 333-57365
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
-----------
CAPROCK COMMUNICATIONS CORP.
(Exact name of Registrant as specified in its charter)
TEXAS 75-2765572
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
TWO GALLERIA TOWER, SUITE 1925
13455 NOEL ROAD
DALLAS, TEXAS 75240-6638
(Address of Registrant's principal executive offices)
-----------
CAPROCK COMMUNICATIONS CORP. NONQUALIFIED STOCK OPTION PLAN
IWL COMMUNICATIONS, INCORPORATED EMPLOYEE INCENTIVE STOCK OPTION PLAN
IWL COMMUNICATIONS, INCORPORATED 1997 STOCK OPTION PLAN
IWL COMMUNICATIONS, INCORPORATED 1997 DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
MR. JERE W. THOMPSON, JR.
CHIEF EXECUTIVE OFFICER
CAPROCK COMMUNICATIONS CORP.
TWO GALLERIA TOWER, SUITE 1925
13455 NOEL ROAD
DALLAS, TEXAS 75240-6638
(Name and address of agent for service)
(972) 982-9500
(Telephone number, including area code, of agent for service)
-----------
*This Post-Effective Amendment No. 1 covers 622,931 shares of the
Registrant's common stock, par value $.01 per share (the "Common Stock"),
that were originally registered on its Registration Statement on Form S-4
(Registration No. 333-57365), which was declared effective on July 20, 1998
(as amended, the "Initial Form S-4 Registration Statement"). This
Post-Effective Amendment No. 1 is an amendment to the Initial Form S-4
Registration Statement. Of the 622,931 shares originally registered on the
Initial Form S-4 Registration Statement, 289,073 shares are issuable under
the IWL Communications, Incorporated Employee Incentive Stock Option Plan,
the IWL Communications, Incorporated 1997 Stock Option Plan and the IWL
Communications, Incorporated 1997 Director Stock Option Plan (collectively,
the "IWL Plans"), and 333,858 shares are issuable under the CapRock
Communications Corp. Nonqualified Stock Option Plan (the "Telecommunications
Plan" and, collectively with the IWL Plans, the "Plans"). See "Introductory
Statement." The registration fee in respect of the 622,931 shares of Common
Stock originally registered on the Initial Form S-4 Registration Statement
was paid at the time of the original filing of the Initial Form S-4
Registration Statement.
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<PAGE>
INTRODUCTORY STATEMENT
The Registrant hereunder, CapRock Communications Corp., a Texas
corporation (the "Company"), was formed for the purpose of becoming the
holding company for CapRock Telecommunications Corp., a Texas corporation
formerly known as CapRock Communications Corp. ("Telecommunications"),
CapRock Fiber Network, Ltd., a Texas limited partnership (the "Partnership"),
and IWL Communications, Incorporated, a Texas corporation ("IWL"), pursuant
to the business combination of those companies. On February 16, 1998,
Telecommunications, the Partnership, IWL, the Company and certain other
parties entered into an Agreement and Plan of Merger and Plan of Exchange, as
amended (as so amended, the "Merger Agreement"), providing for the mergers
(the "Mergers") of newly-formed subsidiaries of the Company with and into IWL
and Telecommunications, with IWL and Telecommunications surviving such
Mergers as wholly owned subsidiaries of the Company, and the exchange (the
"Interest Exchange") of the general partnership interest and all of the
limited partnership interests (collectively, the "Partnership Interests") in
the Partnership validly tendered to and accepted by the Company for shares of
the Company's Common Stock. On August 26, 1998, the Company announced that
it had completed the Mergers and the Interest Exchange pursuant to the Merger
Agreement. At the effective time of the Mergers and the Interest Exchange,
all options to acquire shares of the common stock of IWL under the IWL Plans
and all options to acquire shares of the common stock of Telecommunications
under the Telecommunications Plan, respectively, were converted into options
to acquire shares of Common Stock of the Company in accordance with the terms
and conditions of the Merger Agreement. Prior to the effective time, the
shares of IWL common stock to be issued under the IWL Plans were registered
by IWL under a Registration Statement on Form S-8 (Registration No.
333-32559), while the shares of Telecommunications common stock to be issued
under the Telecommunications Plan were not so registered.
Accordingly, the Company hereby amends its Initial Form S-4
Registration Statement (Registration No. 333-57365), which has been declared
effective, by filing this Post-Effective Amendment No. 1 (which is being
filed on Form S-8) relating to an aggregate of 622,931 shares of Common Stock
issuable upon the exercise of options granted under the Plans. This
Post-Effective Amendment No. 1 relates only to the Common Stock of the
Company issuable under the Plans (and does not relate to any other shares of
Common Stock registered under the Initial Form S-4 Registration Statement).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The document(s) containing the information concerning the Plans
required by Item 1 of Form S-8 and the statement of availability of
registrant information and information relating to the Plans and other
information required by Item 2 of Form S-8 have previously been, or will be,
sent or given to the employees and/or directors of the Registrant and its
subsidiaries, as applicable, as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance
with Rule 428 and the requirements of Part I of Form S-8, such documents are
not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. The Registrant
will maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the Registrant will furnish to the Commission or its
staff a copy or copies of any or all of the documents included in such file.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which the Company has previously filed with
the Commission pursuant to the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated in this
Registration Statement by reference and shall be deemed to be a part hereof:
(a) The Registration Statement (Registration No. 333-64699) on Form
S-4 of the Company, as amended (the "Exchange Offer Form S-4
Registration Statement"), first filed with the Commission on
September 29, 1998 pursuant to the Securities Act, including the
Prospectus dated October 13, 1998 included therein;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998 filed with the Commission on August 14, 1998;
(c) The Company's Current Report on Form 8-K filed with the Commission
on September 1, 1998; and
(d) The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form 8-A (Commission File
No. 000-24581), as filed with the Commission pursuant to the
Exchange Act on July 6, 1998, and as may be further amended,
modified or superseded by any report or amendment filed with the
Commission for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement that indicates that
all securities offered hereby have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein, in any
subsequently filed amendment to this Registration Statement, or in any
document that also is incorporated by reference herein, modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XII of the Registrant's Articles of Incorporation, a copy of
which is filed as Exhibit 4.1 to this Registration Statement, provides the
following:
"A director of the Corporation shall not be liable to the
Corporation or its shareholders for monetary damages for an act or
omission in the director's capacity as a director, except that
this Article shall not authorize the elimination or limitation of
the liability of a director to the extent the director is found
liable for:
(1) a breach of the director's duty of loyalty to the
Corporation or its shareholders;
(2) an act or omission not in good faith that constitutes
a breach of duty of the director to the Corporation or an act or
omission that involves intentional misconduct or a knowing
violation of the law;
(3) a transaction from which the director received an
improper benefit, whether or not the benefit resulted from an
action taken within the scope of the director's office;
(4) an act or omission for which the liability of a
director is expressly provided by an applicable statute."
Article XI of the Registrant's Articles of Incorporation provides the
following:
"The directors and officers of the Corporation shall be
indemnified by the Corporation in a manner and to the maximum
extent permitted by applicable state or federal law as in effect
from time to time."
Section 7.06 of the Registrant's Bylaws, a copy of which is filed as
Exhibit 4.2 to this Registration Statement, provides the following:
"The Corporation shall have the authority to and shall indemnify
and advance expenses to the Directors, officers, employees, and
agents of the Corporation or any other persons serving at the
request of the Corporation in such capacities in a manner and to
the maximum extent permitted by applicable state or federal law.
The Corporation may purchase and maintain liability insurance or
make other arrangements for such obligations to the extent
permitted by the Texas Business Corporation Act."
The Texas Business Corporation Act permits, and in some cases
requires, corporations to indemnify officers, directors, agents and employees
who are or have been a party to or are threatened to be made a party to
litigation against judgments, penalties (including excise and similar taxes),
fines, settlements and reasonable expenses under certain circumstances.
A Registration Rights Agreement to which the Company is a party (a
copy of which was filed as Exhibit 4.2 to the Exchange Offer Form S-4
Registration Statement (Registration No. 333-64699)), which the Company
entered into in connection with a private placement of notes, provides for
indemnification by each of the initial purchasers of the notes, their
successors, assigns and direct and indirect transferees, and participating
broker-
II-2
<PAGE>
dealers holding certain notes, in specified circumstances, of the Company,
the other initial purchasers, underwriters and the other selling holders of
the notes, and each of their respective directors and officers and
controlling parties, and by the Company of initial purchasers of the notes,
their successors, assigns and direct and indirect transferees, and
participating broker-dealers holding certain notes, underwriters, and each
person, if any controlling any such underwriter or holder, in specified
circumstances, for certain liabilities arising under the Securities Act or
otherwise.
The Note Purchase Agreement (a copy of which was filed as Exhibit
10.49 to the Initial Form S-4 Registration Statement (Registration No.
333-57365)) for the sale of the notes provides for indemnification by the
initial purchasers specified therein of the Company and its officers and
directors, and by the Company of the initial purchasers specified therein,
for certain liabilities arising under the Securities Act or otherwise.
The Company currently has in effect a directors and officers liability
insurance policy covering the directors and executive officers of the Company
and its subsidiaries.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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<S> <C>
4.1 Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Initial Form S-4 Registration
Statement (Registration No. 333-57365)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Exchange Offer Form S-4 Registration Statement
(Registration No. 333-64699)).
4.3 Specimen certificate for the Company's Common Stock
(incorporated by reference to Exhibit 4.3 to the Initial Form
S-4 Registration Statement (Registration No. 333-57365)).
4.4* CapRock Communications Corp. Nonqualified Stock Option Plan.
4.5 IWL Communications, Incorporated 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.2 to IWL's
Registration Statement on Form S-1, as amended (Commission File
No. 333-22801)).
4.6 IWL Communications, Incorporated Employee Incentive Stock
Option Plan (incorporated by reference to Exhibit 10.1 to IWL's
Registration Statement on Form S-1 (Commission File No.
333-22801)).
4.7 IWL Communications, Incorporated 1997 Director Stock Option
Plan (incorporated by reference to Exhibit 10.3 to IWL's
Registration Statement on Form S-1 (Commission File No.
333-22801)).
5.1 Opinion of Munsch Hardt Kopf Harr & Dinan, P.C. regarding the
validity of the securities being registered (incorporated by
reference to Exhibit 5.1 to the Initial Form S-4 Registration
Statement (Registration No. 333-57365)).
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
-------- --------------------
<S> <C>
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of KPMG Peat Marwick LLP.
23.3* Consent of KPMG Peat Marwick LLP.
23.4* Consent of KPMG Peat Marwick LLP.
23.5* Consent of KPMG Peat Marwick LLP.
23.6* Consent of Burds Reed & Mercer, P.C.
23.7 Consent of Munsch Hardt Kopf Harr & Dinan, P.C. (incorporated
by reference to the consent included in the opinion filed as
Exhibit 5.1 to the Initial Form S-4 Registration Statement
(Registration No. 333-57365)).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
- --------------------
*Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The Company 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement
(notwithstanding the foregoing, any increase or decrease in the
volume of the securities offered (if the total dollar value of the
securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in this Registration
Statement);
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change in the information
set forth in this 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
II-4
<PAGE>
reports filed with or furnished to the Commission by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the Initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on November
9, 1998.
CAPROCK COMMUNICATIONS CORP.
By: /s/ JERE W. THOMPSON, JR.
----------------------------------
Jere W. Thompson, Jr.
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears
below in so signing also makes, constitutes and appoints Jere W. Thompson,
Jr. and Kevin W. McAleer, and each of them acting alone, his true and lawful
attorney-in-fact, with full power of substitution, for him in any and all
capacities, to execute and cause to be filed with the Securities and Exchange
Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto and other documents in
connection therewith and hereby ratifies and confirms all that said
attorney-in-fact or his substitute or substitutes may do or cause to be done
by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/JERE W. THOMPSON, JR. Chief Executive Officer,
- -------------------------- Chairman of the Board, and
Jere W. Thompson, Jr. Director (Principal Executive
Officer) November 9, 1998
/s/KEVIN W. MCALEER Senior Vice President and
- -------------------------- Chief Financial Officer
Kevin W. McAleer (Principal Accounting Officer) November 9, 1998
/s/IGNATIUS W. LEONARDS President, Vice Chairman of
- -------------------------- the Board, and Director November 9, 1998
Ignatius W. Leonards
/s/TIMOTHY W. ROGERS Executive Vice President and
- -------------------------- Director November 9, 1998
Timothy W. Rogers
/s/BYRON M. ALLEN Executive Vice President and
- -------------------------- Director November 9, 1998
Byron M. Allen
/s/MARK LANGDALE Director November 9, 1998
- --------------------------
Mark Langdale
/s/CHRISTOPHER J. AMENSON Director November 9, 1998
- --------------------------
Christopher J. Amenson
/s/JOHN R. HARRIS Director November 9, 1998
- --------------------------
John R. Harris
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
-------- --------------------
<S> <C>
4.1 Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Initial Form S-4 Registration
Statement (Registration No. 333-57365)).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Exchange Offer Form S-4 Registration Statement
(Registration No. 333-64699)).
4.3 Specimen certificate for the Company's Common Stock (incorporated
by reference to Exhibit 4.3 to the Initial Form S-4 Registration
Statement (Registration No. 333-57365)).
4.4* CapRock Communications Corp. Nonqualified Stock Option Plan.
4.5 IWL Communications, Incorporated 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.2 to IWL's Registration
Statement on Form S-1, as amended (Commission File No.
333-22801)).
4.6 IWL Communications, Incorporated Employee Incentive Stock Option
Plan (incorporated by reference to Exhibit 10.1 to IWL's
Registration Statement on Form S-1 (Commission File No.
333-22801)).
4.7 IWL Communications, Incorporated 1997 Director Stock Option Plan
(incorporated by reference to Exhibit 10.3 to IWL's Registration
Statement on Form S-1 (Commission File No. 333-22801)).
5.1 Opinion of Munsch Hardt Kopf Harr & Dinan, P.C. regarding the
validity of the securities being registered (incorporated by
reference to Exhibit 5.1 to the Initial Form S-4 Registration
Statement (Registration No. 333-57365)).
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of KPMG Peat Marwick LLP.
23.3* Consent of KPMG Peat Marwick LLP.
23.4* Consent of KPMG Peat Marwick LLP.
23.5* Consent of KPMG Peat Marwick LLP.
23.6* Consent of Burds Reed & Mercer, P.C.
23.7 Consent of Munsch Hardt Kopf Harr & Dinan, P.C. (incorporated by
reference to the consent included in the opinion filed as Exhibit
5.1 to the Initial Form S-4 Registration (Registration No.
333-57365)).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
- ------------------------
*Filed herewith.
<PAGE>
[LOGO]
NONQUALIFIED STOCK OPTION PLAN
ARTICLE I
PURPOSE AND DEFINITIONS
-----------------------
1.1 PURPOSE. CapRock Communications Corp., a Texas corporation, hereby
adopts this Nonqualified Stock Option Plan (the "Plan") for key employees of
CapRock Communications Corp. (the "Corporation") and its Subsidiaries and
Non-Employee Directors of the Corporation. The purposes of this Plan are as
follows:
(1) To further the growth, development, and financial success of the
Corporation by providing additional incentives to its employees and
Non-Employee Directors.
(2) To enable the Corporation to attract and retain the services of
employees and Non-Employee Directors considered essential to the long range
success of the Corporation by offering them an opportunity to become owners
of Common Stock of the Corporation using Options.
(3) To align the interests of the Corporation's employees and
Non-Employee Directors with those of its stockholders.
(4) To provide the Corporation's employees and Non-Employee Directors
with an appropriate level of reward in return for a superior level of
appreciation in the value of the Corporation's Common Stock.
1.2 EFFECTIVE DATE. The Plan will be effective September 30, 1997.
1.3 DEFINITIONS. Whenever the following terms are used in this Plan
they shall have the meaning specified below, unless the context otherwise
requires.
"BOARD" means the Board of Directors of the Corporation and, to the extent of
any delegation by the Board to a Committee (or subcommittee thereof) pursuant
to Section 4.1 of the Plan.
"CAUSE" means Participant's (a) criminal misconduct, (b) continuing refusal
to perform employment duties on substantially a full-time basis, (c) continuing
refusal to act in accordance with any lawful instructions of a more senior
officer or employee, or (d) deliberate misconduct which could be seriously
damaging to the Corporation without a reasonable good faith belief by the
Participant that his conduct was in the best interests of the Corporation.
A Participant's
1
<PAGE>
voluntary Termination of Employment in anticipation of dismissal for Cause
shall be deemed to be a dismissal of the Participant for Cause.
"CHANGE OF CONTROL" means any of the following events:
(a) The sale to any purchaser unaffiliated with the Corporation of all
or substantially all of the assets of the Corporation;
(b) The sale, distribution, or accumulation of more than fifty percent
(50%) of the outstanding voting stock of the Corporation to/by any one
acquirer or group of affiliated acquirers that are unaffiliated with the
Corporation; or
(c) The merger or consolidation of the Corporation with another entity
unaffiliated with the Corporation if, immediately after such merger or
consolidation, either (i) less than a majority of the combined voting power
of the then outstanding securities of such entity are held, directly or
indirectly, in the aggregate by the holders immediately prior to such
transaction of the then outstanding securities of the Corporation entitled to
vote generally in the election of Directors or (ii) such voting power among
the holders of the securities of such entity immediately after such
transaction is not in substantially the same proportion as the voting power
among the holders of the securities of the Corporation immediately prior to
such transaction.
"CODE" means the Internal Code of 1986, as amended from time to time.
"COMMITTEE" means the committee described in Section 4.1.
"COMMON STOCK" means the Common Stock, no par value, of the Corporation. To
the extent the context requires, the term "Common Stock" shall also mean any
other consideration that may be issuable upon exercise of an Option pursuant
to adjustments made under Section 2.3 of the Plan. The Common Stock of the
Corporation will be changed to no par value common stock shortly after the
adoption of this Plan and prior to the grant of any Options.
"CORPORATION" means CapRock Communications Corp. and its successors. Unless
the context requires otherwise, the term "Corporation" shall also include the
Corporation's Subsidiaries.
"DATE OF GRANT" means the date specified by the Board on which a grant of
Options will become effective (which date may not be earlier than the date on
which the Board takes action with respect thereto).
"DIRECTOR" means a member of the Board.
"DISABILITY" means an Participant's permanent disability, as determined in
good faith by the Committee or by an officer of the Corporation designated by
the Committee.
2
<PAGE>
"FAIR MARKET VALUE" on any date, means either (1) in the event the Common
Stock is publicly-traded, the ending sale prices per share of Common Stock on
such date (or, if such date is not a trading day, on the next preceding
trading day) on the exchange or market as shall constitute the principal
trading market for the Common Stock, or (2) in the event the Common Stock is
still privately-held, a multiple of five (5) times the amount determined by
dividing the total consolidated earnings of the Corporation before interest,
taxes, depreciation and amortization (EBITDA) for the four calendar quarters
immediately preceding the relevant valuation date, by the sum of the total
number of shares of Common Stock then issued and outstanding and all of the
Common Stock that could then be issued under all then outstanding Options,
whether or not then vested and including all Options to be issued on the date
of determination of Fair Market Value; provided however, if additional
classes of capital stock of the Corporation are issued and outstanding as of
such date, the Committee may, in its sole discretion, allocate a portion of
the total EBITDA referred to above to such other classes of capital stock.
Further provided, that for purposes of the first grant of Options under this
Plan, EBITDA shall be determined based on the four previous calendar quarters
ending June 30, 1997.
"INITIAL PUBLIC OFFERING" means the consummation of a public offering or a
series of public offerings by the Corporation of Common Stock registered
pursuant to the Securities Act of 1933, representing, after giving full
effect to such offering or offerings more than 30% of the fully diluted
outstanding shares of Common Stock.
"NON-EMPLOYEE DIRECTOR" means a member of the Board who is not an employee of
the Corporation or any Subsidiary.
"OPTION(S)" means an option granted under the Plan to purchase Common Stock.
Options include only options which are nonqualified and not intended to be
"incentive stock options" under Section 422A of the Internal Revenue Code of
1986, as amended.
"OPTION PRICE" means the purchase price payable on exercise of an Option.
"PARTICIPANT" means a person who is selected by the Board to receive awards
under the Plan and who is an employee of the Corporation or any one or more
of its Subsidiaries, and also includes each Non-Employee Director who
receives an award of Options.
"PLAN" means this Nonqualified Stock Option Plan, as amended from time to
time.
"RETIREMENT" shall mean a Participant's or Non-Employee Director's Retirement
as such at age 65 or over after having been employed by the Corporation or
having served as a Director for at least three (3) years shall constitute
Retirement for purposes of the Plan.
"SECRETARY" means the Secretary of the Corporation.
"SUBSIDIARY" means any corporation or other entity which is controlled by the
Corporation, directly or through one or more intermediaries, within the
meaning of Rule 405 under the Securities Act of 1933, as amended.
3
<PAGE>
"TERMINATION OF EMPLOYMENT" shall mean, in the case of a Participant, the
time when the employee-employer relationship between the Participant and the
Corporation is terminated for any reason whatsoever and, in the case of a
Non-Employee Director, the time when the Participant ceases to be a Director
for any reason whatsoever. The Committee, in its absolute discretion, shall
determine the effect of all other matters and questions relating to
Termination of Employment, including, but not limited to, any question
concerning whether particular leaves of absence constitute Terminations of
Employment and whether any reemployment by the Corporation is simultaneous
with termination.
1.4 RULES OF CONSTRUCTION. The masculine pronoun shall include the
feminine and the singular shall include the plural, where the context so
indicates.
ARTICLE II
SHARES AVAILABLE UNDER THE PLAN
-------------------------------
2.1 SHARES SUBJECT TO PLAN. The shares of stock subject to Options
shall be shares of Common Stock. The aggregate number of shares of Common
Stock which may be issued upon exercise of Options shall not exceed ten
percent (10%) of the shares outstanding.
2.2 UNEXERCISED OPTIONS. If any Option expires or is canceled without
having been fully exercised, the number of shares of Common Stock subject to
such Option but as to which such Option was not exercised prior to its
expiration or cancellation may again be optioned hereunder, subject to the
limitation of Section 2.1.
2.3 CHANGES IN COMMON STOCK. In the event that, after the date this
Plan is adopted, the outstanding shares of Common Stock are changed into or
exchanged for a different number or kind of shares of capital stock or other
securities of the Corporation, or other consideration, by reason of a merger,
consolidation, recapitalization, reclassification, stock split-up, stock
dividend, combination of shares or otherwise, the Committee shall make such
adjustments, as it deems appropriate in its sole discretion, in the number
and kind of shares or other securities for the purchase of which Options may
be granted, including adjustment of the limitation of Section 2.1 on the
maximum number and kind of shares or other securities which may be issued
upon exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
-------------------
3.1 GRANTING OF OPTIONS. The Board may, from time to time and upon such
terms and conditions as it may determine, authorize the granting to
Participants of Options to purchase shares of Common Stock. Each such grant
may utilize any or all of the authorizations, and will be subject to all of
the requirements, contained in the following provisions:
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(a) Each grant will specify the number of shares of Common Stock to
which it pertains subject to the limitations set forth in Section 2.1 of the
Plan.
(b) Each grant will specify the Option Price per share, which must be
equal to the Fair Market Value per share on the Date of Grant.
(c) Each grant will specify whether the Option Price will be payable (i)
in cash or check acceptable to the Corporation, (ii) by the actual or
constructive transfer to the Corporation of nonforfeitable, unrestricted
shares of Common Stock owned by the Participant having a value at the time of
exercise equal to the total Option Price, or (iii) by a combination of such
methods of payment.
(d) Successive grants may be made to the same Participant whether or not
any Options previously granted to such Participant remain unexercised.
(e) Any grant of Options may specify performance objectives that must be
achieved as a condition to the exercise of such rights.
(f) Each grant of Options will be evidenced by an agreement (the "Option
Agreement") executed on behalf of the Corporation by an officer and delivered
to the Participant. Such Option Agreement shall contain such terms and
provisions as the Board may approve in its sole discretion provided that such
terms and conditions shall not conflict with the explicit terms of this Plan.
3.2 WHEN OPTIONS BECOME EXERCISABLE; RESTRICTIONS ON STOCK.
(a) Unless the Board determines otherwise at the time of grant, each
Option shall become exercisable as to 20 percent of the shares of Common
Stock covered thereby on each anniversary of the initial Date of Grant.
(b) The Option Agreement shall provide such restrictions on transfer as
shall be determined by the Committee, including, but not limited to,
restrictions necessary to comply with the requirements of state and federal
securities laws. The certificates to be issued upon exercise of an Option
shall contain such legends as the Committee shall deem necessary to reflect
the restrictions and limitations set forth in the Option Agreement and this
Plan. Each Option Agreement shall provide that in any of the following
situations (collectively referred to as "exercise events") the Corporation
shall have the irrevocable right of first refusal and/or the option to
purchase from Participant and/or from his spouse, donees, or legal
representative (each of whom shall be deemed to be Participant for the
purposes of this Plan as the context requires), all of the shares of Common
Stock issued to Participant at any time before, simultaneous with, or after
the exercise event on account of the exercise of an Option granted by this
Plan (unless specified otherwise below and then as to the shares of Common
Stock specified):
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(i) If Participant shall propose during his lifetime to sell, pledge,
hypothecate or otherwise dispose of, deal in or with, or transfer any or all
of the shares of Common Stock (then as to the shares of Common Stock proposed
to be transferred).
(ii) If Participant files or has filed against him any petition under any
federal or state bankruptcy or related laws, or makes an assignment for the
benefit of creditors.
(iii) If any attachment, execution, or other process is levied against
Participant or any shares of Common Stock so as to become a lien on the
shares of Common Stock, and the lien is not released within fifteen (15) days
(then as to the shares of Common Stock so levied against).
(iv) If Participant's employment is terminated, with or without Cause,
involuntarily or voluntarily, by Participant or the Corporation, or if
Participant resigns from or is removed from, with or without Cause, any
office that Participant holds in the Corporation.
(v) Upon the Disability of Participant.
(vi) Upon the death of Participant.
(c) The purchase price to be paid by the Corporation for the shares of
Common Stock subject to the Corporation's option provided in Section 3.2(b)
above shall equal: (i) in the case of a proposed disposition as provided in
Section 3.2(b)(i) above, the lesser of the price proposed to be paid for the
shares of Common Stock or the Fair Market Value per share as of the date
written notice of such proposed disposition is given to the Corporation, and
(ii) in all other exercise events, the Fair Market Value per share as of the
date of the occurrence of such exercise event. The terms of purchase and the
date of closing of the purchase shall be determined by the Board in its sole
discretion and set forth in the Option Agreement.
3.3 EXPIRATION OF OPTIONS; TERMINATION OF EMPLOYMENT.
(a) Unless the Board determines otherwise at the Date of Grant, each
Option shall contain the following general terms:
(i) The Option shall expire on the tenth anniversary of the Date of
Grant.
(ii) The Option shall expire or become exercisable in connection with a
Termination of Employment as follows: (A) if the Termination of Employment
results from the Participant's death, Disability or Retirement, all Options
then held by the Participant which are exercisable on the date of Termination
of Employment shall continue to be exercisable until the earlier of the first
anniversary of such Termination of Employment or their stated expiration date
and all such Options which are not exercisable on such date of Termination of
Employment shall automatically expire on such date; (B) if the Termination of
Employment results from the Participant's dismissal for Cause, all Options
then held by the Participant shall automatically expire and become totally
unexercisable on and after the date of such Termination of Employment; (C) if
the Termination of Employment results from any other circumstances, all
Options then held by the Participant which are exercisable on the date of
Termination of
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Employment shall continue to be exercisable until the earlier of ninety (90)
days after such date or their stated expiration date, and all such Options
which are not exercisable on the date of Termination of Employment shall
automatically expire on such date.
3.4 NO RIGHT TO CONTINUE IN EMPLOYMENT; NO RIGHT TO GRANT OF OPTIONS;
NO RIGHTS AS STOCKHOLDER. Nothing in this Plan or in any Option granted
hereunder shall confer upon any Participant any right to continue in the employ
of the Corporation or any of its Subsidiaries or shall interfere with or
restrict in any way the rights of the Corporation and its Subsidiaries, which
are hereby expressly reserved, to discharge any Participant at any time for
any reason whatsoever, with or without Cause. No Participant shall be
entitled to be granted an Option under the Plan, regardless of his position
or term of service with the Corporation, the fact that he has been granted an
Option under the Plan or stock options or other benefits under any other
benefit plan, or any other facts and circumstances. Grant of Options shall
be made in the sole and absolute discretion of the Committee. No holder of
an Option as such shall be, or shall have any of the rights and privileges
of, a holder of any shares of Common Stock.
3.5 ACCELERATION OF EXERCISABILITY IN CERTAIN EVENTS.
(a) In the event of a Change of Control or an Initial Public Offering
(IPO), the unvested options will become immediately exercisable.
(b) The Corporation shall promptly notify each holder of an Option of
any event which shall cause the acceleration of all outstanding Options.
(c) In the event of a Change of Control or an Initial Public Offering
(IPO) the Committee may, in its sole discretion, by written notice to each
holder of outstanding Options, provide that all or any portion of the Options
will be terminated unless exercised within a period of time after the date of
notice.
3.6 TRANSFERABILITY. If a Participant dies or becomes disabled (within
the meaning of Code Section 22(e)(3)) prior to termination of his right to
exercise an Option in accordance with the provisions of his Option Agreement
without having totally exercised the Option, the Option Agreement may provide
that the Option may be exercised, to the extent of the shares with respect to
which the Option could have been exercised by the Participant on the date of
his death or Disability, by (i) the personal representative of Participant's
estate or by the person who acquired the right to exercise the Option by
bequest or inheritance or by reason of the death of the Participant, or (ii)
the Participant or his legal representative in the event of the Participant's
Disability, provided the Option is exercised prior to the date of its
expiration or not more than twelve (12) months from the date of the
Participant's death or Disability, whichever first occurs. The date of
Disability of a Participant shall be determined by the Committee.
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ARTICLE IV
ADMINISTRATION
--------------
4.1 OPTIONS COMMITTEE. The Options Committee shall be appointed by and
shall serve at the pleasure of the Board. The Committee shall consist of
four members of the Board. Appointment of Committee members shall be
effective upon acceptance of appointment. Committee members may resign at
any time by delivering written notice to the Board. Vacancies in the
Committee shall be filled by the Board.
4.2 DUTIES AND POWERS OF COMMITTEE. It shall be the duty of the
Committee to conduct the general administration of the Plan in accordance
with its provisions. The Committee shall have the power to interpret the
Plan and the Options and to adopt such rules for the administration,
interpretation, and application of the Plan as are consistent therewith and
to interpret, amend or revoke any such rules. Any such interpretations and
rules shall be consistent with the basic purposes of the Plan. In its
absolute discretion, the Board may at any time, and from time to time, exercise
any and all rights and duties of the Committee under the Plan.
4.3 PROFESSIONAL ASSISTANCE; GOOD FAITH ACTIONS. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Corporation and the officers and Directors of
the Corporation shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all interpretations
and determinations made by the Committee in good faith shall be final and
binding upon all Participants, the Corporation and all other interested
persons. No member of the Committee shall be personally liable for any
action, determination or interpretation made in good faith with respect to
the Plan or the Options, and all members of the Committee shall be fully
protected by the Corporation in respect to any such action, determination or
interpretation.
4.4 WITHHOLDING TAXES. To the extent that the Corporation is required
to withhold federal, state, local or foreign taxes in connection with any
payment made or benefit realized by a Participant or other person under the
Plan, and the amounts available to the Corporation for such withholding are
insufficient, it will be a condition to the receipt of such payment or the
realization of such benefit that the Participant or such other person make
arrangements satisfactory to the Corporation for payment of the balance of
such taxes required to be withheld, which arrangements (at the discretion of
the Board) may include relinquishment of a portion of such benefit. The
Corporation and a Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
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ARTICLE V
MISCELLANEOUS PROVISIONS
------------------------
5.1 AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN. The Plan may be
wholly or partially amended or otherwise modified, suspended or terminated at
any time or from time to time by the Committee or the Board. However, the
approval of the Corporation's stockholders shall be required for any
modification or amendment of outstanding Options. The amendment, suspension
or termination of the Plan shall not, without the consent of the holder of an
Option, adversely affect any rights or obligations of the Participant under
any outstanding Option in any material respect. No Option may be granted
during any period of suspension nor after termination of the Plan, and in no
event may any Option be granted under this Plan after the expiration of ten
(10) years from the date the Plan is adopted or the date the stockholders of
the Corporation approve this Plan, if earlier.
5.2 EFFECT OF PLAN UPON OTHER OPTIONS AND COMPENSATION PLANS. The
adoption of this Plan shall not affect any other compensation or incentive
plans in effect for the Corporation or any Subsidiary. Nothing in this Plan
shall be constituted to limit the right of the Corporation or any of its
Subsidiaries (a) to establish any other forms of incentives or compensation
for Participants of the Corporation or any of its Subsidiaries or (b) to
grant or assume options otherwise than under this Plan in connection with any
proper corporate purpose, including, but not by way of limitation, the grant
or assumption of options in connection with the acquisition by purchase,
lease, merger, consolidation or otherwise, of the business, stock or assets
of any corporate or other entity.
5.3 GOVERNING LAW. The laws of the State of Texas shall govern the
Plan and each Option, regardless of the citizenship or residence of any
Participant.
5.4 ALTERNATIVE DISPUTE RESOLUTION. The Committee may provide in each
Option Agreement that any controversy or claim arising from this Plan or such
Option Agreement must be resolved by alternative dispute resolution
procedures, such as non-binding mediation and/or binding or non-binding
arbitration. Such procedures shall be determined by the Committee in its
sole discretion.
5.5 TERMS OF FIRST GRANT. It is intended that with respect to the
first grant of Options under this Plan that (a) the Option Agreements will
provide for a vesting schedule beginning as of September 1, 1997 even though
such date is prior to the adoption of this Plan and the Date of Grant and (b)
the Option Agreements will provide for an expiration date ending August 31,
2007 even though such date is prior to ten (10) years from the Date of Grant.
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Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
CapRock Telecommunications Corp.
(formerly CapRock Communications Corp.)
We consent to the incorporation by reference herein of our report on the
balance sheet of CapRock Telecommunications Corp. (formerly CapRock
Communications Corp.) as of December 31, 1997, and the related statements of
operations, stockholders' equity and cash flows for the year then ended,
which report appears in Registration Statement No. 333-64699 on Form S-4.
KPMG PEAT MARWICK LLP
Dallas, Texas
November 6, 1998
<PAGE>
Exhibit 23.2
Independent Auditors' Consent
The Partners
CapRock Fiber Network Ltd.
We consent to the incorporation by reference herein of our report on the
balance sheet of CapRock Fiber Network Ltd., as of December 31, 1997, and the
related statements of operations, partners' deficit and cash flows for the
year then ended, which report appears in Registration Statement No. 333-64699
on Form S-4.
KPMG PEAT MARWICK LLP
Dallas, Texas
November 6, 1998
<PAGE>
Exhibit 23.3
Independent Auditors' Consent
The Board of Directors
IWL Communications, Inc. and Subsidiaries
We consent to the incorporation by reference herein of our report on the
consolidated balance sheets of IWL Communications, Inc. and Subsidiaries as
of June 30, 1996 and 1997, and as of December 31, 1997, and the related
consolidated statements of operations, stockholders' equity and cash flows
for each of the years in the three-year period ended June 30, 1997 and for
the six months ended December 31, 1997, which report appears in Registration
Statement No. 333-64699 on Form S-4.
KPMG PEAT MARWICK LLP
Houston, Texas
November 6, 1998
<PAGE>
Exhibit 23.4
Independent Auditors' Consent
The Board of Directors
CapRock Communications Corp.
(formerly IWL Holdings Corporation)
We consent to the incorporation by reference herein of our report on the
balance sheet of CapRock Communication Corp. (formerly IWL Holdings
Corporation) as of June 30, 1998, which report appears in Registration
Statement No. 333-64699 on Form S-4.
KPMG PEAT MARWICK LLP
Dallas, Texas
November 6, 1998
<PAGE>
Exhibit 23.5
Independent Auditors' Consent
The Board of Directors
CapRock Communications Corp.
(formerly IWL Holdings Corp.)
We consent to the incorporation by reference herein of our report on the
supplemental consolidated balance sheets of CapRock Communications Corp. and
Subsidiaries (formerly IWL Holdings Corp.) as of December 31, 1996 and 1997,
and the related supplemental statements of operations, stockholders' equity and
cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in Registration Statement No. 333-64699 on Form S-4.
KPMG PEAT MARWICK LLP
Dallas, Texas
November 6, 1998
<PAGE>
Exhibit 23.6
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
CapRock Telecommunications Corp.
(formerly CapRock Communications Corp.)
The Partners of CapRock Fiber Network, Ltd.
We consent to the incorporation by reference of our reports dated May 28,
1997 and March 19, 1997, respectively, related to CapRock Telecommunications
Corp. and CapRock Fiber Network, Ltd. in the Post-Effective Amendment No. 1
on Form S-8 to the Form S-4 Registration Statement of CapRock Communications
Corp. and the related prospectus deemed to be included therein pertaining to
the CapRock Communications Corp. Nonqualified Stock Option Plan, IWL
Communications, Incorporated Employee Incentive Stock Option Plan, IWL
Communications, Incorporated 1997 Stock Option Plan, and IWL Communications,
Incorporated 1997 Director Stock Option Plan (the reports are included in
CapRock Communnications Corp.'s Form S-4 Registration Statement, as amended
(Registration No. 333-64699)).
BURDS REED & MERCER, P.C.
Dallas, Texas
November 6, 1998
