As filed with the Securities and Exchange Commission on December 8 1997
Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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INTERNATIONAL FIBERCOM, INC.
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(Exact name of Registrant as specified in its charter)
Arizona 8-0271282
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3615 South 28th Street, Phoenix, Arizona 85040
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(Address of Principal Executive Offices) (Zip Code)
1994 Incentive Stock Option Plan
International FiberCom, Inc. 1997 Incentive Stock Option Plan
International FiberCom, Inc. 1997 Restricted Stock Plan
International FiberCom, Inc. Employee Stock Purchase Plan
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(Full title of plans)
Mr. Joseph P. Kealy
International FiberCom, Inc.
3615 South 28th Street
Phoenix, Arizona 85040
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(Name and address of agent for service)
(602)941-1900
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(Telephone number, including area code, of agent for service)
The Commission is requested to send copies of all communications to:
Christian J. Hoffmann, III, Esq.
Streich Lang, P.A.
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004
(602) 229-5336
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share(2) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock, no par value 3,641,707(1) $6.25 $22,760,669 $6,900
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</TABLE>
(1) Consists of: (a) 441,707 shares issuable upon the exercise of options
granted under the 1994 Incentive Stock Option Plan or upon grant under
the International FiberCom, Inc. 1997 Restricted Stock Plan, (b)
1,200,000 shares issuable upon exercise of options granted under the
International FiberCom, Inc. 1997 Incentive Stock Option Plan; and (c)
2,000,000 shares to be sold and issued under the International
FiberCom, Inc. Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933, on the basis of the average of the high and low prices for
shares of Common Stock on December 1, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The following documents are hereby incorporated by reference into
this Prospectus: (a) the Registrant's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1996; (b) all reports filed with the Securities
and Exchange Commission pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since December 31, 1996; and (c) the description of the
Registrant's capital stock contained in the Registrant's Registration Statement
on Form 8-A filed with the Securities and Exchange Commission pursuant to
Section 12 of the Securities Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing such documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. See Exhibit 5.
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Item 6. Indemnification of Directors and Officers.
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The Registrant's Articles of Incorporation and Bylaws require the
Registrant to indemnify its directors and officers to the full extent provided
by Arizona law.
ARTICLE XII of the Articles of Incorporation of the Registrant provides as
follows:
The Corporation shall indemnify any person against expenses,
including without limitation, attorney's fees, judgements, fines and amounts
paid in settlement, actually and reasonably incurred by reason of the fact that
he or she is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, in all circumstances in which, to the extent that, such
indemnification is specifically permitted and provided for by the laws of the
State of Arizona as then in effect.
ARTICLE XII of the Bylaws of the registrant provide as follows:
12.01 Indemnification. To the full extent permitted by Arizona
law, the Corporation shall indemnify and pay the expenses of any person who is
or was made, or threatened to be made, a party to an action or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he is or was a director, officer, employee, trustee or agent of or for the
Corporation or is or was serving at the request or with the prior approval of
the Corporation as a director, officer, employee, trustee or agent of another
corporation, trust or enterprise, against any liability asserted against him and
incurred by him in any capacity or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against such liability
under the provisions of these Bylaws.
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Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Notes
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<S> <C> <C>
4.1 1994 Incentive Stock Option Plan *
4.2 International FiberCom, Inc 1997 Incentive Stock Option Plan *
4.3 International FiberCom, Inc. Employee Stock Purchase Plan *
4.4 International FiberCom, Inc. 1997 Restricted Stock Plan *
4.5 Form of 1994 Incentive Stock Option Agreement *
4.6 Form of 1997 Incentive Stock Option Agreement *
5 Form of opinion rendered by Streich Lang, P.A., *
counsel for the Registrant
23.1 Consent of independent public accountants *
23.2 Consent of Counsel See Exhibit 5
</TABLE>
* Filed Herewith
Item 9. Undertakings.
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(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)
3
<PAGE>
which, individually or in the aggregate, represents 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 (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purposes 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 offered, 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 Phoenix, and the State of Arizona, on December 8,
1997.
INTERNATIONAL FIBERCOM, INC.
BY /s/ Joseph P. Kealy
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Joseph P. Kealy
President and Chairman of the Board
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature and Title Date
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/s/ Joseph P. Kealy December 8, 1997
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Joseph P. Kealy
President and Chairman of the Board
/s/ Terry W. Beiriger December 8, 1997
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Terry W. Beiriger
Principal Financial Officer, Controller, Treasurer
and Secretary
/s/ John F. Kealy December 8, 1997
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John F. Kealy
Director
/s/ Richard J. Seminoff December 8, 1997
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Richard J. Seminoff
Director
/s/ Jerry A. Kleven December 8, 1997
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Jerry A. Kleven
Director
/s/ V. Thompson Brown, Jr. December 8, 1997
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V. Thompson Brown, Jr.
Director
6
INTERNATIONAL FIBERCOM, INC.
1994 INCENTIVE STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this 1994 Incentive Stock
Option Plan are to attract and retain the best available personnel for positions
of responsibility within the Company, to provide additional incentive to
Employees of the Company, and to promote the success of the Company's business
through the grant of options to purchase shares of the Company's Common Stock.
Options granted hereunder may be either Incentive Stock or
Non-Statutory Stock Options, at the discretion of the Board. The type of options
granted shall be reflected in the terms of written Stock Option agreements.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company
or, when appropriate, the Committee administering the Plan, if one has
been appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(c) "Common Stock" shall mean the common stock of the Company
described in the Company's Articles of Incorporation, as amended.
(d) "Company" shall mean INTERNATIONAL FIBERCOM, INC., an
Arizona corporation, and shall include any parent or subsidiary
corporation of the Company as defined in Sections 425(e) and (f),
respectively, of the Code.
(e) "Committee" shall mean the Committee appointed by the
Board in accordance with paragraph (a) of Section 4 of the Plan, if one
is appointed.
(f) "Employee" shall mean any person, including salaried
officers and directors, employed by the Company. The payment of a
director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
(g) "Exchange Act" shall mean the Securities and Exchange Act
of 1934, as amended.
(h) "Fair Market Value" shall mean, with respect to the date a
given Option is granted or exercised, the value of the Common Stock
determined by the Board in such manner as it may deem equitable for
Plan purposes but, in the case of an Incentive Stock Option, no less
than is required by applicable laws or regulations; provided, however,
that where there is a public market for the Common Stock, the Fair
Market Value per Share shall be the mean of the bid and asked prices of
the Common Stock on the date of grant, as reported in the Wall Street
Journal (or, if not so reported, as otherwise reported in the National
Association of Securities Dealers Automated Quotation System) or, in
the event the Common Stock is listed on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ/National Market System, the
Fair Market Value per Share shall be the closing price on such exchange
on the date of grant of the Option, as reported in the Wall Street
Journal.
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(i) "Incentive Stock Option" shall mean an Option which is
intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
(j) "Option" shall mean a stock option granted under the Plan.
(k) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(l) "Optionee" shall mean an Employee of the Company who has
been granted one or more Options.
(m) "Nonstatutory Stock Option" shall mean an Option which is
not an Incentive Stock Option.
(n) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 425(e) of the Code.
(o) "Plan" shall mean this 1994 Incentive Stock Option Plan.
(p) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(q) "Stock Option Agreement" shall mean the written agreement
between the Company and the Optionee relating to the grant of an
Option.
(r) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 425(f) of the
Code.
(s) "Tax Date" shall mean the date an Optionee is required to
pay the Company an amount with respect to tax withholding obligations
in connection with the exercise of an option.
3. Common Stock Subject to the Plan. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of shares which may be
optioned and sold under the Plan is Four Hundred Forty-One Thousand Seven
Hundred Seven (441,707) Shares of Common Stock. The Shares may be authorized,
but unissued, or previously issued Shares acquired by the Company and held in
treasury.
If an Option should expire or become unexercisable for any
reason without having been exercised in full, the unpurchased Shares covered by
such Option shall, unless the Plan shall have been terminated, be available for
future grants of Options.
4. Administration of the Plan.
(a) Procedure.
(i) The Plan shall be administered by the Board in
accordance with Rule 16b-3 under the Exchange Act ("Rule
16b-3"); provided, however, that the Board may appoint a
Committee to administer the Plan at any time or from time to
time, and, provided
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<PAGE>
further, that if the Board is not "disinterested" within the
meaning of Rule 16b-3, the Plan shall be administered by a
Committee in accordance with Rule 16b-3.
(ii) Once appointed, the Committee shall continue to
serve until otherwise directed by the Board. From time to time
the Board may increase the size of the Committee and appoint
additional members thereof, remove members (with or without
cause), appoint new members in substitution therefor, and fill
vacancies however caused: provided, however, that at no time
may any person serve on the Committee if that person's
membership would cause the Committee not to satisfy the
"disinterested administration" requirements of Rule 16b-3.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to
grant Incentive Stock Options and Nonstatutory Stock Options; (ii) to
determine, upon review of relevant information and in accordance with
Section 2 of the Plan, the Fair Market Value of the Common Stock; (iii)
to determine the exercise price per Share of Options to be granted,
which exercise price shall be determined in accordance with Section
8(a) of the Plan; (iv) to determine the Employees to whom, and the time
or times at which, Options shall be granted and the number of Shares to
be represented by each Option; (v) to interpret the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating to the
Plan; (vii) to determine the terms and provisions of each Option
granted (which need not be identical) and, with the consent of the
Optionee thereof, modify or amend each Option; (viii) to accelerate or
defer (with the consent of the Optionee) the exercise date of any
Option; (ix) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an Option
previously granted by the Board; (x) to accept or reject the election
made by an Optionee pursuant to Section 17 of the Plan; and (xi) to
make all other determinations deemed necessary or advisable for the
administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations
and interpretations of the Board shall be final and binding on all
Optionees and any other holders of any Options granted under the Plan.
5. Eligibility.
(a) Consistent with the Plan's purposes, Options may be
granted only to Employees of the Company as determined by the Board. An
Employee who has been granted an Option may, if he is otherwise
eligible, be granted an additional Option or Options. Incentive Stock
Options may be granted only to those Employees who meet the
requirements applicable under Section 422 of the Code.
(b) All Options granted to Employees of the Company under the
Plan will be subject to forfeiture until such time as the Optionee has
been continuously employed by the Company for one year after the date
of the grant of the Options, and may not be exercised prior to such
time. At such time as the Optionee has been continuously employed by
the Company for one year, the foregoing restriction shall lapse and the
Optionee may exercise the Options at any time otherwise consistent with
the Plan.
(c) With respect to Incentive Stock Options, the aggregate
Fair Market Value (determined at the time the Incentive Stock Option is
granted) of the Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by the employee during any
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calendar year (under all employee benefit plans of the Company) shall
not exceed One Hundred Thousand Dollars ($100,000).
6. Stockholder Approval and Effective Dates. The Plan became effective
upon approval by the Stockholders. No Option may be granted under the Plan after
May 31, 2004 (ten years from the effective date of the Plan); provided, however
that the Plan and all outstanding Options shall remain in effect until such
Options have expired or until such Options are canceled.
7. Term of Option. Unless otherwise provided in the Stock Option
Agreement, the term of each Option shall be ten (10) years from the date of
grant thereof. In no case shall the term of any Option exceed ten (10) years
from the date of grant thereof. Notwithstanding the above, in the case of an
Incentive Stock Option granted to an Employee who, at the time the Incentive
Stock Option is granted, owns ten percent (10%) or more of the Common Stock as
such amount is calculated under Section 422(b)(6) of the Code ("Ten Percent
Stockholder"), the term of the Incentive Stock Option shall be five (5) years
from the date of grant thereof or such shorter time as may be provided in the
Stock Option Agreement.
8. Exercise Price and Payment.
(a) Exercise Price. The per Share exercise price for the
Shares to be issued pursuant to exercise of an Option shall be
determined by the Board, but in the case of an Incentive Stock Option
shall be no less than one hundred percent (100%) of the Fair Market
Value per share on the date of grant, and in the case of a Nonstatutory
Stock Option shall be no less than eighty-five percent (85%) of the
Fair Market Value per share on the date of grant. Notwithstanding the
foregoing, in the case of an Incentive Stock Option granted to an
Employee who, at the time of the grant of such Incentive Stock Option,
is a Ten Percent Stockholder, the per Share exercise price shall be no
less than one hundred ten percent (110%) of the Fair Market Value per
Share on the date of grant.
(b) Payment. The price of an exercised Option and the
Employee's portion of any taxes attributable to the delivery of Common
Stock under the Plan, or portion thereof, shall be paid:
(i) In United States dollars in cash or by check,
bank draft or money order payable to the order of the Company;
or
(ii) At the discretion of the Board, through the
delivery of shares of Common Stock with an aggregate Fair
Market Value equal to the option price and withholding taxes,
if any; or
(iii) At the election of the Optionee pursuant to
Section 17 and with the consent of the Board pursuant to
Section 4(b)(x), by the Company's retention of such number of
shares of Common Stock subject to the exercised Option which
have an aggregate Fair Market Value on the exercise date equal
to the Employee's portion of the Company's aggregate federal,
state, local and foreign tax withholding and FICA and FUTA
obligations with respect to income generated by the exercise
of the Option by Optionee;
(iv) By a combination of (i), (ii) and (iii) above;
or
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(v) In the manner provided in subsection (c) below.
The Board shall determine acceptable methods for
tendering Common Stock as payment upon exercise of an Option and may
impose such limitations and prohibitions on the use of Common Stock to
exercise an Option as it deems appropriate.
(c) Financial Assistance to Optionees. The Board may assist
Optionees in paying the exercise price of Options granted under this
Plan in the following manner:
(i) The extension of a loan to the Optionee by the
Company; or
(ii) Payment by the Optionee of the exercise price in
installments; or
(iii) A guaranty by the Company of a loan obtained by
the Optionee from a third party.
The terms of any loans, installment payments or
guarantees, including the interest rate and terms of repayment, and
collateral requirements, if any, shall be determined by the Board, in
its sole discretion. Subject to applicable margin requirements, any
loans, installment payments or guarantees authorized by the Board
pursuant to the Plan may be granted without security, but the maximum
credit available shall not exceed the exercise price for the Shares for
which the Option is to be exercised, plus any federal and state income
tax liability incurred in connection with the exercise of the Option.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Stockholder. Any
Option granted hereunder shall be exercisable at such times and under
such conditions as determined by the Board, including performance
criteria with respect to the Company and/or the Optionee, and as shall
be permissible under the terms of the Plan. Unless otherwise determined
by the Board at the time of grant, an Option may be exercised in whole
or in part. An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in
accordance with the terms of the Option by the person entitled to
exercise the Option and full payment for the Shares with respect to
which the Option is exercised has been received by the Company. Full
payment may, as authorized by the Board, consist of any consideration
and method of payment allowable under Section 8(b) of the Plan. Until
the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a stockholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued,
except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available,
both for purposes of the Plan and for sale under the Option, by the
number of Shares for which the Option is exercised.
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(b) Termination of Status as an Employee. If an Employee's
employment by the Company is terminated for cause, then any Option held
by the Employee shall be immediately canceled upon termination of
employment and the Employee shall have no further rights with respect
to such Option. Unless otherwise provided in the Stock Option Agreement
(which may reduce but not increase the time period described below), if
an Employee's employment by the Company is terminated for reasons other
than cause, and does not occur due to death or disability, then the
Employee may, with the consent of the Board, but only within ten (10)
days after the date he ceases to be an Employee of the Company,
exercise his Option to the extent that he was entitled to exercise it
at the date of such termination. To the extent that he was not entitled
to exercise the Option at the date of such termination, or if he does
not exercise such Option (which he was entitled to exercise) within the
time specified herein, the Option shall terminate.
(c) Disability. Unless otherwise provided in the Stock Option
Agreement (which may reduce but not increase the time period described
below), notwithstanding the provisions of Section 9(b) above, in the
event an Employee is unable to continue his employment with the Company
as a result of his permanent and total disability (as defined in
Section 22(e)(3) of the Code), he may, but only within twelve (12)
months from the date of termination, exercise his Option to the extent
he was entitled to exercise it at the date of such termination. To the
extent that he was not entitled to exercise the Option at the date of
termination, or if he does not exercise such Option (which he was
entitled to exercise) within the time specified herein, the Option
shall terminate.
(d) Death. Unless otherwise provided in the Stock Option
Agreement (which may reduce but not increase the time period described
below), if an Employee dies during the term of the Option and is at the
time of his death an Employee of the Company who shall have been in
continuous status as an Employee since the date of grant of the Option,
the Option may be exercised at any time within twelve (12) months
following the date of death (or such other period of time as is
determined by the Board) by the Employee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance,
but only to the extent that an Employee was entitled to exercise the
Option on the date of death. To the extent the Employee was not
entitled to exercise the Option on the date of death, or if the
Employee's estate, or person who acquired the right to exercise the
Option by bequest or inheritance, does not exercise such Option (which
he was entitled to exercise) within the time specified herein, the
Option shall terminate.
10. Non-Transferability of Options. An Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than by
will or by the laws of descent or distribution, or pursuant to a "qualified
domestic relations order" under the Code and ERISA, and may be exercised, during
the lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger. Subject to
any required action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect and no adjustment by reason thereof, shall be made with respect to
the number or price of shares of Common Stock subject to an Option.
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In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. 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, the Option 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
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee 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 Board makes an Option fully
exercisable in lieu of assumption or substitution in the event of a merger of
sale of assets, the Board shall notify the Optionee that the Option shall be
fully exercisable for a period of sixty (60) days from the date of such notice
(but not later than the expiration of the term of the Option under the Option
Agreement), and the Option will terminate upon the expiration of such period.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Board makes the determination granting
such Option. Notice of the determination shall be given to each Employee to whom
an Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may
deem advisable; provided, however, that the following revisions or
amendments shall require approval of the Stockholders of the Company,
to the extent required by law, rule or regulation:
(i) Any material increase in the number of Shares
subject to the Plan, other than in connection with an
adjustment under Section 11 of the Plan;
(ii) Any material change in the designation of the
Employees eligible to be granted Options; or
(iii) Any material increase in the benefits accruing
to participants under the Plan.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted and
such Options shall remain in full force and effect as if this Plan had
not been amended or terminated, unless mutually agreed otherwise
between the Optionee and the Board, which agreement must be in writing
and signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant
-7-
<PAGE>
thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the company, such a representation is required by any of
the aforementioned relevant provisions of law.
Inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue or
sell such Shares as to which such requisite authority shall not have been
obtained.
In the case of an Incentive Stock Option, any Optionee who
disposes of Shares of Common Stock acquired upon the exercise of an Option by
sale or exchange (a) either within two (2) years after the date of the grant of
the Option under which the Common Stock was acquired or (b) within one (1) year
after the acquisition of such Shares of Common Stock shall notify the Company of
such disposition and of the amount realized upon such disposition.
15. Reservation of Shares. The Company will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
16. Option Agreement. Options shall be evidenced by Stock Option
Agreements in such form as the Board shall approve.
17. Withholding Taxes. Subject to Section 4(b)(x) of the Plan and prior
to the Tax Date, the Optionee may make an irrevocable election to have the
Company withhold from those Shares that would otherwise be received upon the
exercise of any Option, a number of Shares having a Fair Market Value equal to
the minimum amount necessary to satisfy the Company's federal, state, local and
foreign tax withholding obligations and FICA and FUTA obligations with respect
to the exercise of such Option by the Optionee.
An Optionee who is also an officer of the Company must make
the above described election:
(a) at least six months after the date of grant of the Option
(except in the event of death or disability); and
(b) either:
(i) six months prior to the Tax Date, or
(ii) prior to the Tax Date and during the period
beginning on the third business day following the date the
Company releases its quarterly or annual statement of sales
and earnings and ending on the twelfth business day following
such date.
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<PAGE>
18. Miscellaneous Provisions.
(a) Plan Expense. Any expense of administering this Plan shall
be borne by the Company.
(b) Use of Exercise Proceeds. The payment received from
Optionees from the exercise of Options shall be used for the general
corporate purposes of the Company.
(c) Construction of Plan. The place of administration of the
Plan shall be in the State of Arizona, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules
and regulations, and rights relating to the Plan, shall be determined
in accordance with the laws of the State of Arizona without regard to
conflict of law principles and, where applicable, in accordance with
the Code.
(d) Taxes. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the
delivery of Common Stock under the Plan from other amounts payable to
the Employee after giving the person entitled to receive such Common
Stock notice as far in advance as practical, and the Company may defer
making delivery of such Common Stock if any such tax may be pending
unless and until indemnified to its satisfaction.
(e) Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board, the members
of the Board shall be indemnified by the Company against all costs and
expenses reasonably incurred by them in connection with any action,
suit or proceeding to which they or any of them may be party by reason
of any action taken or failure to act under or in connection with the
Plan or any Option, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal
counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suite or proceeding, except a judgment
based upon a finding of bad faith; provided that upon the institution
of any such action, suit or proceeding a Board member shall, in
writing, give the Company notice thereof and an opportunity, at its own
expense, to handle and defend the same before such Board member
undertakes to handle and defend it on her or his own behalf.
(f) Gender. For purposes of this Plan, words used in the
masculine gender shall include the feminine and neuter, and the
singular shall include the plural and vice versa, as appropriate.
(g) No Employment Agreement. The Plan shall not confer upon
any Optionee any right with respect to continuation of employment with
the Company, nor shall it interfere in any way with his right or the
Company's right to terminate his employment at any time.
-9-
INTERNATIONAL FIBERCOM, INC.
1997 STOCK OPTION PLAN
The following definitions shall be applicable throughout the Plan:
(a) "Board" means the Board of Directors of the Company.
(b) "Articles of Incorporation" means the Company's Articles of
Incorporation, as amended or restated from time to time.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time. Reference in the Plan to any Section of the Code shall be deemed
to include any amendments or successor provisions to such Section and any rules
or regulations under such Section.
(d) "Committee" means the committee appointed by the Board to
administer the Plan as referred to in Article V.
(e) "Commission" means the Securities and Exchange Commission or any
successor agency.
(f) "Company" means International FiberCom, Inc., an Arizona
corporation.
(g) "Date of Grant" means the date on which the granting of an Option
is authorized by the Board or such later date as may be specified by the Board
in such authorization as referred to in Article V.
(h) "Eligible Employee" means any person regularly employed by the
Company or a Subsidiary on a full-time salaried basis who satisfies all of the
requirements of Article IX.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder.
(j) "Fair Market Value" is defined in Article IV.
(k) "Holder" means an employee of the Company or a Subsidiary who has
been granted an Option.
(l) "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of ss.422 of the
Code.
(m) "Non-Employee Director" means a member of the Board who qualifies
as a "Non-Employee Director" as defined in Rule 16b-3, as promulgated by the
Commission under the Exchange Act or any successor definition adopted by the
Commission.
<PAGE>
(n) "Non-Incentive Options" means an Option which is not an Incentive
Stock Option
(o) "Normal Termination" means termination at retirement pursuant to
the Company or Subsidiary retirement plan then in effect.
(p) "Option" means an award granted under Article IX of the Plan and
includes both Non-Incentive Options and Incentive Stock Options.
(q) "Plan" means this 1997 Stock Option Plan.
(r) "Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
(s) "Share" means a share of Stock.
(t) "Stock" means common stock of the Company as described in the
Articles of Incorporation.
(u) "Subsidiary" means "subsidiary corporation" as defined in ss.424(f)
of the Code.
(v) "Termination" means separation from employment with the Company or
any of its Subsidiaries for any reason except due to death.
(w) "Treasury" means the Department of the Treasury of the United
States of America.
ARTICLE I.
Designation and Purpose of the Plan
-----------------------------------
The Plan shall be known as the "International FiberCom, Inc. 1997 Stock
Option Plan." The purpose of the Plan is to provide additional incentives to
Employees and Non-Employee Directors of the Company to achieve financial results
aimed at increasing shareholder value and to attract and retain the best
available personnel for positions of responsibility within the Company through
the grant of options to purchase shares of the Company's Common Stock. The Plan
was approved by the Board on January 6, 1997 and is subject to the approval by
the shareholders of the Company. Subject to the determination of the Board or a
Committee appointed by the Board, Options granted under this Plan may be
Incentive Stock Options or Non-Incentive Options.
ARTICLE II.
Shares Available for Purchase
-----------------------------
A maximum of 1,200,000 authorized but unissued shares of the Company's
common stock may be issued upon the exercise of Options granted pursuant to the
Plan. Such Shares shall be deemed to have been used in the exercise of Options
whether actually delivered or whether the Fair Market Value equivalent of such
Shares is paid in cash. In the event that any Option granted under the Plan
expires or terminates for any reason whatsoever without having been exercised in
full, the Shares subject to, but not delivered under such Option shall become
available for other Options which may be granted under the Plan; or shall be
available for any other lawful corporate purpose.
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<PAGE>
ARTICLE III.
Limit on Value of Option Shares
-------------------------------
In the case of an Incentive Stock Option, the aggregate Fair Market
Value (determined as of the time such Option is granted) of the Shares with
respect to which the Incentive Stock Option is exercisable for the first time by
an individual during any calendar year (under all plans of the Company) shall
not exceed $100,000.
ARTICLE IV.
Determination of Fair Market Value
----------------------------------
As used herein the term "Fair Market Value" shall mean, with respect to
the date a given Option is granted or exercised, the value determined by the
Board or any Committee appointed in accordance with Article VI hereof in good
faith using a generally accepted valuation method and, in the case of an
incentive stock option, determined in accordance with applicable Treasury
regulations; provided, however, that where there is a public market for the
common stock of the Company, the Fair Market Value per share shall be the mean
of the final bid and asked prices of the Stock on the date of grant, as reported
in The Wall Street Journal (or, if not so reported, as otherwise reported by the
National Association of Securities Dealers Automated Quotation System) or, in
the event the stock is listed on a stock exchange, the fair market value per
share shall be the closing price on such exchange on the date of grant of the
option, as reported in The Wall Street Journal.
ARTICLE V.
Stock Options and Option Agreements
-----------------------------------
(a) Stock Options under the Plan may be of two types: Incentive Stock
Options and Non-Incentive Options. Any Stock Option granted under the Plan will
be in such form as the Board may from time to time approve. The Board will have
the authority to grant any optionee Incentive Stock Options, Non-Incentive
Options or both types of Options. The Date of Grant of an Option will be the
date the Board by resolution selects an individual to be a participant in any
grant of an Option, determines the number of Shares to be subject to such Option
to be granted to such individual and specifies the terms and provisions of the
Option. Incentive Stock Options may only be granted to Eligible Employees. To
the extent that any Option is not designated as an Incentive Stock Option or
even if so designated does not qualify as an Incentive Stock Option, it will be
deemed to be a Non-Incentive Option. The Board may grant Non-Incentive Options
to Non-Employee Directors under
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<PAGE>
the Plan. Anything in the Plan to the contrary notwithstanding, no term of the
Plan relating to Incentive Stock Options will be interpreted, amended or altered
nor shall any discretion or authority granted under the Plan be exercised so as
to disqualify the Plan under ss.422 of the Code or, without the consent of the
optionee, to disqualify any Incentive Stock Option under such ss.422.
(b) Each Option granted under the Plan shall be evidenced by an option
agreement ("Option Agreement"), which shall indicate on its face whether it is
an agreement for an Incentive Stock Option or a Non-Incentive Option, or both
and shall be signed by an officer of the Company on behalf of the Company and by
the employee who was granted the Option and which shall contain such provisions
as may be approved by the Board or any Committee appointed by the Board
according to Article VI. The provisions shall be subject to the following terms
and conditions:
(i) Any Option or portion thereof that is exercisable shall be
exercisable as to such number of Shares and at such times as set forth
in the Stock Option Agreement, except as limited by the terms of the
Plan heretofore;
(ii) Every Share purchased through the exercise of an Option
shall be paid for in full at the time of the exercise. Each Option
shall cease to be exercisable, as to any Share, when the Holder
purchases the Share, or when the Option lapses;
(iii) Options shall not be transferable by the Holder except
by will or the laws of descent and distribution and shall be
exercisable during the Holder's lifetime only by the Holder; and
(iv) An unexpired Option shall become immediately exercisable
(1) automatically on the Holder's Normal Termination, (2) at the
discretion of the Board, in whole or in part, on the date the Holder
becomes eligible to receive early retirement benefits, as defined under
the retirement plan of the Company then in effect, (3) upon any change
in control of the Company, and (4) under such other circumstances as
the Board may direct.
(c) The Option Agreements shall constitute binding contracts between
the Company and the employee. Every employee, upon acceptance and execution of
such option agreement, shall be bound by the terms and conditions of this Plan
and of the Option Agreement.
(d) The terms and conditions of the Option Agreement shall be in
accordance with this Plan, but may include additional provisions and
restrictions, provided that the same are not inconsistent with the Plan.
ARTICLE VI.
Compensation and Stock Option Committee
---------------------------------------
The Plan shall be administered by the Board or a Committee appointed by
the Board in accordance with Rule 16b-3 of the Exchange Act ("Rule 16b-3"). Any
Committee which has been delegated the duty of administering the Plan by the
Board shall be composed of two or more persons each of whom (i) is a
Non-Employee Director and (ii) is an "outside director" as defined in
Section 162(m)(4) of the Code. To the extent reasonable and practicable, the
Plan shall be consistent with the provisions of Rule 16b-3 to the degree
necessary to ensure that transactions authorized pursuant to the Plan are exempt
from the operation of Section 16(b) of the Exchange Act. If such a Committee is
appointed, the Committee shall have the same power and authority to construe,
interpret and administer the Plan and from time to time adopt such rules and
regulations for carrying out this Plan as it may deem proper and in the best
interests of the Company as does the Board. Any reference herein to the Board
shall, where appropriate, encompass a Committee appointed to administer the Plan
in accordance with this Article VI.
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<PAGE>
The Board shall, from time to time, in its discretion, determine which
of the Eligible Employees are to be granted Options and the form, amount and
timing of such Options and, unless otherwise provided herein, the terms and
provisions thereof and the form of payment of an Option, if applicable, and such
other matters specifically delegated to It under this Plan. Subject to the
express provisions of the Plan, the Board shall have authority to interpret the
Plan and Options granted hereunder, to prescribe, amend and rescind rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable in administering the Plan, all of which determinations shall be
final and binding upon all persons. A quorum of the Board shall consist of a
majority of its members and the Board may act by vote of a majority of its
members at a meeting at which a quorum is present, or without a meeting by a
written consent to the action taken signed by all members of the Board. No
member of the Board shall be liable for any action, interpretation or
construction made in good faith with respect to the Plan or any Option granted
hereunder.
ARTICLE VII.
Option Price
------------
The Option price at which Shares may be purchased under an Option
granted pursuant to this Plan shall be set by the Board, but shall in no
instance be less than the Fair Market Value of such Shares on the Date of Grant
in the case of Incentive Stock Options. Such Fair Market Value shall be
determined by the criteria set forth in Article IV hereof. The Option price will
be subject to adjustments in accordance with provisions of Article X herein.
In the event that an employee granted an Incentive Stock Option
hereunder owns, directly or indirectly, immediately after such grant, more than
10% of the total combined voting power of all classes of the issued and
outstanding stock of the company, the option price shall be at least 110% of the
Fair Market Value of the stock subject to the Option and such Option by its
terms shall not be exercisable after the expiration of five (5) years from the
date such Option is granted.
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<PAGE>
ARTICLE VIII.
Exercise of Option
------------------
(a) Subject to the provisions of Articles VII and IX the period during
which each Option may be exercised shall be fixed by the Board at the time such
Option is granted, subject to the following rules:
(i) such Option is granted within ten (10) years from the date
the Plan is adopted, or the date such Plan is approved by the
stockholders, whichever is earlier;
(ii) such Option by its terms is not exercisable after the
expiration of ten (10) years (in the case if Incentive Stock Options,
not to exceed five years for Eligible Employees owning 10% or more of
the combined voting power of all classes of stock of the Company) from
the Date of Grant as shall be set forth in the Stock Option Agreement
relating to such grant; and,
(iii) such Option by its terms states that a person's rights
and interests under the Plan, including amounts payable, may not be
assigned, pledged, or transferred except, in the event of an employee's
death, to a designated beneficiary as provided in the Plan, or in the
absence of such designation, by will or the laws of descent and
distribution.
(b) An Option shall lapse under the following circumstances:
(i) Ten (10) years after it is granted, three months after
Normal Termination, twelve months after the date of Termination if due
to permanent disability, three months after any other Termination or
any earlier time set by the grant.
(ii) If the Holder dies within the Option period, the Option
shall lapse unless it is exercised within the Option period and in no
event later than twelve months after the date of his death by the
Holder's legal representative or representatives or by the person or
persons entitled to do so under the Holder's last will and testament
or, if the Holder shall fail to make testamentary disposition of such
Option or shall die intestate, by the person or persons entitled to
receive said Option under the applicable laws of descent and
distribution.
(iii) Notwithstanding the foregoing, in no event shall the
period of exercise be less than thirty days after Normal Termination or
the death of the Holder; provided, however, that in no event shall an
Incentive Stock Option be exercised more than ten years after the Date
of Grant.
(c) No Shares shall be delivered pursuant to any exercise of an Option
until the requirements of such laws and regulations, as may be deemed by the
Board to be applicable, are satisfied and until payment in full of the option
price specified in the applicable Stock Option Agreement is received by the
Company. No employee shall be deemed to be an owner of any Shares subject to any
Option unless and until the certificate or certificates for them have been
issued, as reflected on the stock record and transfer books of the Company.
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<PAGE>
ARTICLE IX.
Eligibility
-----------
All employees of the Company, including officers and directors who are
salaried employees, shall be Eligible Employees eligible to participate under
this Plan. The fact that an employee has been granted an Option under this Plan
shall not in any way affect or qualify the right of the employee to terminate
his employment at any time. Nothing contained in this Plan shall be construed to
limit the right of the Company to grant Options otherwise than under the Plan
for any proper and lawful corporate purpose, including but not limited to
Options granted to employees. Employees to whom Options may be granted under the
Plan will be those selected by the Committee from time to time who, in the sole
discretion of the Committee, have contributed in the past or who may be expected
to contribute materially in the future to the successful performance of the
Company.
ARTICLE X.
Capital Adjustments Affecting Stock
-----------------------------------
(a) If the outstanding Stock of the Company shall at any time be
changed or exchanged by declaration of a stock dividend, split-up, combination
of Shares, recapitalization, merger, consolidation, or other corporate
reorganization in which the Company is the surviving corporation, the number and
kind of Shares subject to the Plan or subject to any Options theretofore
granted, and the Option prices, shall be appropriately and equitably adjusted so
as to maintain the proportionate number of Shares without changing the aggregate
Option price and the Board may make any other adjustments as the Board deems
appropriate for purposes of the Plan. The determination of the Board as to the
terms of any adjustment shall be conclusive except to the extent governed by
Treasury regulations applicable to Incentive Stock Options.
(b) In the event of a liquidation or dissolution of the Company, sale
of all or substantially all of its assets, or a merger, consolidation or other
corporate reorganization in which the Company is not the surviving corporation,
or any merger or other reorganization in which the Company is the surviving
corporation but the holders of its Stock receive securities of another
corporation, or in the event a person makes a tender offer to the stockholders
of the Company, the Board may, but need not, accelerate the time at which
unexercised Options may be exercised. Nothing herein contained shall prevent the
substitution of a new Option by the surviving or acquiring corporation.
ARTICLE XI.
Amendments, Suspension or Termination
-------------------------------------
(a) The Board shall have the right, at any time, to amend, suspend or
terminate the Plan, and if suspended, reinstate the Plan in whole or in part in
any respect which it may deem to be in the best interests of the Company,
provided, however, no amendments shall be made in the Plan which:
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<PAGE>
(i) Increase the total number of Shares for which Options may
be granted under this Plan for all employees or for any one of them
except as provided in Article X;
(ii) Change the minimum purchase price for the optioned
Shares, except as provided in Article X;
(iii) Affect outstanding Options or any unexercised rights
thereunder, except as provided in Article VIII;
(iv) Extend the option period provided in Article VIII or make
an Option exercisable earlier than as specified in Article VIII; or
(v) Extend the termination date of the Plan.
(b) The Board shall also have the right, with the express written
consent of an individual participant, to cancel, reduce or otherwise alter such
participant's outstanding Options under the Plan.
(c) Any such amendment, termination, suspension, cancellation,
reduction or alteration shall be further approved by the shareholders of the
Company if such approval is required to preserve or comply with any exemption,
whether under Rule 16b-3 or otherwise, from Section 16(b) of the Exchange Act or
to preserve the status of Incentive Stock Options within the meaning of ss.422
of the Code.
ARTICLE XII.
Repurchase of Shares
--------------------
Any time during an Optionee's employment with the Company, an Optionee
who has purchased shares of Common Stock upon exercise of Options granted
pursuant to this Plan, may, in writing, offer for sale to the Company such
Common Stock at the purchase price determined under the respective Stock Option
Agreement. If the Company does not acquire such Common Stock, the Optionee may
not, while he is in the employ of the Company, sell, transfer, gift, pledge,
encumber, burden or otherwise dispose of all or any portion of such Common Stock
to any other person or entity.
In the event that the employment of an employee is terminated or does
terminate, for any reason, including death, then in that event, to the extent
that Options have been exercised in whole or in part prior to the date of such
termination, the employee (or, if applicable, his assigns, heirs, successors,
administrators or executors) shall be required to sell back his Shares to the
Company upon such terms and conditions as determined by the Committee and as
reflected in the Option Agreement.
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<PAGE>
ARTICLE XIII.
Effective Date, Term and Approval
---------------------------------
The effective date for this Plan shall be upon approval by the
stockholders. Options may be granted as provided herein for a period of ten
years after such date unless an earlier termination date after which no Options
may be granted under the Plan is fixed by action of the Board, but any Option
granted prior thereto may be exercised in accordance with its terms. The grant
of any Options under the Plan is effective only upon approval of the Plan by the
stockholders. The Plan and all Options granted pursuant to it are subject to all
laws, approvals, requirements, and regulations of any governmental authority or
securities exchange which may be applicable thereto and, notwithstanding any
provisions of the Plan or option agreement, the Holder of an Option shall not be
entitled to exercise his Option nor shall the Company be obligated to issue any
Shares to the Holder if such exercise or issuance shall constitute a violation
by the Holder or the Company of any provisions of any such laws, approvals,
requirements, or regulations. The Plan shall continue in effect until all
matters relating to the payment of Options granted under the Plan and
administration of the Plan have been settled.
ARTICLE XIV
General
-------
(a) Government and Other Regulations. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act,
the Exchange Act, and the requirements of any stock exchange upon which the
Shares may then be listed and shall be further subject to the approval of
counsel for the Company with respect to such compliance. Inability of the
Company to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
(b) Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
(c) Tax Withholding. The employee or other person receiving Stock upon
exercise of an Option may be required to pay to the Company or to a Subsidiary,
as appropriate, the amount of any such taxes which the Company or Subsidiary is
required to withhold with respect to such Stock.
-9-
<PAGE>
In connection with such obligation to withhold tax, the Company may defer making
delivery of such Stock unless and until indemnified on such withholding
liability to its satisfaction.
(d) Claim to Options and Employment Rights. No employee or other person
shall have any claim or right to be granted an Option under the Plan. Neither
this Plan nor any action taken hereunder shall be construed as giving any
employee any right to be retained in the employ of the Company or a Subsidiary.
(e) Beneficiaries. Any payment of Options due under this Plan to a
deceased participant shall be paid to the beneficiary designated by the
participant and filed with the Board. If no such beneficiary has been designated
or survives the participant, payment shall be made to the participant's legal
representative. A beneficiary designation may be aged or revoked by a
participant at any time provided the change or revocation is filed with the
Board. The designation by a married participant of one or more persons other
than the participant's spouse must be consented to by the spouse.
(f) Nontransferability. A person's rights and interests under the Plan,
including amounts payable, may not be assigned, pledged, or transferred except,
in the event of an employee's death, to a designated beneficiary as provided in
the Plan, or in the absence of such designation, by will or the laws of descent
and distribution.
(g) Indemnification. Each person who is or shall have been a member of
the Board shall be indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by him in connection with or resulting from any claim, action, suit, or
proceeding to which he may be a party or in which he may be involved by reason
of any action or failure to act under the Plan and against and from any and all
amounts paid by him in satisfaction of judgment in such action, suit, or
proceeding against him. He shall give the Company an opportunity, at its own
expense, to handle and defend the same before he undertakes to handle and defend
it on his own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Bylaws or Articles of Incorporation, as a matter of
law, or otherwise, or any power that the Company may have to indemnify them or
hold them harmless.
(h) Reliance on Reports. Each member of the Board shall be fully
justified in relying or acting in good faith upon any report made by the
independent public accountants of the Company and its Subsidiaries and upon any
other information furnished in connection with the Plan by any person or persons
other than himself. In no event shall any person who is or shall have been a
member of the Board be liable for any determination made or other action taken,
including the furnishing of information, or failure to act, if in good faith.
(i) Relationship to Other Benefits. No payment under the Plan shall be
taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or other benefit plan of the
Company or any Subsidiary.
(j) Expenses. The expenses of administering the Plan shall be borne by
the Company and its Subsidiaries.
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(k) Pronouns. Masculine pronouns and other words of masculine gender
shall refer to both men and women.
(l) Titles and Headings. The titles and headings of the Sections in the
Plan are for convenience of reference only, and in the event of any conflict,
the text of the Plan, rather than such titles or headings, shall control.
(m) Fractional Shares. No fractional Shares shall be issued and the
Board shall determine whether cash shall be given in lieu of fractional Shares
or whether such fractional Shares shall be eliminated by rounding up or rounding
down unless otherwise provided in the Plan.
(n) Construction of Plan. The place of administration of the Plan shall
be in the State of Arizona, and the validity, construction, interpretation,
administration and effect of the Plan and of its rules and regulations, and
rights relating to the Plan, shall be determined in accordance with the laws of
the State of Arizona.
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INTERNATIONAL FIBERCOM, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - PURPOSE
1.1 Purpose. The International FiberCom, Inc. Employee Stock Purchase
Plan is intended to provide a method whereby employees of International
FiberCom, Inc. and its subsidiary corporations (hereinafter referred to, unless
the context otherwise requires, as the "Company") will have an opportunity to
acquire a proprietary interest in the Company through the purchase of shares of
the Common Stock of the Company. It is the intention of the Company to have the
Plan qualify as an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
ARTICLE II - DEFINITIONS
2.1 Base Pay. "Base Pay" shall mean regular straight-time earnings
excluding payments for overtime, shift premium, bonuses and other special
payments, commissions and other marketing incentive payments.
2.2 Committee. "Committee" shall mean the individuals described in
Article XI.
2.3 Employee. "Employee" means any person who is customarily employed
on a full-time or part-time basis by the Company and is regularly scheduled to
work more than 20 hours per week.
2.4 Subsidiary Corporation. "Subsidiary Corporation" shall mean any
present or future corporation which (i) would be a "Subsidiary Corporation" of
Company as that term is defined in Section 424(f) of the Code and (ii) is
designated as a participant in the Plan by the Committee.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.1 Initial Eligibility. Any Employee who shall have completed ninety
(90) days' employment and shall be employed by the Company on the date his
participation in the Plan is to become effective shall be eligible to
participate in offerings under the Plan which commence on or after such ninety
day period has concluded.
3.2 Leave of Absence. For purposes of participation in the Plan, a
person on leave of absence shall be deemed to be an Employee for the first 90
days of such leave of absence and such Employee's employment shall be deemed to
have terminated at the close of business on the 90th day of such leave of
absence unless such Employee shall have returned to regular full-time or
part-time employment (as the case may be) prior to the close of business on such
90th day.
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Termination by the Company of any Employee's leave of absence, other than
termination of such leave of absence on return to full-time or part-time
employment, shall terminate an Employee's employment for all purposes of the
Plan and shall terminate such Employee's participation in the Plan and right to
exercise any option.
3.3 Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall be granted an option to participate
in the Plan:
(a) if, immediately after the grant, such Employee 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 (for purposes of this paragraph, the rules of
Section 424(d) of the Code shall apply in determining stock ownership
of any Employee); or
(b) which permits his rights to purchase stock under all
Employee stock purchase plans of the Company to accrue at a rate which
exceeds $25,000 in fair market value of the stock (determined at the
time such option is granted) for the calendar year in which such option
is granted.
3.4 Commencement of Participation. An eligible Employee may become a
participant by completing an authorization for a payroll deduction on the form
provided by the Company and filing it with the office of the Treasurer of the
Company on or before the date set therefor by the Committee, which date shall be
prior to the Offering Commencement Date for the Offering (as such terms are
defined below). Payroll deductions for a Participant shall commence on the
applicable Offering Commencement Date when his authorization for a payroll
deduction becomes effective and shall end on the Offering Termination Date of
the Offering to which such authorization is applicable unless sooner terminated
by the participant as provided in Article VIII.
ARTICLE IV - OFFERINGS
4.1 Annual Offerings. The Plan will be implemented by annual offerings
of the Company's Common Stock (the "Offerings") beginning on the 1st day of
January in each year, each Offering terminating on December 31 of the same year;
provided, however, that each annual Offering may, in the discretion of the
Committee exercised prior to the commencement thereof, be divided into two
six-month Offerings commencing, respectively, on January 1 and July 1 of such
year and terminating on June 30 of such year and December 31 of such year,
respectively; and provided further, however, there shall be a short Offering
period beginning August 1, 1997 and ending December 31, 1997 ("Short Offering
Period").
ARTICLE V - PAYROLL DEDUCTIONS
5.1 Amount of Deduction. At the time a participant files his
authorization for payroll deduction, he shall elect to have deductions made from
his pay on each payday during the time he is a participant in an Offering at the
rate of from 1% to 15%, in whole percent increments, of his Base Pay in effect
at the Offering Commencement Date of such Offering; provided, however, for the
Short Offering Period, a participant may elect to have deductions made from his
pay on each pay day during the time he is a participant in the Offering at the
rate of from 1% to 18% of his Base Pay at the Offering Commencement Date of
August 1, 1997. In the case of a part-time hourly Employee, such Employee's Base
Pay during an Offering shall be determined by multiplying such Employee's hourly
rate of pay in effect on the Offering Commencement Date by the number of
regularly scheduled hours of work for such Employee during such Offering.
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5.2 Participant's Account. All payroll deductions made for a
participant shall be credited to his account under the Plan. A participant may
not make any separate cash payment into such account except when on leave of
absence as provided in Section 5.4 of the Plan or as lump sum payment as
provided in Section 5.5.
5.3 Changes in Payroll Deductions. A participant may discontinue his
participation in the Plan as provided in Article VIII, but no other change can
be made during an Offering and, specifically, a participant may not alter the
amount of his payroll deductions or lump sum payment pursuant to Section 5.5 for
that Offering.
5.4 Leave of Absence. If a participant goes on a leave of absence, such
participant shall have the right to elect: (a) to withdraw the balance in his or
her account pursuant to Section 7.2 of the Plan, (b) to discontinue
contributions to the Plan but remain a participant in the Plan, or (c) to remain
a participant in the Plan during such leave of absence, authorizing deductions
to be made from payments by the Company to the participant during such leave of
absence and undertaking to make cash payments to the Plan at the end of each
payroll period to the extent that amounts payable by the Company to such
participant are insufficient to meet such participant's authorized Plan
deductions.
5.5 Lump Sum Payment Option. Notwithstanding the foregoing provisions
of this Article V, a participant may elect prior to the Offering Commencement
Date of any Offering period to pay a fixed sum for shares to be paid as a lump
sum payment to be made prior to Offering Termination Date; provided, however, in
no event, shall such amount exceed the amount that could be deferred for payment
if the maximum rate for payroll deductions were elected by the participant.
ARTICLE VI - GRANTING OF OPTION
6.1 Number of Option Shares. On the Commencement Date of each Offering,
a participating Employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the stock of the Company equal to an
amount determined as follows: an amount equal to (a) that percentage of the
Employee's Base Pay which he has elected to have withheld (but not in any case
in excess of 15%, except for the Short Offering Period, in which case not in
excess of 18%), multiplied by (b) the Employee's Base Pay during the period of
the Offering (c) divided by 85% of the lower of the closing price of the stock
of the Company on the applicable Offering Commencement Date or the Offering
Termination Date, as set forth in Section 6.2; provided, however, in the case of
a lump sum payment pursuant
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to Section 5.5, such maximum number of shares shall equal to (a) the total lump
sum payment, divided by (b) above. The market value of the Company's stock shall
be determined as provided in paragraphs (a) and (b) of Section 6.2 of the Plan
below. An Employee's Base Pay during the period of an Offering shall be
determined by multiplying, in the case of a one-year Offering, his nominal
weekly rate of pay (as in effect on the last day prior to the Commencement Date
of the particular Offering) by 52 or the hourly rate by 2,080 or, in the case of
a six-month Offering, by 26 or 1040, or as similarly adjusted for the Short
Offering Period commencing July 21, 1997, as the case may be, provided that, in
the case of a part-time hourly Employee, the Employee's Base Pay during the
period of an Offering shall be determined by multiplying such Employee's hourly
rate by the number of regularly scheduled hours of work for such Employee during
such Offering.
6.2 Option Price. The option price of stock purchased with payroll
deductions made during such annual Offering for a participant therein shall be
the lower of:
(a) 85% of the closing price of the stock on the Offering
Commencement Date or the nearest prior business day on which trading
occurred on the NASDAQ National Market System, the NASDAQ SmallCap
Market or any national securities exchange; or
(b) 85% of the closing price of the stock on the Offering
Termination Date or the nearest prior business day on which trading
occurred on the NASDAQ National Market System, the NASDAQ SmallCap
Market or any national securities exchange. If the Common Stock of the
Company is not admitted to trading on any of the aforesaid dates for
which closing prices of the stock are to be determined, then reference
shall be made to the fair market value of the stock on that date, as
determined on such basis as shall be established or specified for the
purpose by the Committee.
ARTICLE VII - EXERCISE OF OPTION
7.1 Automatic Exercise. Unless a participant gives written notice to
the Company as hereinafter provided, his option for the purpose of stock with
payroll deductions made during any Offering will be deemed to have been
exercised automatically on the Offering Termination Date applicable to such
Offering, for the purchase of the number of full shares of stock which the
accumulated payroll deductions in his account at that time will purchase at the
applicable option price (but not in excess of the number of shares for which
options have been granted to the Employee pursuant to Section 6.1 of the Plan),
and any excess in his account at that time will be returned to him.
7.2 Withdrawal of Account. By written notice to the Treasurer of the
Company, at any time prior to the Offering Termination Date applicable to any
Offering, a participant may elect to withdraw all the accumulated payroll
deductions in his account at such time.
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7.3 Fractional Shares. Fractional shares will not be issued under the
Plan. Any accumulated payroll deduction which would have been used to purchase
fractional shares will be returned to the participant's account following the
termination of an Offering, without interest.
7.4 Transferability of Option. During a participant's lifetime, options
held by such Participant shall be exercisable only by that participant.
7.5 Delivery of Stock. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each participant,
as appropriate, the stock purchased upon exercise of his option.
ARTICLE VIII - WITHDRAWAL
8.1 In General. As indicated in Section 7.2 of the Plan, a participant
may withdraw payroll deductions or lump sum payments credited to his account
under the Plan at any time by giving written notice to the Treasurer of the
Company. All of the participant's payroll deductions and any lump sum payments
credited to his account will be paid to him promptly after receipt of his notice
withdrawal, and no further payroll deductions will be made from his pay during
such Offering. The Company may, at its option, treat an attempt to borrow by an
Employee on the security of his accumulated payroll deductions or lump sum
payments as an election to withdraw such deductions.
8.2 Effect on Subsequent Participation. A participant's withdrawal from
any Offering will not have any effect on his eligibility to participate in any
succeeding Offering or in any similar plan which may hereafter be adopted by the
Company.
8.3 Termination Of Employment. Upon termination of the participant's
employment for any reason, including retirement (but excluding death while in
the employ of the Company or continuation of a leave of absence for a period
beyond 90 days), the payroll deductions or lump sum payments credited to his
account will be returned to him, or, in the case of his death subsequent to the
termination of his employment, to the person or persons entitled thereto under
Section 12.1 of the Plan.
8.4 Termination of Employment Due to Death. Upon termination of the
participant's employment because of his death, his beneficiary (as defined in
Section 12.1 of the Plan) shall have the right to elect, by written notice given
to the Treasurer of the Company prior to the earlier of the Offering Termination
Date or the expiration of a period of sixty (60) days commencing with the date
of the death of the participant, either:
(a) to withdraw all of the payroll deductions or lump sum
payments credited to the participant's account under the Plan, or
(b) to exercise the participant's option for the purchase of
stock on the Offering Termination Date next following the date of the
participant's death for the
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purchase of the number of full shares of stock which the accumulated
payroll deductions or lump sum payments in the participant's account at
the date of the participant's death will purchase at the applicable
option price, and any excess in such account will be returned to said
beneficiary, without interest.
In the event that no such written notice of election shall be duly
received by the office of the Treasurer of the Company, the beneficiary shall
automatically be deemed to have elected, pursuant to paragraph (b), to exercise
the participant's option.
8.5 Leave of Absence. A participant on leave of absence shall, subject
to the election made by such participant pursuant to Section 5.4 of the Plan,
continue to be a participant in the Plan so long as such participant is on
continuous leave of absence. A Participant who has been on leave of absence for
more than 90 days and who therefore is not an Employee for the purpose of the
Plan shall not be entitled to participate in any Offering commencing after the
90th day of such leave of absence. Notwithstanding any other provisions of the
Plan, unless a participant on leave of absence returns to regular full-time or
part-time employment with the Company at the earlier of: (a) the termination of
such leave of absence or (b) three months from the 90th day of such leave of
absence, such participant's participation in the Plan shall terminate on
whichever of such dates first occurs.
ARTICLE IX - INTEREST
9.1 Payment of Interest. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any participant Employee;
provided, however, that interest shall be paid on any and all money which is
distributed to an Employee or his beneficiary pursuant to the provisions of
Sections 7.2, 8.1, 8.3, 8.4 and 10.1 of the Plan. Such distributions shall bear
simple interest during the period from the date of withholding or lump sum
payments to the date of return at the regular passbook savings account rates per
annum in effect at Bank One, Arizona, during the applicable Offering period or,
if such rates are not published or otherwise available for such purpose, at the
regular passbook savings account rates per annum in effect during such period at
another major commercial bank in Phoenix, Arizona selected by the Committee.
Where the amount returned represents an excess amount in an Employee's account
after such account has been applied to the purchase of stock, the Employee's
account shall be deemed to have been applied first toward purchase of stock
under the Plan, so that interest shall be paid on the last withholdings during
the period which results in the excess amount.
ARTICLE X - STOCK
10.1 Maximum Shares. The maximum number of shares which shall be issued
under the Plan, subject to adjustment upon changes in capitalization of the
Company as provided in Section 12.4 of the Plan shall be 2,000,000 shares to be
made available for such Offerings as the Company elects. If the total number of
shares for which options are exercised on any Offering Termination Date in
accordance with Article VI exceeds the maximum number of shares for the
applicable Offering, the Company shall make a pro rata allocation of the shares
available for
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<PAGE>
delivery and distribution in an nearly a uniform manner as shall be practicable
and as it shall determine to be equitable, and the balance of payroll deductions
or lump sum payments credited to the account of each participant under the Plan
shall be returned to him as promptly as possible.
10.2 Participant's Interest in Option Stock. The participant will have
no interest in stock covered by his option until such option has been exercised.
10.3 Registration of Stock. Stock to be delivered to a participant
under the Plan will be registered in the name of the participant, or, if the
participant so directs by written notice to the Treasurer of the Company prior
to the Offering Termination Date applicable thereto, in the names of the
participant and one such other person as may be designated by the participant,
as joint tenants with rights of survivorship or as tenants by the entireties, to
the extent permitted by applicable law.
10.4 Restrictions on Exercise. The Board of Directors may, in its
discretion, require as conditions to the exercise of any option that the shares
of Common Stock reserved for issuance upon the exercise of the option shall have
been duly listed, upon official notice of issuance, upon a stock exchange, and
that either:
(a) a Registration Statement under the Securities Act of 1933,
as amended, with respect to said shares shall be effective, or
(b) the participant shall have represented at the time of
purchase, in form and substance satisfactory to the Company, that it is
his intention to purchase the shares for investment and not for resale
or distribution.
ARTICLE XI - ADMINISTRATION
11.1 Appointment of Committee. The Plan shall be administered by a
Committee appointed by the Board to administer the Plan at any time or from time
to time. If the Company has a class of equity securities registered under
Section 12 of the Exchange Act, the Plan shall be administered by a Committee
appointed by the Board in accordance with Rule 16b-3 of the Exchange Act ("Rule
16b-3"). Any Committee which has been delegated the duty of administering the
Plan by the Board shall be composed of two or more persons each of whom (i) is a
non-Employee Director and (ii) is an "outside director" as that term is used in
ss.162(m)(4) of the Code. To the extent reasonable and practicable, the Plan
shall be consistent with the provisions of Rule 16b-3 to the degree necessary to
ensure that transactions authorized pursuant to the Plan are exempt from the
operation of Section 16(b) of the Exchange Act. No member of the Committee shall
be eligible to purchase stock under the Plan.
11.2 Authority of Committee. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all
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other determinations deemed necessary or advisable for administering the Plan.
The Committee's determination on the foregoing matters shall be conclusive.
11.3 Rules Governing the Administration of the Committee. The Board of
Directors may from time to time appoint members of the Committee in substitution
for or in addition to members previously appointed and may fill vacancies,
however caused, in the Committee in accordance with the terms of Section 11.1.
The Committee may select one of its members as its Chairman and shall hold its
meetings at such times and places as it shall deem advisable and may hold
telephonic meetings. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members. The
Committee may correct any defect or omission or reconcile any inconsistency in
the Plan, in the manner and to the extent it shall deem desirable. Any decision
or determination reduced to writing and signed by a majority of the members of
the Committee shall be as fully effective as if it had been made by a majority
vote at a meeting duly called and held. The Committee may appoint a secretary
and shall make such rules and regulations for the conduct of its business as it
shall deem advisable.
ARTICLE XII - MISCELLANEOUS
12.1 Designation of Beneficiary. A participant may file a written
designation of a beneficiary who is to receive any stock and/or cash. Such
designation of beneficiary may be changed by the participant at any time by
written notice to the Treasurer of the Company. Upon the death of a participant
and upon receipt by the Company of proof of identity and existence at the
participant's death of a beneficiary validly designated by him under the Plan,
the Company shall deliver such stock and/or cash to such beneficiary. In the
event of the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's death,
the Company shall deliver such stock and/or cash to the executor or
administrator of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such stock and/or cash to the spouse or to any
one or more dependents of the participant as the Company may designate. No
beneficiary shall, prior to the death of the participant by whom he had been
designated, acquire any interest in the stock or cash credited to the
participant under the Plan.
12.2 Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant other than by will or the
laws of descent and distribution. Any such attempted assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with Section 7.2
of the Plan.
12.3 Use of Funds. All payroll deductions received or held by the
Company under this Plan may be used by the Company for any corporate purpose and
the Company shall not be obligated to segregate such payroll deductions.
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12.4 Adjustment Upon Changes in Capitalization.
(a) If, while any options are outstanding, the outstanding
shares of Common Stock of the Company have increased, decreased, changed into,
or been exchanged for a different number or kind of shares or securities of the
Company through reorganization, merger, recapitalization, reclassification,
stock split, reverse stock split or similar transaction, appropriate and
proportionate adjustments may be made by the Committee in the number and/or kind
of shares which are subject to purchase under outstanding options and on the
option exercise price or prices applicable to such outstanding options. In
addition, in any such event, the number and/or kind of shares which may be
offered in the offerings described in Article IV hereof shall also be
proportionately adjusted. No adjustments shall be made for stock dividends. For
the purposes of this Paragraph, any distribution of shares to shareholders in an
amount aggregating 20% or more of the outstanding shares shall be deemed a stock
split and any distributions of shares aggregating less than 20% of the
outstanding shares shall be deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or
upon a reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all of the property or stock of the Company to
another corporation, the holder of each option then outstanding under the Plan
will thereafter be entitled to receive at the next Offering Termination Date
upon the exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common Stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with such transactions as the Board shall deem
necessary to assure that the provisions of this Section 12.4 shall thereafter be
applicable, as nearly as reasonably may be determined, in relation to the said
cash, securities and/or property as to which such holder of such option might
thereafter be entitled to receive.
12.5 Amendment and Termination. The Board of Directors shall have
complete power and authority to terminate or amend the Plan; provided, however,
that the Board of Directors shall not, without the approval of the stockholders
of the Corporation (a) increase the maximum number of shares which may be issued
under any Offering (except pursuant to Section 12.4 of the Plan); (b) amend the
requirements as to the class of Employees eligible to purchase stock under the
Plan or permit the members of the Committee to purchase stock under the Plan; or
(c) materially increase the benefits which may accrue to participants under the
Plan. No termination, modification, or amendment of the Plan may, without the
consent of an Employee then having an option under the Plan to purchase stock,
adversely affect the rights of such Employee under such option.
12.6 Effective Date. The Plan shall become effective as of July 21,
1997, subject to approval by the holders of the majority of the Common Stock
present and represented at a special or annual meeting of the shareholders held
on or before July 20, 1998. If the Plan is not so approved, the Plan shall not
become effective.
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12.7 No Employment Rights. The Plan does not, directly or indirectly,
create any right for the benefit of any Employee or class of employees to
purchase any shares under the Plan, or create in any Employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an Employee's employment at any time.
12.8 Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrators or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such Employee.
12.9 Governing Law. The law of the State of Arizona will govern all
matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
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INTERNATIONAL FIBERCOM, INC.
1997 RESTRICTED STOCK PLAN
1. Purposes of the Plan. The purposes of this Restricted Stock Plan are
to attract and retain the best available personnel for positions of
responsibility within the Company, to provide additional incentive to employees
and others who provide services to the Company, and to promote the success of
the Company's business through the grant of restricted shares of the Company's
Common Stock.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Award" shall mean a grant of one or more shares of
Restricted Stock.
(b) "Board" shall mean the Board of Directors of the Company
or, when appropriate, the Committee administering the Plan, if one has
been appointed.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(d) "Common Stock" shall mean the common stock of the Company
described in the Company's Certificate of Incorporation, as amended.
(e) "Company" shall mean INTERNATIONAL FIBERCOM, INC., an
Arizona corporation, and shall include any parent or subsidiary
corporation of the Company as defined in Sections 424(e) and (f),
respectively, of the Code.
(f) "Committee" shall mean the Committee appointed by the
Board in accordance with paragraph (a) of Section 4 of the Plan, if one
is appointed.
(g) "Employee" shall mean any person, including salaried
officers and directors, employed by the Company.
(h) "Exchange Act" shall mean the Securities and Exchange Act
of 1934, as amended.
(i) "Fair Market Value" shall mean, with respect to the date a
given Award is granted, the value of the Common Stock determined by the
Board in such manner as it may deem equitable for Plan purposes;
provided, however, that where there is a public market for the Common
Stock, the Fair Market Value per Share shall be the mean of the bid and
asked prices of the Common Stock on the date of grant, as reported in
the Wall Street Journal (or, if not so reported, as otherwise reported
in the National Association of Securities Dealers Automated Quotation
System) or, in the event the Common Stock is listed on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ/National
Market System, the Fair Market Value per Share shall be the closing
price on such exchange on the date of grant of the Award, as reported
in the Wall Street Journal.
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(j) "Grantee" shall mean an employee or other individual who
provides services to the Company who has been granted one or more
shares of Restricted Stock.
(k) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(l) "Plan" shall mean this 1997 Restricted Stock Plan.
(m) "Restricted Stock" shall mean Common Stock, issued and
outstanding, restricted as to transfer and subject to a substantial
risk of forfeiture.
(n) "Share" shall mean a share of the Common Stock, as
adjusted in accordance with Section 8 of the Plan.
(o) "Stock Purchase Agreement" shall mean the written
agreement between the Company and the Grantee relating to the grant of
an Award.
(p) "Subsidiary" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 424(f) of the
Code.
(q) "Tax Date" shall mean the date a Grantee is required to
pay the Company an amount with respect to tax withholding obligations
in connection with an Award.
3. Common Stock Subject to the Plan. Subject to the provisions of
Section 8 of the Plan, the maximum aggregate number of shares of Common Stock
which may be granted under the Plan may be determined by the Board of Directors
for issuance is the maximum number of shares reserved under the 1997 Stock
Option Plan of the Company. The Shares may be authorized, but unissued, or
previously issued Shares acquired by the Company and held in treasury. If
Restricted Stock is forfeited, the forfeited Shares shall, unless the Plan shall
have been terminated, be available for future grants under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) The Plan shall be administered by the Board in
accordance with Rule 16b-3 under the Exchange Act ("Rule
16b-3"); provided, however, that the Board may appoint a
Committee composed of "non-employee" directors, as that term
is defined in Rule 16b-3, to administer the Plan at any time
or from time to time.
(ii) Once appointed, the Committee shall continue to
serve until otherwise directed by the Board. From time to time
the Board may increase the size of the Committee and appoint
additional members thereof, remove members (with or without
cause), appoint new members in substitution therefor, and fill
vacancies however caused: provided, however, that at no time
may any person serve on the
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<PAGE>
Committee if that person does not satisfy the non-employee
director requirements of Rule 16b-3.
(b) Powers of the Board. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to
grant Restricted Stock; (ii) to determine, upon review of relevant
information and in accordance with Section 2 of the Plan, the Fair
Market Value of the Common Stock; (iii) to determine the Employees and
other individuals who provide services to the Company to whom, and the
time or times at which, Restricted Stock shall be granted and the
number of Shares to be represented by each Award; (iv) to interpret the
Plan; (v) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vi) to determine the terms and provisions of
each Award granted (which need not be identical) and, with the consent
of the Grantee thereof, modify or amend each Award; (vii) to accelerate
or defer (with the consent of the Grantee) the date of any Award;
(viii) to authorize any person to execute on behalf of the Company any
instrument required to effectuate the grant of an Award previously
granted by the Board; (ix) to accept or reject the election made by a
Grantee pursuant to Section 14 of the Plan; and (x) to make all other
determinations deemed necessary or advisable for the administration of
the Plan.
(c) Effect of Board's Decision. All decisions, determinations
and interpretations of the Board shall be final and binding on all
Grantees and any other holders of any Restricted Stock granted under
the Plan.
5. Eligibility. Consistent with the Plan's purposes, Restricted Stock
may be granted only to Employees and other individuals who provide services to
the Company as determined by the Board. An Employee or other individual who
provides services to the Company who has been granted Restricted Stock may, if
he is otherwise eligible, be granted additional Restricted Stock.
6. Stockholder Approval and Effective Dates. The Plan became effective
upon approval by the Board. No Award may be granted under the Plan after January
5, 2007 (ten years from the effective date of the Plan).
7. Restricted Stock.
(a) Awards. The Committee may award Restricted Stock to any
Employee or other individual who provides services to the Company. Each
certificate for Restricted Stock shall be registered in the name of the
Grantee and deposited by him, together with a stock power endorsed in
blank, with the Company. Restricted Stock shall be awarded by a signed
written agreement containing such terms and conditions as the Board may
determine. At the time of an award there shall be established a
restriction period of such length as shall be determined by the Board.
Shares of Restricted Stock shall not be sold, assigned, transferred,
pledged or otherwise encumbered, except as hereinafter provided, during
the restriction period. Except for such restrictions on transfer, the
Grantee as owner of such shares of Restricted Stock shall have all the
rights of a holder of Common Stock. At the expiration of the
restriction period, the Company shall redeliver to the Grantee (or his
legal representative or designated beneficiary) the Restricted Stock
deposited pursuant to this paragraph 7.
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<PAGE>
(b) Termination. If a Grantee ceases to be an Employee or to
provide services to the Company with the consent of the Board, or upon
his death, retirement or total and permanent disability, the
restriction imposed under paragraph 7(a) shall lapse with respect to
such number of shares of Restricted Stock theretofore awarded to him as
shall be determined by the Board.
8. Adjustments Upon Changes in Capitalization or Merger. Subject to any
required action by the stockholders of the Company, the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Award has yet been granted or which have been returned to the Plan upon
cancellation, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect and no adjustment by
reason thereof, shall be made with respect to the number or price of shares of
Common Stock subject to the Plan.
9. Time of Granting Restricted Stock. The date of grant of Restricted
Stock shall, for all purposes, be the date on which the Board makes the
determination granting such Restricted Stock. Notice of the determination shall
be given to each Employee or other individual who provides services to the
Company to whom an Award is so granted within a reasonable time after the date
of such grant.
10. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or
terminate the Plan from time to time in such respects as the Board may
deem advisable; provided, however, that the following revisions or
amendments shall require approval of the shareholders of the Company,
to the extent required by law, rule or regulation:
(i) Any material increase in the number of Shares
subject to the Plan, other than in connection with an
adjustment under Section 8 of the Plan;
(ii) Any material change in the designation of the
Employees or other individuals who provide services to the
Company eligible to be granted Restricted Stock; or
(iii) Any material increase in the benefits accruing
to participants under the Plan.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Restricted Stock already
granted and such Restricted Stock shall
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<PAGE>
remain in full force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the Grantee and
the Board, which agreement must be in writing and signed by the Grantee
and the Company.
11. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to this Plan unless the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further subject
to the approval of counsel for the Company with respect to such compliance.
As a condition to the grant of Restricted Stock the Company may
require the Grantee to represent and warrant at the time of any such grant that
the Shares are being acquired only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
Inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
12. Reservation of Shares. The Company will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
13. Purchase Agreement. Restricted Stock shall be evidenced by Stock
Purchase Agreements in such form as the Board shall approve. If the Grantee is
an officer or director of the Company, the stock purchase agreement awarding
Restricted Stock to such individual shall state whether the election
contemplated under Section 14 is permissible.
14. Withholding Taxes. Subject to Section 4(b)(ix) of the Plan and
prior to the Tax Date, the Grantee may make an irrevocable election to have the
Company withhold from those Shares that would otherwise be received upon the
grant, a number of Shares having a Fair Market Value equal to the minimum amount
necessary to satisfy the Employee's portion of the Company's federal, state,
local and foreign tax withholding obligations and FICA and FUTA obligations with
respect to the grant of Restricted Stock to the Grantee.
15. Miscellaneous Provisions.
(a) Plan Expense. Any expense of administering this Plan shall
be borne by the Company.
(b) Construction of Plan. The place of administration of the
Plan shall be in the State of Arizona, and the validity, construction,
interpretation, administration and effect of the Plan and of its rules
and regulations, and rights relating to the Plan, shall be determined
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<PAGE>
in accordance with the laws of the State of Arizona without regard to
conflict of law principles and, where applicable, in accordance with
the Code.
(c) Taxes. The Company shall be entitled if necessary or
desirable to pay or withhold the amount of any tax attributable to the
delivery of Common Stock under the Plan from other amounts payable to
the Grantee after giving the person entitled to receive such Common
Stock notice as far in advance as practical, and the Company may defer
making delivery of such Common Stock if any such tax may be pending
unless and until indemnified to its satisfaction.
(d) Indemnification. In addition to such other rights of
indemnification as they may have as members of the Board, the members
of the Board shall be indemnified by the Company against all costs and
expenses reasonably incurred by them in connection with any action,
suit or proceeding to which they or any of them may be party by reason
of any action taken or failure to act under or in connection with the
Plan or any Restricted Stock, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction
of a judgment in any such action, suit or proceeding, except a judgment
based upon a finding of bad faith; provided that upon the institution
of any such action, suit or proceeding a Board member shall, in
writing, give the Company notice thereof and an opportunity, at its own
expense, to handle and defend the same before such Board member
undertakes to handle and defend it on her or his own behalf.
(e) Gender. For purposes of this Plan, words used in the
masculine gender shall include the feminine and neuter, and the
singular shall include the plural and vice versa, as appropriate.
(f) No Employment Agreement. The Plan shall not confer upon
any Grantee any right with respect to continuation of employment with
the Company, nor shall it interfere in any way with his right or the
Company's right to terminate his employment at any time.
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INTERNATIONAL FIBERCOM, INC.
INCENTIVE STOCK OPTION AGREEMENT
(1994 Incentive Stock Option Plan)
BY THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") made and entered
into this _____ day of ______________, ______ ("Grant Date"), INTERNATIONAL
FIBERCOM, INC., an Arizona corporation ("Company"), and
____________________________, an employee of the Company ("Optionee"), hereby
state, confirm, represent, warrant and agree as follows:
I.
RECITALS
1.1 The Company has adopted a 1994 Incentive Stock Option Plan
("Plan"). The Plan is administered by the Board of Directors or a Committee
appointed by the Board (as applicable, hereafter referred to as the "Board").
1.2 By this Agreement, the Company and the Optionee desire to establish
the terms upon which the Company will grant to the Optionee, and the Optionee
will accept from the Company, an option to purchase shares of common stock, no
par value, of the Company ("Common Stock") under the Plan.
II.
AGREEMENTS
2.1 Grant of Incentive Stock Option. Subject to the terms and
conditions of this Agreement and as set forth in the Plan, the Company grants to
the Optionee the right and option ("Option") to purchase from the Company all or
any part of an aggregate of ____________ shares of Common Stock, authorized but
unissued or, at the option of the Company, treasury if available ("Optioned
Shares"). The Option granted hereunder shall be an incentive stock option, as
defined in Section 422 of the Internal Revenue Code. The Optionee, upon
acceptance and execution of this Agreement, shall be bound by the terms and
conditions of this Agreement and of the Plan. Capitalized terms which are not
defined in this Agreement shall have the meanings given to such terms in the
Plan.
2.2 Exercise of Option. The Optionee may exercise this Option by
completing and signing a written notice in the form attached to this Agreement
and delivering such notice to the Company as provided in this Agreement.
2.3 Purchase Price. The price to be paid for the Optioned Shares (the
"Purchase Price") shall be $____ per share.
2.4 Payment of Purchase Price. Payment of the Purchase Price shall be
made in cash.
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<PAGE>
2.5 Termination of Option. Except as otherwise provided herein, the
Option, to the extent not theretofore exercised, shall terminate upon the first
to occur of the following dates:
2.5.1 5:00 p.m., Phoenix time on ______________;
2.5.2 The termination of Optionee's employment with the
Company, if such termination occurs prior to the date
one year from the date of the grant of the Option;
2.5.3 Termination of the Employee's employment by the
Company and expiration of any applicable
post-termination exercise periods provided by Section
9(b), "Exercise of Option," of the Plan; or
2.5.4 As otherwise provided in the Plan.
2.6 Notices. Any notice to be given under the terms of this Agreement
("Notice") shall be addressed to the Company in care of its secretary at 3615
South 28th Street, Phoenix, Arizona 85040, or at its then current corporate
headquarters. Notice to be given to Optionee shall be addressed to him or her at
the address set forth below under the Optionee's name or at such other address
as Optionee shall designate by notice. Notice shall be deemed duly given when
enclosed in a properly sealed envelope and deposited by certified mail, return
receipt requested, in a post office or branch post office regularly maintained
by the United States Government.
2.7 Notification of Disposition of Shares. The Optionee hereby
acknowledges that a disposition of shares of Common Stock acquired upon the
exercise of the Option within two (2) years from the Grant Date or within one
(1) year after the transfer of such shares of Common Stock to him or her would
result in the Option failing to qualify as an incentive stock option. The
Optionee hereby agrees to promptly notify the Company of any disposition of
shares of Common Stock within either of the above time limitations.
2.8 Optionee Not a Shareholder. The Optionee shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option herein granted shall have
been exercised with respect thereto and a stock certificate issued therefor.
2.9 Disputes or Disagreements. As a condition of the granting of the
Option herein granted, the Optionee agrees, for himself and his personal
representatives, that any disputes or disagreements which may arise under or as
a result of or pursuant to this Agreement shall be determined by the Board in
its sole discretion, and that any interpretation by the Board of the terms of
this Agreement shall be final, binding and conclusive. In the event of any
conflict between the Plan and this Agreement, the Plan shall control.
-2-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Optionee and by the Company through its duly authorized officer.
COMPANY:
INTERNATIONAL FIBERCOM, INC.
By____________________________________
Joseph P. Kealy
Its President
OPTIONEE:
______________________________________
________________________________
c/o International FiberCom, Inc.
3615 South 28th Street
Phoenix, AZ 85040
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<PAGE>
Note of Exercise
International FiberCom, Inc.
3615 South 28th Street
Phoenix, Arizona 85040
The undersigned hereby irrevocably subscribes for the purchase of _____
shares of Common Stock ("Shares") from International FiberCom, Inc. (the
"Company"), pursuant to and in accordance with the terms and conditions of this
Option, and herewith makes payment, covering the purchase of the Shares, which
should be delivered to the undersigned at the address stated below, and, if such
number of Shares shall not be all of the Shares purchasable hereunder, then a
new Option representing the balance of the Shares purchasable under this Option
shall be delivered to the undersigned at the address stated below.
The undersigned agrees that: (1) the undersigned will not offer, sell,
transfer or otherwise dispose of any such Shares, unless either (a) a
registration statement, or post-effective amendment thereto, covering such
Shares have been filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended ("Act"), and such sale, transfer or other
disposition is accompanied by a prospectus meeting the requirements of Section
10 of the Act forming a part of such registration statement, or post-effective
amendment thereto, which is in effect under the Act covering the Shares to be so
sold, transferred or otherwise disposed of, or (b) counsel to the Company
satisfactory to the undersigned has rendered an opinion in writing and addressed
to the Company that such proposed offer, sale, transfer or other disposition of
the Shares is exempt from the provisions of Section 5 of the Act in view of the
circumstances of such proposed offer, sale, transfer or other disposition; (2)
the Company may notify the transfer agent for its Common Stock that the
certificates for the Common Stock acquired by the undersigned are not to be
transferred unless the transfer agent receives advice from the Company that one
or both of the conditions referred to in (1)(a) and (1)(b) above have been
satisfied; and (3) the Company may affix a legend to the foregoing effect on the
certificates representing for Shares hereby subscribed for, if such legend is
applicable.
Dated:_____________________ Signed:_________________________________________
Address:________________________________________
________________________________________________
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INTERNATIONAL FIBERCOM, INC.
INCENTIVE STOCK OPTION AGREEMENT
(1997 Stock Option Plan)
BY THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") made and entered
into this _______ day of ___________, ________ ("Grant Date"), INTERNATIONAL
FIBERCOM, INC., an Arizona corporation ("Company"), and
_________________________, an employee of the Company ("Optionee"), hereby
state, confirm, represent, warrant and agree as follows:
I.
RECITALS
1.1 The Board of Directors of the Company adopted a 1997 Stock Option
Plan ("Plan") that was approved by the shareholders of the Company on July 21,
1997. Upon such approval, the right and option (the "Option") to purchase shares
of common stock, no par value, of the Company ("Common Stock") under the Plan
became effective. The Plan is administered by the Board of Directors or a
Committee appointed by the Board (as applicable, hereafter referred to as the
"Board").
1.2 By this Agreement, the Company and the Optionee desire to establish
the terms upon which the Company will grant to the Optionee, and the Optionee
will accept from the Company.
II.
AGREEMENTS
2.1 Grant of Incentive Stock Option. Subject to the terms and
conditions of this Agreement and as set forth in the Plan, the Company grants to
the Optionee the Option to purchase from the Company all or any part of an
aggregate of ___________ shares of Common Stock, authorized but unissued or, at
the option of the Company, treasury if available ("Optioned Shares"). The Option
granted hereunder shall be an incentive stock option, as defined in Section 422
of the Internal Revenue Code. The Optionee, upon acceptance and execution of
this Agreement, shall be bound by the terms and conditions of this Agreement and
of the Plan. Capitalized terms which are not defined in this Agreement shall
have the meanings given to such terms in the Plan.
2.2 Exercise of Option. The Optionee may exercise this Option by
completing and signing a written notice in the form attached to this Agreement
and delivering such notice to the Company as provided in this Agreement.
2.3 Purchase Price. The price to be paid for the Optioned Shares (the
"Purchase Price")
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<PAGE>
shall be $____ per share.
2.4 Payment of Purchase Price. Payment of the Purchase Price shall be
made in cash.
2.5 Termination of Option. Except as otherwise provided herein, the
Option, to the extent not theretofore exercised, shall terminate upon the first
to occur of the following dates:
2.5.1 5:00 p.m., Phoenix time on _____________;
2.5.2 The termination of Optionee's employment with the
Company, if such termination occurs prior to the date
one year from the date of the grant of the Option;
2.5.3 Termination of the Employee's employment by the
Company and expiration of any applicable
post-termination exercise periods provided by Section
9(b), "Exercise of Option," of the Plan; or
2.5.4 As otherwise provided in the Plan.
2.6 Notices. Any notice to be given under the terms of this Agreement
("Notice") shall be addressed to the Company in care of its secretary at 3615
South 28th Street, Phoenix, Arizona 85040, or at its then current corporate
headquarters. Notice to be given to Optionee shall be addressed to him or her at
the address set forth below under the Optionee's name or at such other address
as Optionee shall designate by notice. Notice shall be deemed duly given when
enclosed in a properly sealed envelope and deposited by certified mail, return
receipt requested, in a post office or branch post office regularly maintained
by the United States Government.
2.7 Notification of Disposition of Shares. The Optionee hereby
acknowledges that a disposition of shares of Common Stock acquired upon the
exercise of the Option within two (2) years from the Grant Date or within one
(1) year after the transfer of such shares of Common Stock to him or her would
result in the Option failing to qualify as an incentive stock option. The
Optionee hereby agrees to promptly notify the Company of any disposition of
shares of Common Stock within either of the above time limitations.
2.8 Optionee Not a Shareholder. The Optionee shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option herein granted shall have
been exercised with respect thereto and a stock certificate issued therefor.
2.9 Disputes or Disagreements. As a condition of the granting of the
Option herein granted, the Optionee agrees, for himself and his personal
representatives, that any disputes or disagreements which may arise under or as
a result of or pursuant to this Agreement shall be determined by the Board in
its sole discretion, and that any interpretation by the Board of the terms of
this Agreement shall be final, binding and conclusive. In the event of any
conflict between the Plan and this Agreement, the Plan shall control.
-2-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by Optionee and by the Company through its duly authorized officer.
COMPANY:
INTERNATIONAL FIBERCOM, INC.
By_____________________________________
Joseph P. Kealy
Its President
OPTIONEE:
_______________________________________
________________________________
c/o International FiberCom, Inc.
3615 South 28th Street
Phoenix, AZ 85040
-3-
<PAGE>
Note of Exercise
International FiberCom, Inc.
3615 South 28th Street
Phoenix, Arizona 85040
The undersigned hereby irrevocably subscribes for the purchase of _____
shares of Common Stock ("Shares") from International FiberCom, Inc. (the
"Company"), pursuant to and in accordance with the terms and conditions of this
Option, and herewith makes payment, covering the purchase of the Shares, which
should be delivered to the undersigned at the address stated below, and, if such
number of Shares shall not be all of the Shares purchasable hereunder, then a
new Option representing the balance of the Shares purchasable under this Option
shall be delivered to the undersigned at the address stated below.
The undersigned agrees that: (1) the undersigned will not offer, sell,
transfer or otherwise dispose of any such Shares, unless either (a) a
registration statement, or post-effective amendment thereto, covering such
Shares have been filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended ("Act"), and such sale, transfer or other
disposition is accompanied by a prospectus meeting the requirements of Section
10 of the Act forming a part of such registration statement, or post-effective
amendment thereto, which is in effect under the Act covering the Shares to be so
sold, transferred or otherwise disposed of, or (b) counsel to the Company
satisfactory to the undersigned has rendered an opinion in writing and addressed
to the Company that such proposed offer, sale, transfer or other disposition of
the Shares is exempt from the provisions of Section 5 of the Act in view of the
circumstances of such proposed offer, sale, transfer or other disposition; (2)
the Company may notify the transfer agent for its Common Stock that the
certificates for the Common Stock acquired by the undersigned are not to be
transferred unless the transfer agent receives advice from the Company that one
or both of the conditions referred to in (1)(a) and (1)(b) above have been
satisfied; and (3) the Company may affix a legend to the foregoing effect on the
certificates representing for Shares hereby subscribed for, if such legend is
applicable.
Dated:_________________________ Signed:______________________________________
Address:_____________________________________
_____________________________________________
-4-
[STREICH LANG LETTERHEAD]
December 3, 1997
Writer's Direct Line:
(602) 229-5336
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: International FiberCom, Inc.
Ladies and Gentlemen:
This firm is counsel for International FiberCom, Inc., an
Arizona corporation (the "Company"). As such, we are familiar with the Articles
of Incorporation and Bylaws of the Company. We have also acted as counsel for
the Company with respect to certain matters in connection with the preparation
of the Registration Statement on Form S-8 registering 3,641,707 shares of Common
Stock, no par value (the "Shares") under the Securities Act of 1933. In
addition, we have examined such documents and undertaken such further inquiry as
we consider necessary for rendering the opinion hereinafter set forth below.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the Sate of Arizona.
2. The Shares, when issued, will be duly and validly issued,
fully paid and nonassessable.
We acknowledge that we are referred to under the heading "Legal
Matters" of documents which are incorporated by reference in the Registration
Statement and we hereby consent to the use of our name in such documents. The
undersigned owns approximately 30,000 shares of common stock and 335,000 common
stock purchase warrants exercisable at prices ranging from $.937 to $1.47 per
share through April 2004. We further consent to the filing of this opinion as
Exhibit 5 to the Registration Statement and with the state regulatory agencies
in such states as may require such filing in connection with the registration of
the Shares for offer and sale in such states.
Very truly yours,
/s/ Christian J. Hoffmann, III
Christian J. Hoffmann, III
FOR THE FIRM
[SEMPLE & COOPER LETTERHEAD]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
As independent certified public accountants, we hereby consent to the inclusion
by reference of our report dated April 7, 1997, on the consolidated financial
statements of International Fibercom, Inc. for the year ended December 31, 1996,
in the Company's Form S-8 Registration Statement.
/s/ Semple & Cooper, LLP
Certified Public Accountants
Phoenix, Arizona
December 5, 1997
