SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
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[ ] Preliminary Proxy Statement
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
International FiberCom, Inc.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement)
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[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
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previously. Identify the previous filing by registration statement number,
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*Set forth the amount on which the filing fee is calculated and state how it was
determined.
<PAGE>
INTERNATIONAL FIBERCOM, INC.
3615 South 28th Street
Phoenix, Arizona 85040
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
July 21, 1997
The 1997 Annual Meeting of Shareholders of International FiberCom, Inc.
("Company") will be held at the Hilton Pavilion, 1011 West Holmes Avenue, Mesa,
Arizona 85202, on July 21, 1997, at 8:00 a.m., Mountain Standard Time, for the
following purposes:
1. To vote on ratification of the selection of Semple & Cooper as
the independent public accountants for the Company's fiscal
year 1997;
2. To vote for the election of six directors;
3. To approve adoption of 1997 Stock Option Plan and 1997
Restricted Stock Plan; and
4. To transact such other business as may properly come before
the meeting or any adjournment thereof.
The close of business on June 4, 1997 has been fixed as the record date
for the determination of the shareholders of record entitled to notice of, and
to vote at, this meeting or any adjournment thereof. The list of shareholders
entitled to vote at this meeting is available at the offices of International
Fibercom, Inc., 3615 South 28th Street, Phoenix, Arizona 85040, for examination
by any shareholder.
WHETHER OR NOT YOU EXPECT TO BE PRESENT AT THIS MEETING, PLEASE SIGN,
DATE AND RETURN THE ENCLOSED PROXY, WHICH IS SOLICITED BY AND ON BEHALF OF THE
BOARD OF DIRECTORS. THE GIVING OF SUCH PROXY WILL NOT AFFECT YOUR RIGHT TO
REVOKE SUCH PROXY OR TO VOTE IN PERSON SHOULD YOU LATER DECIDE TO ATTEND THIS
MEETING.
By Order of the Board of Directors
/s/ Joseph P. Kealy
Joseph P. Kealy
Chairman of the Board
Phoenix, Arizona
June 27, 1997
<PAGE>
INTERNATIONAL FIBERCOM, INC.
3615 South 28th Street
Phoenix, Arizona 85040
PROXY STATEMENT
Proxies in the form enclosed are solicited by the board of directors of
International FiberCom, Inc., an Arizona corporation (the "Company"), for use at
the 1997 Annual Meeting of Shareholders ("Annual Meeting") of the Company to be
held on July 21, 1997, and any adjournment thereof. The proxy materials were
mailed on or about June 27, 1997 to shareholders of record as of the close of
business on June 4, 1997.
Execution of the enclosed proxy will not in any way affect a
shareholder's right to attend the Annual Meeting and vote in person.
Shareholders giving proxies may revoke them at any time before they are
exercised by filing with the Secretary of the Company a written revocation or a
duly executed proxy bearing a later date or by attending the meeting and voting
in person.
The Company will bear the cost of solicitation of proxies, including
the charges and expenses of brokerage firms and others who forward proxy
materials to beneficial owners of stock. Solicitation by the Company will be by
mail, except for any incidental personal solicitation made by directors,
officers and employees of the Company, who will receive no additional
compensation therefor.
Voting Securities Outstanding
As of June 4, 1997, the record date for shareholders entitled to vote
at the meeting, there were 6,424,854 outstanding shares of the Company's Common
Stock. Each share of Common Stock is entitled to one vote on each matter of
business to be considered at the Annual Meeting, except for the election of
directors in which cumulative voting is permitted. A majority of the outstanding
shares entitled to vote at such meeting will constitute a quorum.
PROPOSAL NO. 1
RATIFICATION OF INDEPENDENT PUBLIC ACCOUNTANTS
The Company's board of directors ("Board"), acting upon the
recommendation of its Audit Committee, has selected, and is submitting to
shareholders for their confirmation, the appointment of Semple & Cooper as
auditors for the Company for its current fiscal year ending December 31, 1997.
The approval of the shareholders is being sought because of the importance of
independent public accountants to a publicly held corporation. If the
shareholders do not approve the appointment of Semple & Cooper, the Board will
reconsider its selection of independent accountants.
The Company does not expect that representatives of Semple & Cooper
will be present at the Annual Meeting.
For the year ended December 31, 1996 ("Fiscal 1996"), Semple & Cooper
provided audit services to the Company, including examination of the annual
consolidated financial statements of the Company,
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review of unaudited quarterly financial information, assistance and consultation
in connection with filing the Company's Annual Report on Form 10-KSB with the
Securities and Exchange Commission ("SEC") and other filings with the SEC, and
consultation in connection with various audit-related and accounting matters.
Each year, the Audit Committee will review and approve in advance the
scope of the annual audit by the Company's independent accountants. The Audit
Committee will also be advised of significant non-audit professional services
provided by such accountants to assess whether the rendering of such services
would impair the independence of the firm.
It is intended that the proxies will be voted in favor of ratifying the
selection of the Company's independent accountants unless instructions to the
contrary are indicated on the accompanying proxy form.
Your directors recommend a vote FOR Proposal No. 1
PROPOSAL NO. 2
ELECTION OF DIRECTORS
The Articles of Incorporation of the Company provide for a Board of not
fewer than three nor more than nine members and may be altered as provided in
the Company's bylaws. The term of office of all directors elected at the Meeting
will expire at the 1998 Annual Meeting of Shareholders. Vacancies occurring
during a term may be filled by the Board for the remainder of the full term.
On May 30, 1997, the Board nominated Joseph P. Kealy, Jerry Kleven,
John F. Kealy, Edwin L. King and Richard J. Seminoff for re-election and V.
Thompson Brown, Jr. for initial election to the Board. If the shareholders elect
the nominees, the composition of the Board will be as follows:
Joseph P. Kealy
Jerry Kleven
John F. Kealy
Edwin L. King
Richard J. Seminoff
V. Thompson Brown, Jr.
For information regarding the nominees proposed for election at the
Meeting, see "Directors and Executive Officers" in the following section.
Cumulative Voting
Pursuant to the Arizona General Corporation Law, at each election for
directors, shareholders are entitled to cumulate their votes by multiplying the
number of votes they are entitled to cast by the number of directors for whom
they are entitled to vote and casting the product for a single candidate or
distributing the product among two or more candidates.
It is intended that the proxies will be voted for the nominees or for a
substitute nominee, in the case of any nominee who becomes unavailable, on a pro
rata basis among the nominees unless instructions to the contrary are indicated
on the accompanying proxy form.
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<PAGE>
Your directors recommend a vote FOR the election of the
six nominees under Proposal No. 2
PROPOSAL NO. 3
Approval of Adoption of 1997 Incentive Stock Option Plan and
1997 Restricted Stock Plan
The Board adopted the 1997 Stock Option Plan ("Plan") and the 1997
Restricted Stock Plan ("Restricted Stock Plan") in January 1997, subject to
submission of the Plan and Restricted Stock Plan (collectively, the "Plans") to
the shareholders for approval. The affirmative vote of the majority of the
outstanding shares of Common Stock will be required to approve the proposed
Plans. Set forth below are descriptions of the Plans.
1997 Stock Option Plan. The Board adopted the Plan in January 1997, a
copy of which is attached as Exhibit A to this Proxy Statement. Under the Plan,
1,200,000 shares of Common Stock of the Company are reserved for issuance. The
Plan authorizes the Company to grant to key employees and directors of the
Company (i) incentive stock options to purchase shares of Common Stock and (ii)
non-qualified stock options to purchase shares of Common Stock. Such Plan is
being submitted to the shareholders for approval at the Annual Meeting.
The objectives of the Plan are to provide incentives to key employees
and to directors to achieve financial results aimed at increasing shareholder
value and attracting talented individuals to the Company. The Compensation
Committee formed by the Board is comprised of non-employee directors who will
administer the Plan and make initial determinations and recommendations to the
Board as to the persons to whom options will be granted and the amount, terms,
conditions and restrictions of such awards. Although the Plan does not specify
what portion of the shares may be awarded in the form of incentive stock options
or non-statutory options, it is anticipated that a substantially greater number
of incentive stock options will be awarded under the Plan. Incentive stock
options awarded to employees of the Company are qualified stock options under
the Internal Revenue Code. Further, the Plan is a stock option plan meeting the
requirements of Rule 16b-3 ("Rule 16b-3") promulgated under the Securities and
Exchange Act of 1934, as amended ("Exchange Act"). Persons eligible to be
granted incentive stock options under the Plan will be those employees of the
Company whose performance, in the judgment of the Compensation Committee, can
have significant effect on the success of the Company.
The Plan will be administered by the Compensation Committee, which will
have the authority to interpret its provisions, to establish and amend rules for
its administration, to make recommendations to the Board as to the types and
amounts of awards to be made pursuant to the Plan, subject to the Plan's
limitations.
Incentive stock options may be granted under the Plan for terms of up
to ten years and at exercise prices at least equal to 100% of the fair market
value of the Common Stock as of the date of grant, except that incentive stock
options granted to any person who owns, immediately after such grant, stock
possessing more than 10% of the combined voting power of all classes of the
Company's stock or of any parent or subsidiary corporation must have an exercise
price at least equal to 110% of the fair market value of the Common Stock on the
date of grant. Non-statutory stock options will have exercise prices as
determined by the Compensation Committee or the Board. The aggregate fair market
value, determined as of the time an incentive stock option is granted, of the
Common Stock with respect to which incentive stock options are exercisable by an
employee for the first time during any calendar year, shall not exceed $100,000.
There is no aggregate dollar limitation on the amount of non-statutory stock
options which may be exercisable for the first time by an optionee during any
calendar year. Payment of the exercise price
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for any option may be in cash, by withheld shares which upon exercise of an
option having a fair market value at the time the option is exercised equal to
the option price (plus applicable withholding tax) or in the form of shares of
the Company's Common Stock. Any option granted under the Plan will expire at the
time fixed by the Committee, which will not be more than ten years after the
date it is granted or, in the case of any person who owns more than 10% of the
combined voting power of all classes of the Company's stock or of any subsidiary
corporation, not more than five years after the date of grant. The Compensation
Committee may also specify when all or part of an option becomes exercisable,
but in the absence of such specification, the option will ordinarily be
exercisable in whole or part at any time during its term. Subject to the
foregoing, the Compensation Committee may accelerate the exercisability of any
option in its discretion.
Options granted under the Plan are not assignable. Incentive Stock
Options may be exercised only while the optionee is employed by the Company or
within twelve months after termination by reason of death, within twelve months
after the date of disability, or within three months after termination for any
other reason.
As of the date of this Proxy Statement, options to purchase 735,000
shares have been granted by the Company under the Plan, which options are
effective only upon the approval of the Plan by the shareholders of the Company.
Of such options, 340,000 options were granted to Joseph P. Kealy, 120,000
options each were granted to Jerry Kleven and Terry Beiriger and 50,000 options
each were granted to Edwin L. King, Richard J. Seminoff and John F. Kealy. All
of the aforementioned individuals are officers and/or directors of the Company.
The balance of 25,000 options were granted to three employees who are not
officers or directors. Options pertaining to 590,000 shares are exercisable at a
price of $.9375 per share and options pertaining to 145,000 shares are
exercisable at a price of $1.47 per share. All of such options are for a term of
five years following their effective dates.
Tax Consequences Respecting Options Under the Plan. An employee or
director will not recognize income on the awarding of incentive stock options
and nonstatutory options under the Plan. An optionee will recognize ordinary
income as the result of the exercise of a nonstatutory stock option in the
amount of the excess of the fair market value of the stock on the day of
exercise over the option exercise price. Exercise of an option with previously
owned stock is not a taxable disposition of such stock.
An employee will not recognize income on the exercise of an incentive
stock option, unless the option exercise price is paid with stock acquired on
the exercise of an incentive stock option and the following holding period for
such stock has not been satisfied. He will recognize long-term capital gain or
loss on a sale of the shares acquired on exercise, provided the shares acquired
are not sold or otherwise disposed of before the earlier of: (i) two years from
the date of award of the option or (ii) one year from the date of exercise. If
the shares are not held for the required period of time, the employee will
recognize ordinary income to the extent the fair market value of the stock at
the time the option is exercised exceeds the option price, but limited to the
gain recognized on sale. The balance of any such gain will be a short-term
capital gain.
An employee generally must include in alternative minimum taxable
income the amount by which the price he paid for an incentive stock option is
exceeded by the option's fair market value at the time his rights to the stock
are freely transferrable or are not subject to a substantial risk of forfeiture.
The Company and its subsidiaries will be entitled to deductions for
federal income tax purposes as a result of the exercise of a nonstatutory option
and the disqualifying sale or disposition of incentive stock options in the year
and the amount that the employee recognizes ordinary income as a result of such
disqualifying disposition.
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The affirmative vote of a majority of the outstanding shares will be
required to bring the Plan into compliance with Section 16(b) of the Exchange
Act. It is intended that the proxies will be voted for adoption of the Plan
unless instructions to the contrary are indicated on the accompanying proxy
form.
1997 Restricted Stock Plan. The Board adopted the Restricted Stock Plan
in January 1997, a copy of which is attached as Exhibit B to this Proxy
Statement. The Restricted Stock Plan is being submitted to the shareholders for
approval at the Annual Meeting. Under the Restricted Stock Plan, shares of
Common Stock of the Company are reserved, in such amounts as determined by the
Board, for issuance as part of the total shares reserved under the Plan
described above. The Restricted Stock Plan authorizes the grant of shares of
Common Stock to key employees, consultants, researchers and to members of the
Board. The Restricted Stock Plan is administered by the Board or a committee of
the Board, which determines the persons to whom shares of Common Stock will be
granted and the terms of such share grants.
As of the date hereof, no shares have been granted under the Restricted
Stock Plan. If the shareholders approve the Restricted Stock Plan, the Company
anticipates that shares may be granted under the Restricted Stock Plan from time
to time commencing in 1997 and thereafter depending upon the performance of the
Company.
Your directors recommend a vote FOR adoption
of the Plans listed under Proposal No. 3
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<PAGE>
Directors and Executive Officers
The following sets forth certain information with respect to directors
and executive officers of the Company with the year in which each director's
term expires in parentheses.
<TABLE>
<CAPTION>
Name Age Position with Company and Tenure
- --------------------------------- ---------- ---------------------------------------------------------
<S> <C> <C>
Joseph P. Kealy 47 Chairman of the Board of Directors since 1994
and Director and President since 1990. (1997)
Jerry Kleven 43 Director since 1995. (1997)
John F. Kealy 52 Director since 1990. (1997)
Edwin L. King 50 Director since 1995. (1997)
Richard J. Seminoff 49 Director since 1995. (1997)
Terry W. Beiriger 45 Principal Financial Officer since 1990, Secretary
since 1995 and Treasurer since 1996.
V. Thompson Brown, Jr. 34 Nominee for Director.
</TABLE>
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Directors hold office until the next annual meeting of shareholders and
until their successors are elected and qualified or until their prior
resignation. All executive officers are appointed by and serve at the discretion
of the Board for continuous terms.
Joseph P. Kealy is the Chairman and President of the Company and he has
served in such capacities since May 1994 and September 1990, respectively. He
has been a director of the Company since September 1990. Mr. Kealy was president
of International Environmental Corporation ("IEC"), a former wholly-owned
subsidiary of the Company, from its inception in 1987 until his resignation in
March 1995 in connection with the sale of IEC. Mr. Kealy has been involved in
the construction business for 26 years in both field and management capacities.
For 15 years prior to joining the Company Mr. Kealy was the Arizona manager for
a construction company. He attended college in Hastings, Nebraska and at
Northern Arizona University.
Jerry A. Kleven is the President of Kleven Construction, Inc.
("Kleven"), one of the Company's wholly owned subsidiaries. He has been involved
in the underground construction industry since 1971. He is a member of various
underground construction organizations in the United States, including the
National Underground Contracting Association. He has worked in all phases of
Kleven's operations, including systems analysis, construction methodology and
final estimate pricing.
John F. Kealy has been a director of the Company since September 1990.
Mr. Kealy was the Executive Vice President and Secretary of the Company until
March 1995 when he resigned in connection with his acquisition of IEC from the
Company in 1995. He served as Chairman of the Company from September 1990 to May
1994. John F. Kealy formed IEC with his brother Joseph P. Kealy in 1987 and
served as its chairman from its inception to May 1994. Mr. Kealy has been the
President and Chairman of IEC since January 1995. Mr. Kealy has been in the
construction business for 29 years in both field and management capacities. Mr.
Kealy became a construction manager in 1967 and ran construction company
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offices in Hastings, Nebraska, Farmington, New Mexico and Phoenix Arizona from
1974 to 1989. Mr. Kealy attended Notre Dame University and graduated from
Arizona State University in 1967 with a Bachelor of Science in Construction
Management.
Edwin L. King has been the president, treasurer and a director of
Mexican Patio Cafes, Inc. ("MPC"), a development stage public company, since
December 1992. MPC, through a principal subsidiary, is developing a program to
market coupon advertising services inside supermarkets to businesses located in
the immediate vicinity of the supermarkets. From August 1988 through July 1992,
Mr. King was an executive vice president, then president and a principal
shareholder of ShopTalk International, Inc. ("ShopTalk"), a company specializing
in satellite delivered custom music and commercial message programs played over
the speaker systems of supermarkets. In January 1991, Mr. King purchased a
majority interest in ShopTalk and in July 1992 sold such interest to 3M
Corporation, which provided electronic hardware and satellite for ShopTalk's
operations.
Richard J. Seminoff has been a Vice President at Semco Enterprises,
Inc., which is in the metal processing business, since May 1995. From April 1991
to April 1995, he has served as president of Amos, Lovitt, Touche & Seminoff, an
insurance agency in Phoenix, Arizona. From 1979 to March 1991, he was employed
by the Lasher Cowie Insurance Agency, Inc. ("Lasher-Cowie"), one of the largest
regional insurance agencies headquartered in Phoenix, Arizona, and he was the
president of such agency from 1984 to March 1991. Lasher-Cowie became a part of
Hilb, Rogal and Hamilton Company, a publicly owned company. Mr. Seminoff
resigned as president of Lasher-Cowie in March 1991.
Terry W. Beiriger is the principal financial officer, controller,
Treasurer and Secretary of the Company. Mr. Beiriger has served as the principal
financial officer and controller of the Company since September 1990, as
Treasurer since July 1996 and as secretary since March 1995. He became involved
in the construction business in 1979 when he joined Kealy Construction Company,
which was owned by Joseph P. Kealy and John F. Kealy, as its controller. From
1974 to 1979, he was employed as a U.S. Internal Revenue Service agent
specializing in the audits of medium-sized corporations. Mr. Beiriger graduated
from Hastings College in Nebraska in 1974 with a Bachelor of Science in Business
Administration.
Nominee for Election to the Board of Directors
V. Thompson Brown, Jr. joined Concepts In Communications, Incorporated
("Concepts"), a principal subsidiary of the Company, in 1986. Since November
1987 he has been the Operations Manager for Concepts where he is responsible for
project administration, materials management and bid and sales supervision. Mr.
Brown graduated from Vanderbilt University with a Bachelor of Science in
Engineering in 1984.
Business of the Board of Directors
During the fiscal year ended December 31, 1996, the Company's board of
directors held five meetings, either in person or by consent resolution. All
directors attended or participated in all of these meetings.
Audit Committee
In 1996 the Board elected Edwin L. King and Richard J. Seminoff to the
Audit Committee. The functions of the Audit Committee are to receive reports
with respect to loss contingencies, the public disclosure or financial statement
notation of which may be legally required; annual review and examination
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of those matters that relate to a financial and performance audit of the
Company's employee plans; recommend to the Board the selection, retention and
termination of the Company's independent accountants; review the professional
services, proposed fees and independence of such accountants; and provide for
the periodic review and examination of management performance in selected
aspects of corporate responsibility. The Audit Committee held one meeting during
fiscal 1996. See "Compensation Committee Interlocks and Insider Participation"
in the following section.
Compensation Committee
In 1996 the Board elected Edwin L. King and Richard J. Seminoff to the
Compensation Committee. The functions of the Compensation Committee are to
review annually the performance of the chairman and president and of the other
principal officers whose compensation is subject to the review and
recommendation by the Committee to the Company's board of directors.
Additionally, the Compensation Committee is to review compensation of outside
directors for service on the Board and for service on committees of the Board,
and to review the level and extent of applicable benefits provided by the
Company with respect to automobiles, travel, insurance, health and medical
coverage, stock options and other stock plans and benefits. The Compensation
Committee held one meeting during fiscal 1996. See "Compensation Committee
Interlocks and Insider Participation" in the following section.
Compensation Committee Interlocks and Insider Participation
Messrs. King and Seminoff serve as members of the Compensation
Committee. They have served in that capacity since they were appointed in August
1994 and are non-employee directors for purposes of administering the Plan under
Rule 16b-3.
Director Compensation
Directors currently receive no cash compensation for their services in
that capacity. Reasonable out-of-pocket expenses may be reimbursed to directors
in connection with attendance at meetings. In May 1996, the Company granted
25,000 options each to Edwin L. King, Richard J. Seminoff and John F. Kealy to
purchase shares of Common Stock at a price of $1.125 per share. Such options are
exercisable through May 8, 2006. In January 1997, the Company granted 30,000
options under the Plan each to Edwin L. King, Richard J. Seminoff and John F.
Kealy to purchase shares of Common Stock at a price of $.9375 per share and in
April 1997 the Company granted 20,000 options under the Plan to each of such
persons to purchase shares of Common Stock at a price of $1.47 per share. Such
options are not effective until approval of the Plan by the shareholders at the
Annual Meeting and will be exercisable five years following their effective
dates.
Compliance with Section 16(a) of the Securities Exchange Act
Section 16(a) of the Securities Exchange Act of 1934, as amended
("Exchange Act") requires the Company's officers and directors, and persons who
own more than ten percent of a registered class of the Company's equity
securities, to file reports of ownership and changes in ownership with the
Securities and Exchange Commission ("SEC"). Such officers, directors and
shareholders are required by SEC regulation to furnish the Company with copies
of all Section 16(a) forms that they file.
Based solely on its review of the copies of such forms received by the
Company, or representations from certain reporting persons that no forms were
required for those persons, except as described hereafter, the Company believes
that during Fiscal 1996 all filing requirements applicable to its officers,
directors and ten percent beneficial owners were satisfied.
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Certain Transactions
Commencing in 1989 the Company advanced funds to Wings Limited
Partnership, the partners of which included Joseph P. Kealy, John F. Kealy and
Joseph W. Zerbib, a former officer, director and principal shareholder of the
Company. In 1993, such individuals executed a promissory note in the principal
amount of $396,732, plus accrued interest, to assume the obligation of the Wings
Limited Partnership on a joint and several basis. Such individuals and their
respective spouses secured the note by pledging 267,000 shares of their Common
Stock to the Company. In June 1996, Mr. Zerbib paid $108,035, representing his
pro-rata share of the principal and accrued interest on the note. Upon such
payment the Company released him from his obligations under the note and
released 107,000 shares of Common Stock which he had pledged to secure the note
The maturity date of the note has been extended on several occasions, with the
most recent extension to December 31, 1997. As of December 31, 1996, the
outstanding principal balance of the note was $152,394.
At December 31, 1994 Jerry Kleven, Brad J. Kleven and Ronald Abeyta
owed the Company $81,656, $108,400 and $68,634, respectively, as a result of
advances made by the Company to such individuals in fiscal 1994. Nearly all of
such advances occurred prior to the Company's acquisition of Kleven in August
1994. The advances were represented by secured promissory notes bearing interest
at 7% per annum, which notes were due and payable in full on or before December
31, 1995. Also at December 31, 1994, International FiberCon, Inc., a California
corporation ("FiberCon") of which Jerry Kleven, Brad J. Kleven and Ronald Abeyta
owned a majority interest, owed the Company $210,000 as the result of advances
made by the Company to FiberCon. Such individual owners personally guaranteed
FiberCon's payment of the promissory note. FiberCon was formed to help the
Company develop its business in California. In 1995 FiberCon failed to make the
required payments on the note and the Company requested payment from Jerry
Kleven, Brad Kleven and Ronald Abeyta under their respective guarantees. Jerry
Kleven paid the sum of $100,000 toward his note to the Company and his pro rata
portion of the guarantee of the FiberCon note in 1995. The remaining balance due
of $63,497 was consolidated into a new note on December 31, 1995 and had an
outstanding principal balance of $67,942 at December 31, 1996. The Company has
received no payment from Brad Kleven or Ronald Abeyta on their respective notes
or guarantees of the FiberCon note and it has filed suit against them for full
payment of the notes and guarantee obligations.
Limitation of Liability of Directors
The General Corporation Law of Arizona ("Corporation Law") permits the
inclusion of a provision in the articles of incorporation of a corporation
limiting or eliminating the potential monetary liability of directors to a
corporation or its shareholders by reason of their conduct as directors. These
sections do not permit any limitation on or the elimination of liability of a
director for disloyalty to his corporation or its shareholders, failing to act
in good faith, engaging in intentional misconduct or a knowing violation of the
law, obtaining an improper personal benefit or paying a dividend or approving a
stock repurchase that was illegal under the Corporation Law. Accordingly, the
provisions limiting or eliminating the potential monetary liability of directors
permitted by the Corporation Law apply only to the "duty of care" of directors,
that is, to unintentional errors in their deliberations or judgments and not to
any form of "bad faith" conduct.
The Articles of Incorporation of the Company eliminate the personal
monetary liability of directors to the extent allowed under Arizona law. A
shareholder is able to prosecute an action against a director for monetary
damages only if he can show a breach of the duty of loyalty, a failure to act in
good faith, intentional misconduct, a knowing violation of law, an improper
personal benefit or an illegal dividend or
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stock repurchase, and not "negligence" or "gross negligence" in satisfying his
duty of care. Article XII of the Articles of Incorporation applies only to
claims against a director arising out of his role as a director and not in any
other capacity or to his responsibilities under any other law, such as the
federal securities laws.
Executive Compensation
The following table sets forth all cash compensation paid by the
Company to the chief executive officer and the most highly compensated executive
officers and key employees whose total renumeration exceeded $100,000 for
services rendered in all capacities to the Company during the last three
completed fiscal years.
EXECUTIVE COMPENSATION
<TABLE>
<CAPTION>
Annual Compensation Long-Term Compensation
-------------------------------------- -----------------------------------------
Awards Payouts
----------------------- -------
All
Other Other
Name and Annual Restricted Compen-
Principal Compen- Stock Options/ LTIP sation
Positions Year Salary Bonus sation Award(s) SARs(2) Payouts (3)
- --------- ---- -------- ----- ------- -------- -------- ------- -------
<S> <C> <C> <C> <C>
Joseph P. Kealy 1996 $117,092 165,000 $9,600
President and 1995 96,936 9,600
Chairman of the 1994 114,208 9,600
Board
Terry W. 1996 75,154 65,000 9,600
Beiriger 1995 71,922 9,600
Principal 1994 68,229 3,200
Financial Officer,
Secretary and
Treasurer
Jerry Kleven 1996 150,000 70,000 10,000
Executive Vice 1995 150,000 10,000
President and 1994 150,000 10,000
Director
</TABLE>
(1) In August 1994 the Company entered into five-year employment agreements
with Joseph P. Kealy providing for an annual base salary of $150,000
and an automobile allowance of $9,600 per year and with Jerry Kleven
providing for a base salary of $150,000 and an automobile allowance of
$10,000 per year.
(2) Does not include 340,000 options granted to Mr. Kealy or 120,000
options granted to each Messrs. Beiriger and Kleven in January 1997 and
April 1997 under the Plan. Such grants are not effective until approval
of the Plan by the shareholders at the Annual Meeting. See "Approval of
Adoption of 1997 Incentive Stock Option Plan and 1997 Restricted Stock
Plan" and "Option Grants in 1996."
(3) The amounts set forth in this column are the automobile allowances
received by the persons in the table.
Stock Option Plan and Restricted Stock Plan
1994 Incentive Stock Option Plan. The board of directors adopted the
1994 Incentive Stock Option Plan (the "1994 Plan") in March 1994. Under the
Plan, 441,707 shares of Common Stock are reserved for issuance and have been
issued. The 1994 Plan authorizes the Company to grant to key employees of
- 10 -
<PAGE>
the Company (i) incentive stock options to purchase shares of Common Stock and
(ii) non-qualified stock options to purchase shares of Common Stock. The 1994
Plan was approved by the shareholders at the Annual Meeting of Shareholders held
on May 31, 1994.
The objectives of the 1994 Plan are to provide incentives to key
employees to achieve financial results aimed at increasing shareholder value and
attracting talented individuals to the Company. The Compensation Committee to be
formed by the board of directors and comprised of disinterested Directors will
have the discretion to make awards of stock options. Although the 1994 Plan does
not specify what portion of the shares may be awarded in the form of incentive
stock options or non-statutory options, it is anticipated that a substantially
greater number of incentive stock options will be awarded under the 1994 Plan.
The incentive stock options are qualified stock options under the Internal
Revenue Code. Further, the 1994 Plan is a stock option plan meeting the
requirements of Rule 16b-3 promulgated under the Exchange Act. Persons eligible
to participate in the 1994 Plan will be those employees of the Company whose
performance, in the judgment of the Compensation Committee, can have significant
effect on the success of the Company.
The 1994 Plan is administered by the Compensation Committee, which has
the authority to interpret its provisions, establish and amend rules for its
administration, determine the types and amounts of awards to be made, subject to
the 1994 Plan's limitations, and approve recommendations made by management of
the Company as to who should receive awards.
Incentive stock options may be granted under the 1994 Plan for terms of
up to ten years and at an exercise price at least equal to 100% of the fair
market value of the Common Stock as of the date of grant, and 85% of the fair
market value in the case of non-statutory options, except that incentive options
granted to any person who owns stock possessing more than 10% of the combined
voting power of all classes of the Company's stock or of any parent or
subsidiary corporation must have an exercise price at least equal to 110% of the
fair market value of the Company's Common Stock on the date of grant. The
aggregate fair market value, determined as of the time an incentive stock option
is granted, of the Common Stock with respect to which incentive stock options
are exercisable by an employee for the first time during any calendar year shall
not exceed $100,000. There is no aggregate dollar limitation on the amount of
non-statutory stock options which may be exercisable for the first time by an
employee during any calendar year. Payment of the exercise price is to be in
cash, although the Compensation Committee may, in its discretion, allow payment
in the form of shares of the Company's Common Stock under certain circumstances.
Any option granted under the 1994 Plan will expire at the time fixed by the
Committee, which will not be more than ten years after the date it is granted.
Any employee receiving a grant must remain continuously employed by the Company
for a period of twelve months after the date of the grant, as a condition to the
exercise of the option. The Compensation Committee may also specify when all or
part of an option becomes exercisable, but in the absence of such specification,
the option will ordinarily be exercisable in whole or part at any time during
its term. In addition, optionees who are directors or executive officers of the
Company may not exercise any portion of an option within six months of the date
of grant. Subject to the foregoing, the Compensation Committee may accelerate
the exercisability of any option in its discretion.
Options granted under the 1994 Plan are not assignable. Options may be
exercised only while the optionee is employed by the Company or within twelve
months after termination by reason of death, within twelve months after the date
of disability, or within ten days after termination for any other reason.
The Company may assist optionees in paying the exercise price of
options granted under the 1994 Plan by either the extension of a loan by the
Company for payment by the optionee of the exercise price in installments, or a
guarantee by the Company of a loan obtained by the optionee from a third party.
The
- 11 -
<PAGE>
terms of any loan, installment payments or guarantees, including the interest
rate and terms of repayment and collateral requirements, if any, shall be
determined by the Board of Directors in its sole discretion.
1994 Restricted Stock Plan. The Board of Directors adopted the 1994
Restricted Stock Plan ("1994 Restricted Stock Plan") in March 1994 and it was
approved by the shareholders at the Annual Meeting of Shareholders held on May
31, 1994. Under the 1994 Restricted Stock Plan, shares of Common Stock of the
Company are reserved, in such amounts as determined by the Board of Directors,
for issuance as part of the total shares reserved under the 1994 Plan described
above. The 1994 Restricted Stock Plan authorizes the grant of shares of Common
Stock to key employees, consultants, researchers and to members of the Advisory
Board. The 1994 Restricted Stock Plan is administered by the Board of Directors
or a committee of the Board, which determines the persons to whom shares of
Common Stock will be granted and the terms of such share grants.
Option Grants in 1996
The following executive officers were granted stock options by the
Company in Fiscal 1996 in recognition of their past contributions to the
Company. In each case, the option price was in excess of the fair market value
of the Common Stock on the date of grant.
<TABLE>
<CAPTION>
Percentage of Total
No. of Shares for which
Shares Underlying Options Granted Expiration
Name Options Granted to Employees Exercise Price Date(1)
---- --------------- ------------ -------------- -------
<S> <C> <C> <C> <C>
Joseph P. Kealy 165,000 55 $1.125 May 8, 2006
Jerry Kleven 70,000 23 1.125 May 8, 2006
Terry W. Beiriger 65,000 22 1.125 May 8, 2006
</TABLE>
- ------------------
(1) Options became exercisable May 8, 1997.
(2) Does not include 340,000 options granted to Mr. Kealy or 120,000
options granted to each Messrs. Kleven and Beiriger under the Plan in
1997, effective only upon approval of the Plan by the shareholders at
the Annual Meeting. See "Approval of Adoption of 1997 Incentive Stock
Option Plan and 1997 Restricted Stock Plan."
Option Exercises in 1996
There were no exercises of outstanding stock options in Fiscal 1996.
- 12 -
<PAGE>
Ownership of Common Stock by Nominees for Directors, Executive Officers and
Certain Shareholders
The following table sets forth information, as of June 4, 1997, with
respect to the number of shares of Common Stock of the Company beneficially
owned by individual directors, by all directors and officers of the Company as a
group, and by persons known by the Company to own more than 5% of the Company's
Common Stock. The Company has no other class of stock outstanding.
<TABLE>
<CAPTION>
Name of Beneficial Number Percent of
Owner and Address of Shares Common Stock Owned
- ------------------------------------------------- ------------------------- ----------------------------------
<S> <C> <C>
Joseph P. Kealy 396,186 (1)(2) 6.0
3615 S. 28th Street
Phoenix, Arizona 85040
John F. Kealy 185,211 (1)(3) 2.9
520 South 52nd Street
Tempe, Arizona 85281
Jerry Kleven 125,997 (1)(4) 1.9
3615 S. 28th Street
Phoenix, Arizona 85040
Terry W. Beiriger 77,500 (1)(5) 1.2
3615 S. 28th Street
Phoenix, Arizona 85040
Edwin L. King 45,000 (6) .7
13806 N. 18th Street
Phoenix, Arizona 85022
Richard J. Seminoff 45,000 (6) .7
5050 North 40th Street
Suite 220
Phoenix, Arizona 85018
V. Thompson Brown, Jr. 75,000 (7) 1.2
5714 Charlotte Avenue
Nashville, Tennessee 37209
RBB Bank Aktiengesellschaft 7,136,841 (1) 57.0
Burgring 16, 8010
Graz, Austria
All directors and 874,894 12.8
officers as a group
(six persons)
</TABLE>
- ---------------------
(1) The shareholder listed has sole voting and investment power with
respect to the shares listed. Terry W. Beiriger disclaims beneficial
ownership of an additional 2,300 shares owned by his minor children.
- 13 -
<PAGE>
(2) Includes options to purchase 165,000 shares of Common Stock granted in
Fiscal 1996. Does not include options to purchase 340,000 shares of
Common Stock granted under the Plan, which grants do not become
effective until the approval of the Plan at the Annual Meeting.
(3) Includes options to purchase 25,000 shares of Common Stock granted in
Fiscal 1996. Does not include options to purchase 50,000 shares of
Common Stock granted under the Plan, which grants do not become
effective until the approval of the Plan at the Annual Meeting.
(4) Includes options to purchase 70,000 shares of Common Stock granted in
Fiscal 1996. Does not include options to purchase 120,000 shares of
Common Stock granted under the Plan, which grants do not become
effective until the approval of the Plan at the Annual Meeting.
(5) Includes options to purchase 65,000 shares of Common Stock granted in
Fiscal 1996. Does not include options to purchase 120,000 shares of
Common Stock granted under the Plan, which grants do not become
effective until the approval of the Plan at the Annual Meeting.
(6) Includes options to purchase 20,000 shares of Common Stock granted each
to Edwin L. King and Richard J. Seminoff in fiscal 1995 and options to
purchase 25,000 shares of Common Stock granted in Fiscal 1996 to each
of them. Does not include options to purchase 50,000 shares of Common
Stock granted each to Edwin L. King and Richard J. Seminoff under the
Plan in 1997, which grants do not become effective until the approval
of the Plan at the Annual Meeting.
(7) Includes options to purchase 70,000 shares of Common Stock granted in
January 1997, which options are exercisable at a price of $.9375 per
share through January 6, 2002.
(8) Assumes that all shares of Common Stock issued and issuable to RBB Bank
Aktiengesellschaft ("RBB Bank") upon the conversion of $1,500,000
principal amount of 8% Convertible Subordinated Debentures
("Debentures"), the Series A Convertible Preferred Stock ("Series A
Preferred"), and Series B Convertible Preferred Stock ("Series B
Preferred") and upon the exercise of common stock purchase warrants are
beneficially owned by it. RBB Bank has disclaimed beneficial ownership
of all of the foregoing securities and advised the Company that it is
holding such securities on behalf of certain of its clients, none of
whom owns 5% or more of any class of these securities. RBB Bank has
further advised the Company that its clients have sole voting power
over, and sole economic interest in, these securities. The holders of
the Preferred Stock have no voting rights, except as required by law,
such as in matters directly affecting the rights as holders of
Preferred Stock. Of the shares of Common Stock indicated in the table
as being held by RBB Bank for its clients, 1,044,935 shares were issued
and outstanding (186,526 shares of which are subject to restrictions on
transfer); 1,200,000 shares are issuable commencing October 1997 upon
conversion of Debentures; 1,853,458 shares are issuable upon conversion
of 1,972 shares of Series A Preferred at assumed conversion prices of
$.93, $1.10 and $1.29 per share; 2,338,790 shares are issuable upon
conversion of 3,500 shares of Series B Preferred at an assumed
conversion price of $1.50 per share; and 700,000 shares issuable upon
exercise of 700,000 warrants at prices of $2.19, $2.25 and $2.75 per
share. RBB Bank's clients have requested registration of the shares of
Common Stock issuable upon exercise or conversion of the foregoing
securities.
- 14 -
<PAGE>
OTHER MATTERS
The Company's Board is not presently aware of any matters to be
presented at the meeting other than those described above. However, if other
matters properly come before the meeting, it is the intention of the persons
named in the accompanying proxy to vote said proxy on such matters in accordance
with their judgment.
Shareholder Proposals
Any shareholder desiring to have a proposal included in the Company's
proxy statement for its 1998 Annual Meeting must deliver such proposal (which
must comply with the requirements of Rule 14a-8 promulgated under the Securities
Exchange Act of 1934) to the Company's principal executive offices not later
than February 1, 1998.
Annual Report
The Company's Annual Report on Form 10-KSB with certified financial
statements required to be filed for the fiscal year ended December 31, 1996,
accompanies this Notice and Proxy Statement and was mailed this date to all
shareholders of record on June 4, 1997. Any exhibit to the annual report on Form
10-KSB will be furnished to any requesting person who sets forth a good faith
representation that he or she was a beneficial owner of the Company's Common
Stock on June 4, 1997. The fee for furnishing a copy of any exhibit will be 25
cents per page plus $3.00 for postage and handling.
- 15 -
<PAGE>
Exhibit A
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.
- 2 -
<PAGE>
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.
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
- 3 -
<PAGE>
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 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.
- 4 -
<PAGE>
(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
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. 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.
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.
- 5 -
<PAGE>
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.
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.
- 6 -
<PAGE>
(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.
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
- 7 -
<PAGE>
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:
(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.
- 8 -
<PAGE>
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.
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
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<PAGE>
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. 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
- 10 -
<PAGE>
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.
(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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<PAGE>
Exhibit B
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.
<PAGE>
(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 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
- 3 -
<PAGE>
representative or designated beneficiary) the Restricted Stock
deposited pursuant to this paragraph 7.
(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
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<PAGE>
(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 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.
- 5 -
<PAGE>
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
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.
- 6 -
<PAGE>
PROXY
8888
INTERNATIONAL FIBERCOM, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE COMPANY'S
BOARD OF DIRECTORS FOR THE 1997 ANNUAL MEETING
OF STOCKHOLDERS TO BE HELD JULY 21, 1997
The undersigned hereby appoints Joseph P. Kealy and Terry W. Beiriger
and each of them, with full power of substitution, as proxies, to represent the
undersigned at the 1997 Annual Meeting of Stockholders of International
FiberCom, Inc. ("Company") to be held at the Hilton Pavillion, 1011 West Holmes
Avenue, Mesa, Arizona 85202 on July 21, 1997 at 8:00 a.m., Mountain Standard
Time, and at any adjournment thereof, and to vote all shares of the Company's
Common Stock standing in the name of the undersigned on the matters set forth on
the reverse and upon other matters that may properly come before the meeting or
any adjournment thereof as follows:
(Continued and to be signed on other side)
<PAGE>
Please date, sign and mail your
proxy card back as soon as possible!
Annual Meeting of Shareholders
INTERNATIONAL FIBERCOM, INC.
July 21, 1997
\/ Please Detach and Mail in the Envelope Provided \/
................................................................................
A [X] Please mark your -- |
avotes as in this | |
example ----
<TABLE>
<S> <C> <C> <C>
VOTE FOR WITHOLD AUTHORITY Cumulative Votes for one or more
all nominees to vote for all nominees as follows:
listed at right nominees listed at right
ITEM NO. 2. [ ] [ ] Joseph P. Kealy_________________
ELECTION OF SIX Jerry Kleven __________________
DIRECTORS V. Tlhompson Brown, Jr. ________
INSTRUCTIONS: To withold authority to vote for John F. Kealy __________________
any individual nominee, write that nominee's name Edwin L. King __________________
on the line below. Richard J. Seminoff ____________
__________________________________________________
FOR AGAINST ABSTAIN
ITEM NO. 1. RATIFICATION OF INDEPENDENT [ ] [ ] [ ]
ACCOUNTANTS
VOTE FOR RATIFICATION of
SEMPLE & COOPER as the
independent public accountants for
the Company's fiscal year 1997.
ITEM NO. 3. APPROVAL OF ADOPTION OF [ ] [ ] [ ]
1997 STOCK OPTION PLAN AND
1997 RESTRICTED STOCK PLAN
VOTE FOR Adoption of the 1997
Stock Option Plan and 1997 Restricted Stock Plan.
</TABLE>
The shares represented by this
Proxy will be voted at the meeting in
accordance with the specifications
appearing above. THE SHARES WILL BE
VOTED "FOR" ANY PROPOSAL FOR WHICH NO
CONTRARY SPECIFICATION IS MADE.
PLEASE DATE, SIGN AND RETURN PROMTLY.
<TABLE>
<S> <C> <C> <C>
Signed ___________________ DATED:_________, 1997 Signed ___________________ DATED:_________, 1997
CO-OWNER, IF ANY
</TABLE>
NOTE: Please sign exactly as name appears on the stock certificate. When
signing as attorney, executor, administrator, trustee, guardian etc.
give full title as such. If stock is held jointly, each joint owner
should sign.
