As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333- 86213
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNATIONAL FIBERCOM, INC.
(Exact name of Registrant as specified in its charter)
ARIZONA 8-0271282
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
3410 East University, Suite 180
Phoenix, Arizona 85034, (602) 941-1900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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<S> <C>
Mr. Joseph P. Kealy The Commission is Requested to Send Copies of All
International Fibercom, Inc. Communications To:
3410 East University, Suite 180 Christian J. Hoffmann, Iii
Phoenix, Arizona 85034 Streich Lang, P.a.
(602) 941-1900 2 North Central Avenue
(Name, Address, Including Zip Code, and Telephone Number, Phoenix, Arizona 85004-2391
Including Area Code, of Agent for Service of Service) (602) 229-5200
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO PUBLIC:
From time to time after the Registration Statement becomes effective as
determined by market conditions and the needs of the Selling Shareholders.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Security to be Registered Registered(1) Offering Price Per Unit(2) Aggregate Offering Price(2) Registration Fee(3)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 2,098,944 $7.375 $15,479,712 $4,691
========================================================================================================================
</TABLE>
(1) In the event of a stock split stock dividend, or similar transaction
involving the Company's Common Stock, in order to prevent dilution, the
number of shares registered shall automatically be increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act.
(2) Estimated for purposes of calculating the amount of registration fee only.
(3) A registration fee in the amount of $4,691 was paid with respect to this
registration statement on August 31, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
PROSPECTUS
INTERNATIONAL FIBERCOM, INC.
2,098,944 SHARES OF COMMON STOCK, NO PAR VALUE
----------
This prospectus is part of a registration statement that covers 2,098,944
shares of our common stock. These shares may be offered and sold from time to
time by the selling shareholders ("Selling Shareholders"). We will not receive
any of the proceeds from the sale.
Our common stock is traded on the NASDAQ National Market under the Symbol
"IFCI." On March 15, 2000, the average of the high and low prices of the common
stock on the NASDAQ National Market was $24.00 per share.
Unless the context indicates otherwise, all references to "we," "our," the
"Company" or "IFC" refer to International FiberCom, Inc. and its subsidiaries.
Our principal executive offices are located at 3410 East University, Suite 180,
Phoenix, Arizona 85034. Our telephone number is (602) 387-4000.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN RISKS
RELATED TO AN INVESTMENT IN THE COMMON STOCK.
----------
The date of this Prospectus is March 17, 2000
<PAGE>
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION........................................... 3
USE OF PROCEEDS............................................................... 6
SELLING SHAREHOLDERS.......................................................... 7
PLAN OF DISTRIBUTION.......................................................... 8
LEGAL MATTERS................................................................. 9
EXPERTS....................................................................... 9
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. No
one has been authorized to provide you with different information.
The shares of common stock are not being offered in any jurisdiction where
the offer is not permitted.
You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of the documents.
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, NY and Chicago, IL.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public at the SEC's
web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with it, which means we can disclose important information to you by referring
to those documents. The information incorporated by reference is considered to
be a part of this prospectus, and information that we file later with the SEC
will automatically update and supersede previously filed information, including
information contained in this document.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities and Exchange Act of 1934 until the Selling Shareholders sell all of
their shares.
* Annual Report on Form 10- K for the fiscal year ended December 31,
1999;
* The description of our common stock that is contained in the
Registration of Certain Classes of Securities Pursuant to Section
12(b) or (g) of the Securities Exchange Act of 1934 on Form 8-A, dated
August 9, 1994, as amended from time to time.
You may request a copy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address and
phone number:
Secretary
International FiberCom, Inc.
3410 East University, Suite 180
Phoenix, Arizona 85034
(602) 387-4000
You should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. We have not
authorized anyone else to provide you with different information. The Selling
Shareholders will not make an offer of these shares in any state where the offer
is not permitted. You should not assume that the information in this prospectus
or any supplement is accurate as of any date other than the date on the front of
the documents.
3
<PAGE>
RISKS RELATING TO OFFERING
SALES OF OUR COMMON STOCK BY OUR OFFICERS AND DIRECTORS OR OTHER LARGE
SHAREHOLDERS MAY LOWER THE MARKET PRICE OF OUR COMMON STOCK
Our officers and directors own an aggregate of shares of our common stock,
including exercisable stock options. If our officers and directors, or other
shareholders, sell a substantial amount of our common stock or even the
potential for such sales, it could cause the market price of our common stock to
decrease and could hurt our ability to raise capital through the sale of our
equity securities.
THE PRICE OF OUR COMMON STOCK MAY VARY SIGNIFICANTLY IN THE SHORT TERM DUE TO:
The market price of our common stock has historically shown a large amount of
price volatility. The last three years have been marked by generally favorable
industry conditions, acquisitions of new businesses and substantially improving
operating results, including revenue and net income from recently acquired
businesses which has resulted in a large increase in the market price of our
common stock.
- -- LARGE FLUCTUATIONS IN THE STOCK MARKET IN GENERAL
The stock market has also experienced extreme price and volume fluctuations that
have affected the market price of many companies. These fluctuations have often
been unrelated to the operating performance of particular companies. Our common
stock price may be affected by these fluctuations.
- -- FLUCTUATIONS IN OUR OPERATING RESULTS, NEW TECHNOLOGY, ANNOUNCEMENTS OF NEW
ACQUISITIONS OR OTHER FACTORS
The trading price of our common stock in the future could be subject to wide
fluctuations in response to many factors including:
* quarterly variations in our operating results or those of our competitors;
* actual or anticipated announcements of new acquisitions by us or our
competitors;
* actual or anticipated announcements of new contracts by us or our
competitors;
* technical innovations or new products by our competitors;
* changes in analysts' estimates of our financial performance;
* changes in capital plans of our cable and other customers; and
* general industry, economic and financial conditions in the United States.
WE MAY ISSUE OPTIONS UNDER OUR STOCK OPTION PLANS AND SELL SHARES UNDER OUR
EMPLOYEE STOCK PURCHASE PLAN WHICH MAY DILUTE THE INTERESTS OF SHAREHOLDERS
We reserved 441,707 shares of our common stock for issuance under our 1994
Incentive Stock Option and Restricted Stock Purchase Plans, 3,200,000 shares of
common stock for issuance under our 1997 Incentive Stock Option and Restricted
Stock Plans and 2,000,000 shares for issuance under our Employee Stock Purchase
Plan.
4
<PAGE>
The exercise price for incentive stock options granted under our plans are set
at the market price on the date of grant or, in the case of certain holders,
110% of the market price on the date of grant. Non-statutory options are also
granted from time to time outside of our stock option plans. The exercise price
of these non-statutory stock options are set at the market price on the date of
grant. If stock options with an exercise price lower than the current market
price are exercised, our stockholders will experience dilution. Also, the terms
upon which we will be able to obtain equity capital may be affected since the
holders of outstanding options can be expected to exercise them at a time when
we would, in all likelihood, be able to obtain needed capital on terms more
favorable to us than those provided in outstanding options.
WE MAY ISSUE EQUITY SECURITIES IN THE FUTURE WHOSE TERMS AND RIGHTS ARE B
SUPERIOR TO THOSE OF OUR COMMON STOCK
Our Articles of Incorporation authorize the issuance of up to 10,000,000 shares
of preferred stock. As of March 17, 2000, our Board of Directors had designated
4,400 shares as Series A Preferred, 4,400 shares as Series Preferred and 1,000
shares as Series C Preferred. None of these shares remain outstanding.
Additional shares of preferred stock may be issued by our board of directors
from time to time in one or more series for the consideration and with the
rights and preferences as our board of directors decides. Any shares of
preferred stock that may be issued in the future could be given voting and
conversion rights that could dilute the voting power and equity of holders of
shares of common stock, and have preferences over shares of common stock with
respect to dividends and in liquidation.
WE HAVE NEVER PAID DIVIDENDS ON OUR COMMON STOCK AND DO NOT PLAN TO DO SO IN THE
FUTURE
Our equity securities are entitled to receive any dividends that may be declared
by our board of directors. We have not paid any cash dividends on our common
stock and we do not expect to pay cash dividends on our preferred stock or
common stock in the near term. We intend to retain any future earnings to
provide funds for operations of our business. Investors who anticipate the need
for dividends from investments should not purchase our common stock.
YEAR 2000 DISCLOSURE
We experienced no significant disruptions in our information technology and
non-information technology systems with respect to the Year 2000 date change. We
are not aware of any material problems resulting from year 2000 issues, either
with our products, our services, our internal systems or the products and
services of third parties. We will continue to monitor our critical computer
applications and those of our suppliers and vendors throughout the year 2000 to
ensure any latent risks that may arise are addressed promptly.
5
<PAGE>
FORWARD-LOOKING INFORMATION
This prospectus contains certain forward-looking statements and information
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. The cautionary statements made in this
paragraph and elsewhere in this prospectus should be read as being applicable to
all related forward-looking statements wherever they appear in this prospectus.
Forward-looking statements, by their very nature, include risks and
uncertainties. Accordingly, our actual results could differ materially from
those discussed herein. A wide variety of factors could cause or contribute to
such differences and could adversely impact revenues, profitability, cash flows
and capital needs. Such factors, many of which are beyond our control, include
the following: our success in obtaining new contracts; the volume and type of
work orders that are received under such contracts; the accuracy of the cost
estimates for the projects; our ability to complete our projects on time and
within budget; levels of, and ability to, collect accounts receivable;
availability of trained personnel and utilization of our capacity to complete
work; competition and competitive pressures on pricing; and economic conditions
in the United States and in the region we serve.
USE OF PROCEEDS
All net proceeds from the sale of the common stock covered by this
prospectus will be received by the selling shareholders who offer and sell their
shares. We will not receive any proceeds from the sale of the common stock by
the selling shareholders.
6
<PAGE>
SELLING SHAREHOLDERS
The following table provides certain information with respect to the common
stock beneficially owned by the selling shareholders who are entitled to use
this prospectus. The information in the table is as of the date of this
prospectus. No selling shareholder has had a material relationship with IFC
within the past three years other than as a result of the ownership of common
stock. The common stock listed below may be offered from time to time by the
selling shareholders named below or their nominees:
Shares Available Percent Owned
Name and Address of Shares for Sale Under After Completion
Selling Shareholder Owned(1) this Prospectus of the Offering(1)
- ------------------- -------- --------------- ------------------
Randy C. Jensen 635,980 635,980
2078 High Vista Dr.
Lakeland, FL 33813
Terry D. Lipham 660,020 666,020
9940 Golf Boulevard
Treasure Island, FL 33706
William and Carolyn Delgado (2) 229,456 229,456
5945 Palm Drive
Carmichael, CA 95608
Clyde Berg 87,386 87,386
10050 Bandley
Cupertino, CA 95014
Former shareholders of 276,016 276,016
All Star Telecom, Inc. (2)
BlueRidge Solutions, L.C. 51,632 51,632
1990 W. Camelback
Phoenix, AZ 85015
Former shareholders of 152,454 152,454
AeroComm, Inc. (3)
(1) Because (i) a selling shareholder may offer all or some of the shares of
common stock which he holds pursuant to the offerings contemplated by this
prospectus, (ii) the offerings of shares of common stock are not
necessarily being underwritten on a firm commitment basis, and (iii) a
selling shareholder could purchase additional shares of common stock from
time to time, no estimate can be given as to the amount of shares of common
stock that will be held by any selling shareholder upon termination of such
offerings. See "PLAN OF DISTRIBUTION."
(2) All of the shares owned by the former shareholders of All Star were
acquired in connection with our purchase of all or substantially all of the
assets of All Star. Under the terms of the purchase we agreed to register
the shares received in this purchase. The shares held by these
shareholders, excluding William and Carolyn Delgado and Clyde Berg, do not
exceed one percent (1%) of our capitalization. In the past three years,
none of these holders has had a material relationship with us, except that
certain of the individuals included in this group have become our employees
after the purchase.
(3) All of the shares owned by the former shareholders of AeroComm were
acquired in connection with our purchase of all or substantially all of the
assets of AeroComm. Under the terms of the purchase we agreed to register
the shares received in this purchase. The shares held by these shareholders
do not exceed one percent (1%) of our capitalization. In the past three
years, none of these holders has had a material relationship with us,
except that certain of the individuals included in this group have become
our employees after the purchase.
7
<PAGE>
PLAN OF DISTRIBUTION
We are registering the common shares covered by this prospectus for the
selling shareholders. As used in this prospectus, "selling shareholders"
includes the pledgees, donees, transferees or others who may later hold the
selling shareholders' interests. We will pay the costs and fees of registering
the common shares, but the selling shareholders will pay any brokerage
commissions, discounts or other expenses relating to the sale of the common
shares.
The selling shareholders may sell the common shares in the over-the-counter
market or otherwise, at market prices prevailing at the time of sale, at prices
related to the prevailing market prices, or at negotiated prices. In addition,
the selling shareholders may sell some or all of their common shares through:
- a block trade in which a broker-dealer may resell a portion of the
block, as principal, in order to facilitate the transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers.
When selling the common shares, the selling shareholders may enter into
hedging transactions. For example, the selling shareholders may:
- enter into transactions involving short sales of the common shares by
broker-dealers;
- sell common shares short themselves and redeliver such shares to close
out their short positions;
- enter into option or other types of transactions that require the
selling shareholder to deliver common shares to a broker-dealer, who
will then resell or transfer the common shares under this prospectus;
or
- loan or pledge the common shares to a broker-dealer, who may sell the
loaned shares or, in the event of default, sell the pledged shares.
The selling shareholders may negotiate and pay broker-dealers commissions,
discounts or concessions for their services. Broker-dealers engaged by the
selling shareholders may allow other broker-dealers to participate in resales.
However, the selling shareholders and any broker-dealers involved in the sale or
resale of the common shares may qualify as "underwriters" within the meaning of
the Section 2(a)(11) of the Securities Act of 1933 (the "1933 Act"). In
addition, the broker-dealers' commissions, discounts or concession may qualify
as underwriters' compensation under the 1933 Act. If the selling shareholders
qualify as "underwriters," they will be subject to the prospectus delivery re
quirements of Section 5(b)(2) of the 1933 Act. We have informed the selling
shareholders that the anti-manipulative provisions of Regulation M promulgated
under the Exchange Act may apply to their sales in the market.
In addition to selling their common shares under this prospectus, the
selling shareholders may:
- agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the common shares, including
liabilities arising under the 1933 Act;
8
<PAGE>
- transfer their common shares in other ways not involving market makers
or established trading markets, including directly by gift,
distribution, or other transfer; or
- sell their common shares under Rule 144 of the 1933 Act rather than
under this prospectus, if the transaction meets the requirements of
Rule 144.
LEGAL MATTERS
The legality of the securities offered hereby has been passed upon for us
by Streich Lang, P.A., Phoenix, Arizona. One or more members of such law firm
who have worked on substantive matters for us own shares of our common stock
constituting less than 1% of our total outstanding common stock.
EXPERTS
The financial statements incorporated by reference in this Prospectus have
been audited by BDO Seidman, LLP and by Semple & Cooper, LLP, independent
certified public accountants, to the extent and for the periods set forth in the
respective reports of such firms incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
such firms as experts in auditing and accounting.
9
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses of the
Company in connection with the offering described in the Registration Statement.
Securities and Exchange Commission Registration Fee $ 4,691
Legal Fees and Expenses 20,000
Accounting Fees and Expenses 5,000
Other Expenses 1,000
-------
Total Expenses $30,691
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ARTICLE XII of the Articles of Incorporation of the Registrant provides as
follows:
The Corporation shall indemnify any person against expenses, including
without limitation, attorney's fees, judgements, fines and amounts paid in
settlement, actually and reasonably incurred by reason of the fact that he or
she is or was a director, officer, employee or agent of the Corporation or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, in all circumstances in which, to the extent that, such
indemnification is specifically permitted and provided for by the laws of the
State of Arizona as then in effect.
ARTICLE XII of the Bylaws of the registrant provide as follows:
12.01 Indemnification. To the full extent permitted by Arizona law, the
Corporation shall indemnify and pay the expenses of any person who is or was
made, or threatened to be made, a party to an action or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that he
is or was a director, officer, employee, trustee or agent of or for the
Corporation or is or was serving at the request or with the prior approval of
the Corporation as a director, officer, employee, trustee or agent of another
corporation, trust or enterprise, against any liability asserted against him and
incurred by him in any capacity or arising out of his status as such, whether or
not the Corporation would have the power to indemnify him against such liability
under the provisions of these Bylaws.
Section 10-202(B)(1) and Chapter 8, Article 5 (Section 10-850 et seq.) of the
General Corporation Law of Arizona, as amended, apply to registrant and provide
as follows:
Section 10-202(B). The articles of incorporation shall set forth:
1. If elected by the incorporators, a provision eliminating or limiting the
liability of a director to the corporation or its shareholders for money
damages for any action taken or any failure to take any action as a
director, except for any of the following:
(a) The amount of any financial benefit received by a director to
which the director is not entitled.
(b) An intentional infliction of harm on the corporation or the
shareholders.
(c) A violation of Section 10-833.
(d) An intentional violation of criminal law.
As indicated above, the Registrant has included in its Articles of
Incorporation a provision limiting director liability in accordance with the
statute.
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Chapter 8 -- Directors and Officers, Article 5 -- Indemnification.
Section 10-850. Definitions
1. "Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the predecessor's
existence ceased on consummation of the transaction.
2. "Director" means an individual who is or was a director of a corporation or
an individual who, while a director of a corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. A director is considered to be
serving an employee benefit plan at the corporation's request if his duties to
the corporation also impose duties on or otherwise involve services by him to
the plan or to participants in or beneficiaries of the plan. Director includes
the estate or personal representative of a director.
3. "Expenses" includes attorney fees and all other costs and expenses reasonably
related to a proceeding.
4. "Liability" means the obligation to pay a judgment, settlement, penalty or
fine, including an excise tax assessed with respect to an employee benefit plan,
or reasonable expenses incurred with respect to a proceeding and includes
obligations and expenses than have not yet been paid by the indemnified person
but that have been or may be incurred.
5. "Official capacity" means, if used with respect to a director, the office of
director in a corporation and, if used with respect to an individual other than
a director, as contemplated in Section 10-856, the office in a corporation held
by the officer or the employment or agency relationship undertaken by the
employee or agent on behalf of the corporation. Official capacity does not
include service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise.
6. "Outside director" means a director who, when serving as a director, was not
an officer, employee or holder of more than five per cent of the outstanding
shares of any class of stock of the corporation.
7. "Party" includes an individual who was, is or is threatened to be made a
named defendant or respondent in a proceeding.
8. "Proceeding" means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal.
Section 10-851. Authority to indemnify
A. Except as provided in subsection D of this section and in Section 10-854, a
corporation may indemnify an individual made a party to a proceeding because the
individual is or was a director against liability incurred in the proceeding if
all of the following conditions exist:
1. The individual's conduct was in good faith
2. The individual reasonably believed:
(a) In the case of conduct in an official capacity with the
corporation, that the conduct was in its best interests.
(b) In all other cases, that the conduct was at least not opposed to
its best interests.
3. In the case of any criminal proceedings, the individual had no
reasonable cause to believe the conduct was unlawful
B. A director's conduct with respect to an employee benefit plan for a purpose
reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirements of
subsection A, paragraph 2, subdivision (a) of this section.
II-2
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C. The termination of a proceeding by judgment, order, settlement or conviction
or on a plea of no contest or its equivalent is not of itself determinative that
the director did not meet the standard of conduct described in this section.
D. A corporation may not indemnify a director under this section either:
1. In connection with a proceeding by or in the right of corporation in
which the director was adjudged liable to the corporation.
2. In connection with any other proceeding charging improper personal
benefit to the director, whether or not involving action in the director's
official capacity, in which the director was adjudged liable on the basis
that personal benefit was improperly received by the director.
E. Indemnification permitted under this section in connection with a proceeding
by or in right of the corporation is limited to reasonable expenses incurred
during the proceeding.
Section 10-852. Mandatory indemnification
A. Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was the prevailing party, on the merits or otherwise,
in the defense of any proceeding to which the director was a party because the
director is or was a director of the corporation against reasonable expenses
incurred by the director in connection with the proceeding.
B. Unless limited by its articles of incorporation, Section 10-851, subsection D
or subsection C of this section, a corporation shall indemnify an outside
director against liability. Unless limited by its articles of incorporation or
subsection C of this section, a corporation shall pay an outside director's
expenses in advance of a final disposition of the proceeding, if the director
furnishes the corporation with a written affirmation of the director's good
faith belief that the director met the standard of conduct described in Section
10-851, subsection A and the director furnishes the corporation with a written
undertaking executed personally, or on the director's behalf, to repay the
advance if it is ultimately determined that the director did not meet the
standard of conduct. The undertaking required by this subsection is an unlimited
general obligation of the director but need not be secured and shall be accepted
without reference to the director's financial ability to make repayment.
C. A corporation shall not provide the indemnification or advance payment of
expenses described in subsection B if this section if a court of competent
jurisdiction has determined before payment that the outside director failed to
meet the standards described in Section 10-851, subsection A, and a court of
competent jurisdiction does not otherwise authorize payment of indemnification
or expenses under subsection B of this section for more than sixty days after a
request is made unless ordered to do so by a court of competent jurisdiction.
Section 10-853. Advance for expenses
A. A corporation may pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding in advance of final disposition of the
proceeding if the following conditions exist:
1. The director furnishes the corporation with a written affirmation of the
director's good faith belief that the director met the standard of conduct
described in Section 10-851.
2. The director furnishes the corporation with a written undertaking
executed personally, or on the director's behalf, to repay the advance if
it is ultimately determined that the director did not meet the standard of
conduct.
3. A determination is made that the facts then known to those making the
determination would not preclude indemnification under this article.
B. The undertaking required by subsection A, paragraph 2 of this section is an
unlimited general obligation of the director but need not be secured and shall
be accepted without reference to the director's financial ability to make
repayment.
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C. Determinations and authorizations of payments under this section shall be
made in the manner specified in Section 10-855.
D. This section does not apply to the advancement of expenses to or for the
benefit of an outside director. Advances to outside directors shall be made
pursuant to Section 10-852.
Section 10-854. Court ordered indemnification
Unless the corporation's articles of incorporation provide otherwise, a director
of the corporation who is a party to a proceeding may apply for indemnification
to the court conducting the proceeding or to another court of competent
jurisdiction. On receipt of an application, the court after giving notice the
court considers necessary may order indemnification if it determines either:
1. The director is entitled to mandatory indemnification under Section
10-852, in which case the court shall also order the corporation to pay the
director's reasonable expenses incurred to obtain court ordered
indemnification.
2. The director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the director met the
standard of conduct set forth in Section 10-851 or was adjudged liable as
described in Section 10-851, subsection D, but if the director was adjudged
liable under Section 10-851, subsection D, indemnification is limited to
reasonable expenses incurred.
Section 10-855. Determination and authorization of indemnification
A. A corporation may not indemnify a director under Section 10-851 unless
authorized in the specific case after determination has been made that
indemnification of the director is permissible in the circumstances because the
director has met the standard of conduct set forth in Section 10-851.
B. The determination shall be made either:
1. By the board of directors by a majority vote of the directors not at the
time parties to the proceeding.
2. By special legal counsel:
(a) Selected by majority vote of the disinterested directors.
(b) If there are no disinterested directors, selected by majority
vote of the board.
3. By the shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding shall not be voted
on the determination.
C. Neither special legal counsel nor any shareholder has any liability
whatsoever for the determination made pursuant to this section. In voting
pursuant to subsection B of this section, directors shall discharge their duty
in accordance with Section 10-830.
D. Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection B,
paragraph 2 of this section to select counsel.
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Section 10-856. Indemnification of officers, employees and agents
Unless a corporation's articles of incorporation provide otherwise:
1. An officer of the corporation who is not a director is entitled to
mandatory indemnification against liability under Section 10-852 and is
entitled to apply for court ordered indemnification against liability under
Section 10-854, in each case to the same extent as a director.
2. The corporation may indemnify against liability and advance expenses
under this article to an officer, employee or agent of the corporation who
is not a director to the same extent as to a director.
3. A corporation may also indemnify against liability and advance expenses
to an officer, employee or agent to the extent, consistent with public
policy, that indemnification may be provided by its articles of
incorporation, bylaws, general or specific action of its board of directors
or contract, provided that if the officer, employee or agent is also a
director, indemnification against liability arising from serving as a
director is limited to the other provisions of chapters 1 through 17 of
this title.
Section 10-857. Insurance
A corporation may purchase and maintain insurance on behalf of an individual who
is or was a director, officer, employee or agent of the corporation or who,
while a director, officer, employee or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against liability asserted against or incurred by the individual in that
capacity or arising from the individual's status as a director, officer,
employee or agent, whether or not the corporation would have power to indemnify
the individual against the same liability under Section 10-851 or Section
10-852.
Section 10-858. Application of article
A. A provision that treats a corporation's indemnification of or advance for
expenses to directors and that is contained in its articles of incorporation,
its bylaws, a resolution of its shareholders or board of directors or a contract
or otherwise is valid only if and to the extent the provision is consistent with
this article. If the articles of incorporation limit indemnification or advances
for expenses, indemnification and advances for expenses are valid only to the
extent consistent with the articles.
B. This article does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with the director's appearance as
a witness in a proceeding at a time when the director has not been made a named
defendant or respondent to the proceeding.
The above discussion is qualified in its entirety by reference to the
Company's Articles of Incorporation and Bylaws.
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<PAGE>
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION REFERENCE
- ------ ----------- ---------
3.1 Restated Articles of Incorporation of Registrant (1)
dated October 21, 1981
3.2 Amendment to Articles of Incorporation of Registrant (1)
dated April 18, 1986
3.3 Amendment to Articles of Incorporation of Registrant (1)
dated May 20, 1987
3.4 Amendment to Articles of Incorporation of Registrant (1)
dated February 4, 1988
3.5 Amendment to Articles of Incorporation of Registrant (1)
dated August 15, 1991
3.6 Amendment to Articles of Incorporation of Registrant (1)
dated June 3, 1994
3.7 Amended, Revised, and Restated Bylaws of Registrant (1)
4.1 Form of Common Stock Certificate (1)
5.1 Opinion of Streich Lang, P.A. as to the legality of (2)
securities being registered
23.1 Consent of BDO Seidman, LLP as Independent Auditors *
23.2 Consent of Semple & Cooper, LLP as Independent (2)
Auditors
23.3 Consent of Streich Lang, P.A. (3)
24. Power of Attorney (2)
27.1 Financial Data Schedule (4)
- ----------
* Filed herewith
(1) Filed with Registration Statement on Form SB-2, No. 33-79730, dated August
10, 1994
(2) Previously filed with original filing of this registration statement.
(3) Included in Exhibit 5.1
(4) Previously filed on Form 10- K for the year ended December 31, 2000.
ITEM 17. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
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<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed with or furnished
to the Commission by the Company pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the small business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the small business
issuer will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the ===
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Phoenix and State of
Arizona on March 17, 2000.
INTERNATIONAL FIBERCOM, INC., an
Arizona corporation
/s/ Joseph P. Kealy
----------------------------------------
Joseph P. Kealy, Chairman of the Board
and President (Chief Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature and Title Date
------------------- ----
/s/ Joseph P. Kealy March 17, 2000
- -------------------------------------------
Joseph P. Kealy, Chairman of the Board,
President, Principal Executive Officer and
Director - *Attorney in Fact
* March 17, 2000
- -------------------------------------------
V. Thompson Brown, Jr., Director
* March 17, 2000
- -------------------------------------------
John F. Kealy, Director
* March 17, 2000
- -------------------------------------------
Richard J. Seminoff, Director
* March 17, 2000
- -------------------------------------------
Jerry A. Kleven, Director
* March 17, 2000
- -------------------------------------------
John P. Stephens, Director
* March 17, 2000
- -------------------------------------------
C. James Jensen, Director
* March 17, 2000
- -------------------------------------------
Terry W. Beiriger, Secretary and Treasurer
(Principal Accounting Officer)
/s/ John P. Morbeck March 17, 2000
- -------------------------------------------
John P. Morbeck, Director
S-1
[LETTERHEAD]
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
International FiberCom, Inc.
3410 East University Drive, Suite 180
Phoenix, Arizona 85034
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated March 10,
2000, relating to the consolidated financial statements of International
FiberCom, Inc. appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1999.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
Los Angeles, California
March 17, 2000
