-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GxKFvoQmnuUcbp3WC4KG/RjLzVSbJPy9tsgem6h+fSviP3c3FBvCI4KPk5t45G+0 wMT7JdoCr1tc/DcJg8DKtA== 0000950147-00-000416.txt : 20000321 0000950147-00-000416.hdr.sgml : 20000321 ACCESSION NUMBER: 0000950147-00-000416 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000320 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONAL FIBERCOM INC CENTRAL INDEX KEY: 0000924632 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 860271282 STATE OF INCORPORATION: AZ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-86213 FILM NUMBER: 573583 BUSINESS ADDRESS: STREET 1: 3410 E UNIVERSITY STREET 2: SUITE 180 CITY: PHOENIX STATE: AZ ZIP: 85034 BUSINESS PHONE: 6029411900 MAIL ADDRESS: STREET 1: 3410 E UNIVERSITY STREET 2: SUITE 180 CITY: PHOENIX STATE: AZ ZIP: 85034 S-3/A 1 AMEND NO. 1 TO FORM S-3 OF INT'L FIBERCOM, INC. As filed with the Securities and Exchange Commission on March 17, 2000 Registration No. 333- 86213 ================================================================================ 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) 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
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
======================================================================================================================== 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) - ------------------------------------------------------------------------------------------------------------------------ Common Stock, no par value 2,098,944 $7.375 $15,479,712 $4,691 ========================================================================================================================
(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. ================================================================================ 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 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 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 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 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 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 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 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 - 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 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. II-1 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 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. II-3 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. II-4 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. II-5 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; II-6 (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. II-7 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 EX-23.1 2 CONSENT OF BDO SEIDMAN, LLP [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 -----END PRIVACY-ENHANCED MESSAGE-----