-----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, UkrUrXsWwdBkrAdv/TX71LmX75b1suQoKBU87S4GMxew5hYUlV611z/EXlmGWzkH bSlaFJmzE75k+N4/hXauUA== 0000950147-02-000148.txt : 20020414 0000950147-02-000148.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950147-02-000148 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20020131 EFFECTIVENESS DATE: 20020131 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-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-81860 FILM NUMBER: 02524011 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-8 1 e-8043.txt REGISTRATION STATEMENT OF INTERNATIONAL FIBERCOM As filed with the Securities and Exchange Commission on January 31, 2002 Registration Statement No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 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 (I.R.S. Employer Identification No.) Incorporation or Organization) 3230 E. Broadway Rd., Ste. 200, Phoenix, Arizona 85040 (Address of Principal Executive Offices) (Zip Code) 2000 Directors Stock Option Plan 2002 Stock Plan (Full Title of the Plan) Joseph P. Kealy International FiberCom, Inc. 3230 E. Broadway Rd. Ste. 200 Phoenix , Arizona 85040 (Name and Address of Agent for Service) (602) 387-4000 (Telephone Number, Including Area Code, of Agent for Service) Copies to: Christian J. Hoffmann, III, Esq. Quarles & Brady Streich Lang LLP Renaissance One Two North Central Avenue Phoenix, Arizona 85004 (602) 229-5336 CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Maximum Proposed Maximum Amount of Amount To Be Offering Price Aggregate Offering Registration Title of Securities To Be Registered Registered Per Share(1) Price(1) Fee - ------------------------------------------------------------------------------------------------------------------------ Common Stock, no par value 8,500,000(2) $.19 $1,615,000 $149 ========================================================================================================================
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended (the "Act"), solely for purposes of calculating the registration fee. The calculation is based on the average of the high and low prices as quoted on the Nasdaq National Market on January 29, 2002 (the "Market Price"). (2) 1,000,000 of such shares are issuable upon exercise of options granted pursuant to the 2000 Directors Stock Option Plan and 7,5000,000 of such shares are issuable pursuant to the 2002 Stock Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information previously filed with the Securities and Exchange Commission (the "Commission") by International FiberCom, Inc. (the "Company") are hereby incorporated by reference in this Registration Statement: (1) Annual Report on Form 10-K for the fiscal year ended December 31, 2000; (2) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001, June 30, 2001 and September 30, 2001; (3) Current Report on Form 8-K filed on June 27, 2001; (4) Definitive Proxy Statement used in connection with the Company's Annual Meeting of Stockholders held on August 3, 2001, other than the portions of such document, which by statute, by designation in such document or otherwise, are not deemed to be filed with the Commission or are not required to be incorporated herein by reference; (5) The description of the Company's capital stock contained in the Company's Registration Statement on Form 8-A filed with the Securities and Exchange Commission pursuant to Section 12 of the Securities Act of 1934; and (6) All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities registered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Certain legal matters in connection with the shares of Common Stock being registered herein will be passed upon for the Company by Quarles & Brady Streich Lang LLP. Christian J. Hoffmann, III, a partner of the law firm, is eligible to receive shares of the Company's Common Stock pursuant to this Registration Statement. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Our articles of incorporation and bylaws limit, to the maximum extent permitted by Arizona law, the liability of our directors for monetary damages arising from a breach of their duties as directors. The limitation of liability does not affect the availability of equitable remedies, such as injunctive relief or rescission. Our articles of incorporation require us to indemnify our directors and officers, to the maximum extent permitted by Arizona law, against liability arising against them for acts or omissions within the scope of their authority as directors or officers. Indemnification is prohibited if our board of directors finds that the person's action or omission was willful, grossly negligent, or with fraudulent or criminal intent, or for liabilities under the Securities Act of 1933. Under Arizona law, we may indemnify a director or officer against liability incurred on account of service to us, if the director or officer: - conducted himself or herself in good faith; 2 - reasonably believed that his or her conduct (1) if in an official capacity, was in our best interests or (2) if in any other capacity, was not opposed to our best interests; - in the case of any criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful; and - did not improperly receive personal benefit. The above discussion is qualified in its entirety by reference to the Company's Articles of Incorporation and Bylaws. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See the Exhibit Index at Page 6 of this Registration Statement. ITEM 9. UNDERTAKINGS. A. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof), which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (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 paragraph (A)(1)(i) and (A)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to Directors, officers and controlling persons of the Company pursuant to the foregoing provisions described under Item 6 above, 3 or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a Director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such Director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of Phoenix, State of Arizona, on this 31st day of January, 2002. INTERNATIONAL FIBERCOM, INC. By: /s/ Joseph P. Kealy --------------------------------------- Joseph P. Kealy Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Joseph P. Kealy and Patrick R. Galligan and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated:
SIGNATURE TITLE DATE /s/ Joseph P. Kealy - ------------------------ Chairman of the Board and President Joseph P. Kealy (Principal Executive Officer) January 31, 2002 /s/ Patrick R. Galligan - ------------------------ Chief Financial Officer Patrick R. Galligan (Principal Financial and Accounting Officer) January 31, 2002 /s/ John F. Kealy - ------------------------ Director January 31, 2002 John F. Kealy /s/ Richard J. Seminoff - ------------------------ Director January 31, 2002 Richard J. Seminoff /s/ Jerry A. Kleven - ------------------------ Director January 31, 2002 Jerry A. Kleven /s/ John P. Morbeck - ------------------------ Director January 31, 2002 John P. Morbeck /s/ John P. Stephens - ------------------------ Director January 31, 2002 John P. Stephens /s/ C. James Jensen - ------------------------ Director January 31, 2002 C. James Jensen /s/ Peter A. Woog - ------------------------ Director January 31, 2002 Peter A. Woog
5 INTERNATIONAL FIBERCOM, INC. REGISTRATION STATEMENT ON FORM S-8 INDEX TO EXHIBITS Exhibit Number Description ------ ----------- 4.1 2000 Directors Stock Option Plan 4.2 2002 Stock Plan 5.1 Opinion of counsel as to legality of securities being registered 23.1 Consent of counsel (contained in Exhibit 5.1 hereto) 23.2 Consent of BDO Seidman LLP 24.1 Powers of Attorney (contained in signature pages on page 5 of this registration statement) EX-4.1 3 ex4-1.txt 2000 DIRECTORS STOCK OPTION PLAN Exhibit 4.1 INTERNATIONAL FIBERCOM, INC. 2000 DIRECTORS STOCK OPTION PLAN 1. INTRODUCTION 1.1 PURPOSE. This plan shall be known as the International FiberCom, Inc. 2000 Directors Stock Option Plan (the "Plan"). The purpose of this Plan is to promote the growth and development of International FiberCom, Inc. (the "Company") by providing increased incentives for the directors of the Company. The Plan is to help the Company to attract and retain the best available individuals to serve as non-employee members of the Board, to reward such directors for their contributions to the Company, and to maximize the identity of interest between such directors and the Company's stockholders generally. This Plan provides for the granting of non-qualified stock options. 1.2 EFFECTIVE DATE. The effective date of the Plan shall be December 4, 2000, subject to approval of the Plan by the shareholders of the Company. Options granted prior to such shareholder approval shall be expressly conditioned upon such shareholder approval of the Plan. 1.3 COMPLIANCE WITH RULE 16B-3. It is intended that the Plan and its operation comply with the provisions of Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor rule). If any provision of the Plan or any grant hereunder would disqualify the Plan or such grant under, or would not comply with, Rule 16b-3 (or any successor rule), such provision or grant shall be construed or deemed amended to conform to Rule 16b-3. 2. PLAN DEFINITIONS 2.1 DEFINITIONS. For Plan purposes, except where the context clearly indicates otherwise, the following terms shall have the meanings set forth below: 2.1.1 "BOARD" shall mean the Board of Directors of the Company. 2.1.2 "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time. 2.1.3 "COMMISSION" means the Securities Exchange Commission or any successor agency. 2.1.4 "COMMITTEE" shall mean the Board or such other committee as the Board shall designate, as described in Paragraph 4.1, "Administration." 2.1.5 "COMPANY" shall mean International FiberCom, Inc., an Arizona corporation, or any successors as provided in Paragraph 6.9, "Successors." 1 2.1.6 "COMPANY STOCK" shall mean Common Stock of the Company, and such other stock and securities that may be substituted for the Common Stock under Paragraph 3.2, "Changes in Company Stock." 2.1.7 "CONSULTANT" shall mean a non-employee of the Corporation who provides services to the Company and who is designated as a Consultant by the Board. 2.1.8 "DIRECTOR" shall mean any person who is elected or appointed to the Board. 2.1.9 "FAIR MARKET VALUE" on any date shall mean, with respect to Company Stock, if the stock is then listed and traded on a registered national securities exchange, or is quoted in the Nasdaq National Market System, the mean of the high and low sale prices recorded in composite transactions as reported in the WALL STREET JOURNAL. In the absence of reported sales on such date, or if the stock is not so listed or quoted, but is traded in the over-the-counter market, "Fair Market Value" shall be the mean of the closing bid and asked prices for such shares on such date as reported in the WALL STREET JOURNAL, or, if not so reported as obtained from a bona fide market maker in such shares. In the absence of an established market for the Common Stock, the Fair Market Value of the Common Stock shall be determined by the Board. 2.1.10 "EXCHANGE ACT" means the Securities and Exchange Act of 1934, as amended, from time to time, and the rules and regulations promulgated thereunder. 2.1.11 "EXERCISE PRICE" shall mean, with respect to each share of Company Stock subject to the Option granted, the Fair Market Value on the date of grant. 2.1.12 "OPTIONEE" shall mean any person who has been granted an Option under the Plan. 2.1.13 "OPTION" shall mean a right to purchase Company Stock granted pursuant to the Plan. 2.1.14 "OUTSIDE 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. 3. SHARES SUBJECT TO OPTION 3.1 AVAILABLE SHARES. The total number of shares of Company Stock that may be issued under the Plan shall in the aggregate not exceed one million (1,000,000). Shares subject to and not issued under an Option that expires, terminates, is canceled or forfeited for any reason under the Plan shall again become available for the granting of Options. 2 3.2 CHANGES IN COMPANY STOCK. If any stock dividend is declared upon the Company Stock, or if there is any stock split, stock distribution, or other recapitalization of the Company with respect to the Company Stock, resulting in a split or combination or exchange of shares, the aggregate number and kind of shares which may thereafter be offered under the Plan shall be proportionately and approximately adjusted and the number and kind of shares then subject to Options granted to employees under the Plan and the per share Option price therefor shall be proportionately and appropriately adjusted, without any change in the aggregate purchase prices to be paid therefor. 4. ADMINISTRATION 4.1 ADMINISTRATION. The Plan shall be administered by the Board, or such other committee of the Board as the Board may from time to time determine (all of the foregoing are collectively referenced to as the "Committee"). The Committee shall be constituted so as to permit the Plan to comply with the provisions of Rule 16b-3 under the Exchange Act or any successor rule. 4.2 COMMITTEE POWERS. 4.2.1 The Committee is empowered to adopt such rules, regulations and procedures and take such other action as it shall deem necessary or proper for the administration of the Plan and, in its discretion, may modify, extend or renew any Option theretofore granted. The Committee shall also have authority to interpret the Plan, and the decision of the Committee on any questions concerning the interpretation of the Plan shall be final and conclusive. The Committee may consult with counsel, who may be counsel for the Company, and shall not incur any liability for any action taken in good faith in reliance upon the advice of counsel. 4.2.2 Subject to the provisions of the Plan, the Committee shall have full and final authority to: 4.2.2.1 designate the Outside Directors and Consultants to whom Options shall be granted; 4.2.2.2 grant Options in such form and amount as the Committee shall determine; 4.2.2.3 impose such limitations, restrictions and conditions upon any such Option as the Committee shall deem appropriate; and 4.2.2.4 waive in whole or in part any limitations, restrictions or conditions imposed upon any such Option as the Committee shall deem appropriate. 3 5. STOCK OPTIONS 5.1 GENERAL. Each option granted under the Plan shall be a nonqualified stock option. The option grant shall be evidenced by a stock option agreement between the Company and the Optionee, which shall contain the terms and conditions required by this Article 5 and such other terms and conditions, consistent with the Plan, as the Committee may deem appropriate in each case. The provisions of option grants need not be the same with respect to each recipient. The Options granted under this Plan shall be subject to adjustment under Paragraph 5.6, "Merger, Consolidation or Reorganization." 5.2 DATE OPTION GRANTED. For purposes of the Plan, a stock option shall be considered as having been granted on the date on which the Committee authorized the grant of the Option, except where the Committee has designated a later date, in which event the later date shall constitute the date of grant of the Option; provided, however, that in either case notice of the grant of the Option shall be given to the Optionee within a reasonable time. 5.3 OPTION PRICE. The price at which each share of Company Stock covered by an Option may be purchased shall be one hundred percent (100%) of the Fair Market Value of the Company Stock on the date the Option is granted. 5.4 PERIOD FOR EXERCISE. Unless otherwise determined by the Committee, each Option granted shall have a term expiring on the tenth anniversary of the date on which it was granted (the "Expiration Date"), subject to early expiration as provided in Paragraph 5.5, "Early Expiration." Each Option granted under the Plan may be exercised by the Optionee, in whole or in part, at any time prior to its Expiration Date to the extent that it is vested. 5.5 EARLY EXPIRATION. If an Optionee ceases to serve as an Outside Director, any unvested portion of the Option shall expire on the date on which the Optionee ceases to serve as an Outside Director, subject to this Paragraph 5.5, "Early Expiration," and Paragraph 5.10, "Change of Control." The vested portion of the Option shall expire or remain exercisable in accordance with this Paragraph 5.5, "Early Expiration": 5.5.1 If the service of an Optionee as an Outside Director ceases because of death or disability, as such disability is determined by the Board, the Option, whether or not vested or exercisable at the time of such termination, shall vest and be exercisable in full at any time prior to the Expiration Date by the personal representative of the Optionee's estate or the person or persons to whom the Option is transferred by will or the laws of decent and distribution, or by the Optionee or the Optionee's designated representative in the event of the Optionee's disability; 5.5.2 If the service of any Optionee as an Outside Director ceases for any reason other than death, disability or any of the matters set forth in Paragraph 5.5.4 below and provided the Board determines that the Outside Director had discharged his duties as a Director in a manner acceptable to the Board, then the Optionee may exercise the Option to the extent that it had vested as of the date of the Outside Director's termination through the Expiration Date; 4 5.5.3 If the service of an Optionee as an Outside Director ceases for any reason other than death, disability or any of the matters set forth in Paragraph 5.5.4 and the Board determines that the Optionee had failed to discharge his duties as a Director in a manner acceptable to the Board, then the Optionee may exercise the Option to the extent it had vested as of the date of termination of the Outside Director's service for a period of thirty (30) days from the date of termination; and 5.5.4 If the Optionee is terminated as an Outside Director by the Board for (i) misconduct, which includes, but is not limited to, any act of dishonesty, moral turpitude, fraud or embezzlement, (ii) unauthorized use of any disclosure of confidential information or trade secrets of the Company, or (iii) acting in such a manner deemed by the Board not in the best interest of the Company, then, notwithstanding any other provision in the Plan to the contrary, the Option shall immediately expire and cease to be outstanding. 5.6 METHOD OF EXERCISE. Each Option may be exercised in whole or in part from time to time as specified in the Stock Option Agreement. Each Optionee may exercise an Option by giving written notice of the exercise to the Company, specifying the number of shares to be purchased, accompanied by payment in full of the purchase price therefor. The purchase price may be paid in cash, by check, or, with the approval of the Committee, by delivering shares of Company Stock that have been beneficially owned by the Optionee, the Optionee's spouse, or both of them for a period of at least six months prior to the time of exercise ("Delivered Stock") or a combination of cash and Delivered Stock. Delivered Stock shall be valued at its Fair Market Value determined as of the date of exercise of the Option. No Optionee shall be under any obligation to exercise any Option hereunder. An Optionee shall not have any rights of a stockholder with respect to the shares subject to the Option until such shares shall have been delivered to the Optionee. 5.7 MERGER, CONSOLIDATION OR REORGANIZATION. In the event of a merger, consolidation or reorganization with another corporation in which the Company is not the surviving corporation, the Committee may, subject to the approval of the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company hereunder, take action regarding each outstanding and unexercised Option pursuant to either Paragraph 5.7.1 or 5.7.2 below: 5.7.1 Appropriate provision may be made for the protection of such Option by the substitution on an equitable basis of appropriate shares of the surviving corporation, provided that the excess of the aggregate Fair Market Value of the shares subject to such Option immediately before such substitution over the exercise price thereof is not more than the excess of the aggregate fair market value of the substituted shares made subject to Option immediately after such substitution over the exercise price thereof; or 5.7.2 The Committee may cancel such Option. In such event, the Company, or the corporation assuming the obligations of the Company hereunder, shall pay the Optionee an amount of cash (less normal withholding taxes) equal to the excess of the highest Fair Market Value per share of the Company Stock during the 60-day period immediately preceding the merger, consolidation or 5 reorganization over the Option exercise price, multiplied by the number of shares subject to such Option. 5.8 WITHHOLDING TAXES. Pursuant to applicable federal and state laws, the Company is or may be required to collect withholding taxes upon the exercise of an Option or the lapse of stock restrictions. The Company may require, as a condition to the exercise of an Option or the issuance of a stock certificate, that the Optionee concurrently pay to the Company (either in cash or, at the request of Grantee but in the discretion of the Committee and subject to such rules and regulations as the Committee may adopt from time to time, in shares of Delivered Stock) the entire amount or a portion of any taxes which the Company is required to withhold by reason of such exercise or lapse of restrictions, in such amount as the Committee or the Company in its discretion may determine. In lieu of part or all of any such payment, the Optionee may elect, subject to such rules and regulations as the Committee may adopt from time to time, or the Company may require that the Company withhold from the shares to be issued that number of shares having a Fair Market Value equal to the amount which the Company is required to withhold. 5.9 CONDITIONS UPON ISSUANCE OF SHARES. The Plan, the grant, the exercise of Options and the obligations of the Company shall be subject to all applicable federal and state laws, rules and regulations, and to such approvals by any regulatory or governmental agency as may be required. The Company shall not be required to issue or deliver any certificate or certificates for shares of the Company Stock prior to (i) the admission of such shares to listing on any stock exchange on which the Company Stock may then be listed, and (ii) the completion of any registration or other qualification of such shares under any state or federal law (including, without limitation, the Securities Act of 1933, as amended, and the Exchange Act), or rulings or regulations of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable. 5.10 CHANGE OF CONTROL. 5.10.1 If a Change of Control, as defined below, occurs during the term of an Option, each outstanding Option shall 5.10.1.1 be assumed or an equivalent option or right be substituted by the successor corporation or by a parent or subsidiary of the successor corporation; and 5.10.1.2 fully vest and the Optionee shall have the right to exercise the Option in full if the Optionee ceases to serve as an Outside Director for any reason within 24 months of a Change of Control, including Shares as to which the Optionee would not otherwise be vested or exercisable, provided that the Option shall not vest and be exercisable if the Optionee ceases to be an Outside Director for any of the reasons set forth in Paragraph 5.5.4. 5.10.2 For the purposes of this Paragraph 5.10, "Change of Control" shall mean an event or the last of a series of related events by which: 6 5.10.2.1 any Person directly or indirectly acquires or otherwise becomes entitled to vote stock more than 50% of the voting power in elections for Directors of the Company; or 5.10.2.2 during any 24-month period a majority of the members of the Board ceases to consist of Directors who were: 5.10.2.2.1 Directors at the beginning of the period ("Continuing Directors"), or 5.10.2.2.2 appointed to office after the start of the period by the Board with the approval of two-thirds of the incumbent Continuing Directors ("Appointed Directors"); or 5.10.2.2.3 elected to office after the start of the period by the stockholders following nomination for election by the Board with the approval of two-thirds of the incumbent Continuing Directors ("Elected Directors"); or 5.10.2.2.4 appointed to office after the start of the period by the Board of Directors with the approval of two-thirds of the incumbent Continuing, Appointed and Elected Directors; or 5.10.2.2.5 elected to office after the start of the period by the Company's stockholders following nomination for election by the Board with the approval of two-thirds of the incumbent Continuing, Appointed and Elected Directors; or 5.10.2.3 the Company merges or consolidates with another corporation, and holders of outstanding shares of the Common Stock immediately prior to the merger or consolidation do not own stock in the survivor of the merger or consolidation having more than 51% of the voting power in elections for Directors; or 5.10.2.4 the Company sells all or a substantial portion of the consolidated assets of the Company and its subsidiaries, and the Company does not own stock in the purchaser having more than 51% of the voting power in elections for Directors. 5.10.2.5 As used in this Paragraph 12, a "Person" means any "person" as that term is used in Paragraphs 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, together with all of that person's "affiliates" and "associates," as those terms are defined in Rule 12b-2 of such Act. 5.10.2.6 The following events shall not constitute a "Change of Control": 5.10.2.6.1 sale of securities by the Company; 5.10.2.6.2 any acquisition by the Company of another corporation, business or entity; or 7 5.10.2.6.3 any acquisition of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company. 6. GENERAL 6.1 NONTRANSFERABILITY. No Option shall be transferable by an Optionee otherwise than by will or the laws of descent and distribution, provided that in accordance with Internal Revenue Service guidance, the Committee, in its discretion, may grant Options that are transferable, without payment of consideration, to family members of the Optionee or to trusts or partnerships for such family members. The Committee may also amend outstanding stock options to provide for such transferability. In the event of the Optionee's death, the Optionee's beneficiary designated pursuant to Paragraph 6.10, "Beneficiary Designation," or in the absence of any such designation, the personal representative of the Optionee's estate or the person or persons to whom the option is transferred by will or the laws of descent and distribution may exercise the option in accordance with its terms. 6.2 GENERAL RESTRICTION. Each Option shall be subject to the requirement that if at any time the Board or the Committee shall determine, in its discretion, that the listing, registration, or qualification of securities upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such Option or the issue or purchase of securities thereunder, such Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board or the Committee. 6.3 NO PROMISE OF CONTINUED SERVICE AS A DIRECTOR. Nothing in the Plan or in any Option granted under the Plan shall confer on any director any right to continue as a director of the Company or affect the right of the Company to terminate his or her service to the Company at any time. 6.4 EXPIRATION AND TERMINATION OF THE PLAN. The Plan will terminate on December 3, 2010, except as to Options then outstanding under the Plan, which Options shall remain in effect until they have been exercised, the restrictions have lapsed or the Options have expired or been forfeited. The Plan may be abandoned or terminated at any time by the Board, except with respect to any Options then outstanding under the Plan. 6.5 AMENDMENTS, MODIFICATION AND TERMINATION. The Board may from time to time amend, modify, suspend or terminate the Plan; provided, however, that no such action shall be made without shareholder approval where such change would be required in order to comply with Rule 16b-3 under the Exchange Act, or any successor rule, or the Code. Subject to the terms and conditions and within the limitations of the Plan, the Committee may modify, extend or renew outstanding Options granted under the Plan, accept the surrender of outstanding Options (to the extent not theretofore exercised), reduce the exercise price of outstanding 8 Options, or authorize the granting of new Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, no modification of an Option (either directly or through modification of the Plan) shall, without the consent of the Optionee, alter or impair any rights of the Optionee under the Option. 6.6 PLAN EXPENSE. Any expenses of administering this Plan shall be borne by the Company. 6.7. CONSTRUCTION OF PLAN. The place of administration of the Plan shall be in the State of Arizona, and except as otherwise required by applicable federal laws, the Plan shall be governed by, and construed in accordance with, the laws of the State of Arizona. 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. 6.8 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. 6.9 SUCCESSORS. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. 6.10 BENEFICIARY DESIGNATION. Each Optionee may, from time to time, name any beneficiary or beneficiaries (who may be named continently or successively) who shall be entitled to exercise his or her options in accordance with their terms in the event of his or her death before he or she exercises all of his or her outstanding options. Each such designation shall revoke all prior designations by the same Optionee, shall be in a form prescribed by the Company, and will be effective only when filed by the Optionee in writing with the Secretary of the Company during the Optionee's lifetime. 9 EX-4.2 4 ex4-2.txt 2002 STOCK PLAN Exhibit 4.2 INTERNATIONAL FIBERCOM, INC. 2002 STOCK PLAN 1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are to attract and retain the best available personnel for positions of responsibility within the Company, to provide additional incentive to employees, consultants and other individuals who provide services to the Company, and to promote the success of the Company's business through the grant of shares of the Company's Common Stock. 2. DEFINITIONS. As used herein, the following definitions shall apply: 2.1 "AWARD" shall mean a grant of one or more Shares. 2.2 "BOARD" shall mean the Board of Directors of the Company or, when appropriate, the Committee administering the Plan, if one has been appointed. 2.3 "CODE" shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder. 2.4 "COMMON STOCK" shall mean the common stock of the Company described in the Company's Articles of Incorporation, as amended. 2.5 "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. 2.6 "COMMITTEE" shall mean the Committee appointed by the Board in accordance with paragraph (a) of Section 4 of the Plan, if one is appointed. 2.7 "CONSULTANT" shall mean any natural person who provides bona fide consulting services to the Company; provided, however, no award hereunder may be granted to any person in connection with the provision of services incident to the raising of capital. 2.8 "EMPLOYEE" shall mean any person, including salaried officers and directors, employed by the Company. 2.9 "EXCHANGE ACT" shall mean the Securities and Exchange Act of 1934, as amended. 2.10 "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. 2.11 "GRANTEE" shall mean an employee, consultant or other individual who provides services to the Company who has been granted one or more Shares. 2.12 "PARENT" shall mean a "parent corporation," whether now or hereafter existing, as defined in Section 424(e) of the Code. 2.13 "PLAN" shall mean this 2002 Stock Plan. 2.14 "SHARE" shall mean a share of the Common Stock, as adjusted in accordance with Section 8 of the Plan. 2.15 "STOCK PURCHASE AGREEMENT" shall mean the written agreement between the Company and the Grantee relating to the grant of an Award. 2.16 "SUBSIDIARY" shall mean a "subsidiary corporation," whether now or hereafter existing, as defined in Section 424(f) of the Code. 2.17 "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 not exceed seven million five hundred thousand (7,500,000) shares. The Shares may be authorized, but unissued, or previously issued Shares acquired by the Company and held in treasury. 4. ADMINISTRATION OF THE PLAN. 4.1 PROCEDURE. 4.1.1 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. 4.1.2 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 therefore, and fill vacancies however caused; provided, however, that at no time may any person serve on the Committee if that person does not satisfy the non-employee director requirements of Rule 16b-3. -2- 4.2 POWERS OF THE BOARD. Subject to the provisions of the Plan, the Board shall have the authority, in its discretion: (i) to grant Shares; (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, Consultants and other individuals who provide services to the Company to whom, and the time or times at which, Shares 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. 4.3 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 Shares granted under the Plan. 5. ELIGIBILITY. Consistent with the Plan's purposes, Shares may be granted only to Employees, Consultants and other individuals who provide services to the Company as determined by the Board. 6. STOCKHOLDER APPROVAL AND EFFECTIVE DATES. The Plan became effective upon approval by the Board on January 15, 2002. No Award may be granted under the Plan after January 14, 2012 (ten years from the effective date of the Plan). 7. SHARE AWARDS. The Committee may award Shares to any Employee, Consultant or other individual who provides services to the Company. Restricted Stock may be awarded by a signed agreement between the Grantee and the Company containing such terms and conditions as the Board may determine. The Grantee as owner of such Shares shall have all the rights of a holder of Common Stock. 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, 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. -3- 9. TIME OF GRANTING SHARES. The date of grant of Shares shall, for all purposes, be the date on which the Board makes the determination granting such Shares. Notice of the determination shall be given to each Employee, Consultant 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. 10.1 AMENDMENT AND TERMINATION. The Board may amend or terminate the Plan from time to time in such respects as the Board may deem advisable. 10.2 EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or termination of the Plan shall not affect Shares already granted and such Shares 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. 11.1 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. 11.2 As a condition to the grant of Shares 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. 11.3 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. Shares may be evidenced by Stock Purchase Agreements in such form as the Board shall approve. If the Grantee is an employee of the Company, the stock purchase agreement awarding Shares to such individual shall state whether the election contemplated under Section 14 is permissible. 14. WITHHOLDING TAXES. Subject to Section 4.2 of the Plan and prior to the Tax Date, the Grantee, if an Employee of the Company, may make an irrevocable election to have the Company withhold from those Shares that would otherwise be -4- 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 Shares to the Grantee under the Plan. 15. MISCELLANEOUS PROVISIONS. 15.1 PLAN EXPENSE. Any expense of administering this Plan shall be borne by the Company. 15.2 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. 15.3 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. 15.4 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 Shares, 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. 15.5 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. -5- EX-5.1 5 ex5-1.txt OPINION AND CONSENT OF CHRISTIAN J. HOFFMANN, III Exhibit 5.1 January 31, 2002 International FiberCom, Inc. 3230 E. Broadway Rd, Ste. 200 Phoenix, Arizona 85040 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are familiar with the proceedings taken and proposed to be taken by International FiberCom, Inc., an Arizona corporation (the "Company"), with respect to 8,500,000 shares of Common Stock, no par value per share (the "Shares"), of the Company to be offered and sold from time to time pursuant to the Company's 2000 Directors Stock Option Plan and the 2002 Stock Plan (the "Plans"). As counsel for the Company, we have assisted in the preparation of a Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission to effect the registration of the Shares under the Securities Act of 1933, as amended. In this connection, we have examined the Articles of Incorporation and By-Laws of the Company, records of proceedings of the Board of Directors and stockholders of the Company, and such other records and documents as we have deemed necessary or advisable to render the opinion contained herein. Based upon our examination and inquiries, we are of the opinion that the Shares, when issued pursuant to the terms and conditions of the Plans, will be duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement described above. Very truly yours, /s/ Christian J. Hoffmann, III Christian J. Hoffmann, III For the Firm EX-23.2 6 ex23-2.txt CONSENT OF BDO SEIDMAN LLP Exhibit 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS International FiberCom, Inc. 3230 E. Broadway Rd., Suite 200 Phoenix, Arizona 85040 We hereby consent to the incorporation by reference in this Registration Statement of our report dated February 16, 2001, except for Note 3 which is as of March 30, 2001, relating to the consolidated financial statements and schedules of International FiberCom, Inc. appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 2000. /s/ BDO Seidman, LLP BDO SEIDMAN, LLP Los Angeles, California January 30, 2002 -----END PRIVACY-ENHANCED MESSAGE-----